Reuben, C.J.

1. This appeal is directed against a decision of the Subordinate Judge of Patna confirming a decision of the Additional Munsif, Patna, decreeing a suit for the eviction of the defendants-appellants from a house situated in the northern portion of holding No. 59 of Circle No. 167 of Patna City. The suit was filed by the plaintiff as landlord, suing to evict the appellants as tenants on the termination of their tenancy by notice to quit. The appellants contested and raised a question of title. They denied the title of the plaintiff and set up a title in themselves under an oral gift made by Budha Batau, father of the plaintiff, in favour of defendant 1.

The Courts below rejected the story of the alleged gift. They held the title to be vested in the plaintiff. They did not accept, however, the story that the appellants entered into occupation of the house as tenants under the plaintiff. Their finding is that the parties are related and that, as the appellants were in difficulty as to accommodation, they were allowed by the plaintiff to enter into permissive possession of the house. On these findings, the plaintiff was given a decree for eviction as in a suit for recovery of possession from a trespasser.

2. In upholding the decision of the Munsif, the Subordinate Judge relied on the decision of Beevor J. reported in -- Saral Sonar v. Sudama Singh (A), in which his Lordship himself relied on a Full Bench decision reported in -- Abdul Ghani v. Mt. Babni 25 All 256 (B). Our attention has been drawn to an earlier decision of Shearer J. reported in -- Seetha Beherani v. A. Jagannath (C) in which his Lordship took a contrary view and distinguished the Full Bench decision mentioned above and also another Full Bench decision reported in the same volume, 25 All 498 , Balmakund v. Dalu (D). It is not necessary for me to re-examine this matter as I have dealt with it at some length in -- Mohammad Mian v. Jugeshwar Prasad AIR 1951 Pat 550 (E) in which I came to the following conclusion:

"It appears to me that the relief, which the Full Bench of the Allahabad High Court considered the Courts could and should give, is an equitable relief entirely within the discretion of the court within the provisions of Order 7, Rule 7, Civil P. C. If the question of title has been raised in the trial of the suit and has been investigated, the parties knowing about it and adducing evidence on the point, and the Court is in a position to give the plaintiff the relief asked for on the basis of his title, there is no reason why the Court should drive the plaintiff to file another suit in order to get this relief, provided that the plaintiff has done nothing to disqualify him from receiving equitable relief e. g., by coming to Court with a false story."

Shearer J., who was a member of the Bench, agreeing with me, observed:

"Where the Court, is unable to say, on the evidence, whether the defendant is a tenant or a licensee but is able to say definitely that if he is not the one, he is the other the position is quite different, and there is no difficulty in passing a decree."

3. It has been urged that a plaintiff who comes to the Court with one story cannot be allowed to succeed on a different case. This is not an invariable rule -- Sri Mahant Gobind Rao v. Sita Ram Kesho : 2 CWN 681 (F). The question of title was put in issue in the present case by the appellants themselves and has been fully investigated between the parties. In the circumstances it cannot be said that the Munsif has exercised his jurisdiction incorrectly by refusing to drive the plaintiff to file a fresh suit.

4. Another contention before us raised the question of valuation namely, that the valuation for the purpose of jurisdiction in a title suit to evict a trespasser would be different from that to evict a tenant from the same premises and that, therefore, prejudice is likely to be caused by the case being dealt with by a Court which would not have jurisdiction to try an ordinary title suit for the eviction of a trespasser. That there is some substance in the objection regarding valuation is borne out by the record which shows that about the year 1929, a sum of Rs. 1,500 was spent merely in repairs of the building in question. It is also indicated by the rent claimed which is Rs. 20 per month. This rent on the basis of twenty times of the annual rental would give a valuation of Rs. 4,800. The situation of the house alone, namely that it is a double-storied house within the Patna City Municipality, is sufficient to indicate that such a suit would be outside the pecuniary jurisdiction of the Munsif who tried the case, whose powers were limited to suits of the valuation of Rs. 1,000.

The provision as to the entertainment of objections on the ground of over-valuation or under valuation affecting the jurisdiction of the Court below are contained in Section 11, Suits Valuation Act. Under Clause (a) of Sub-section (1) of that section, such an objection would not be entertained by an appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded or in the lower appellate Court in the memorandum of appeal to that Court. On the facts of the case, the objection could not have been taken in the Court of first instance. It could, however, have been taken in the memorandum of appeal in the lower appellate Court. This was not done.

Under Clause (b) it is still open to the appellate Court to entertain such an objection if it is satisfied not only that the suit or appeal, as the case might be, was over-valued or under-valued with the result of affecting jurisdiction but also that the over-valuation or under-valuation, as the case might be, has prejudicially affected the disposal of the suit or appeal on merits. In the present case the facts are clear. The defendants claim under an oral gift and, therefore, have no title. They are admittedly in possession only since 1944 or 1945. There is, therefore, no question of adverse possession. The title of the plaintiff, who is the son of Budha Babu and whose co-sharers are parties to the suit and did not contest his title, is clear.

5. For these reasons, the appeal fails and is dismissed with costs.

Choudhary, J.

6. I agree.