1. This is a plaintiff's appeal arising out of a suit to eject the respondents Mirchi and Banwari from a house which the plaintiff acquired under a sale-deed of the 27th June, 1921. The plaintiff came into Court on the allegation that the house had originally been purchased in execution of a decree by one Hira Lal who had leased it to Mirchi under a Kirayanama. The plaintiff bought the house from Hira Lal's heir. He alleged that Mirchi had sub-let the house to Banwari whom he also impleaded.
2. Banwari denied that any relationship of landlord and tenant existed between him and the plaintiff and set up his own title on the ground of adverse possession.
3. The first Court found that Mirchi had never obtained possession of the house and was therefore not a tenant and. could not be called upon to pay rent, that Banwari was in occupation as a trespasser but has not acquired an adverse title. The suit was accordingly decreed for possession.
4. The lower Appellate Court has accepted the finding that Banwari was in possession as a trespasser and has held that as the plaintiff only came to the Court paying Court fee on one year's rent and founding his suit on the kirayanama, the first Court ought not to have gone into the question of title at all, but only determined whether the parties were to one another in the relation of landlord and tenant. A reference has been made to Balasidhantam v. Perumal Chetti (1904) 27 M.L.J. 475.
5. In appeal it is contended that the question of title was raised by the plaintiff in his plaint and that the Court was competent to decide it. The appellant's counsel claims that he should have been allowed to make good any deficiency in Court fee in the present suit.
6. This contention cannot be accepted. The plaint makes it perfectly clear that the suit was founded only on the kirayanama which contained a condition for ejectment. The cause of action is said to have arisen at the expiry of one year from the execution of this document. There was no prayer for a declaration of the plaintiff's title and the Court fee was not the correct one in a suit for title. In addition to the ruling cited by the lower Appellate Court reference may be made to Pramatha Nath Gangoly v. Amiruddin Sheikh (1920) 24 C.W.N. 151.
7. The appeal was properly rejected by the lower Appellate Court and must fail here. The appellant's Counsel desires to withdraw his appeal with permission to file a fresh suit. This is allowed. The appellant will pay the respondents' costs including in this Court fees on the higher scale.