1. This is an appeal by the plaintiffs and arises out of a suit brought by them against three defendants for ejectment. The plaintiffs' case was that the property in suit originally belonged to the father of these three defendants; and that in execution of a mortgage-decree against their father the property was sold in the year 1907 and purchased by the plaintiffs. They further alleged that after they had taken possession defendant No. 1 and the husband of defendant No. 3 two of the sons of the mortgagor judgment-debtor took a lease of the land in suit under a kabuliyat in the year 1919. Defendant No. 3 is the widow of the eldest son of the mortgagor. Defendant No. 2, the third son, did not join in the kabuliyat. But it appears that after the lease was granted to defendants Nos. 1 and 3 defendant No. 2, as found by the Munsif, also came and lived on the land. The suit was constituted against defendants Nos. 1 and 3 as an ejectment suit against tenants after the expiry of the term of the lease. The defendant No. 2 was, not a tenant. The plaintiffs, therefore, in. the plaint asked for a declaration of their title as purchaser in execution of the mortgage-decree arid also asked for a decree against defendant No. 2 as trespasser.
2. The learned Munsif found the plaintiff's title under the auction-sale in execution of the mortgage decree and also found that defendants Nos. 1 and 3 were tenants' under the kabuliyat of 1919. The learned Munsif further found that defendant No. 2 was really licensee of the other defendants and had no title to the land and made a decree in favour of the plaintiffs against all the defendants.
3. The lower Appellate Court on appeal by defendant No. 2 alone has dismissed the plaintiffs' suit on the ground that the suit was really a suit for ejectment of all tenants as contemplated by Section 7, Clause xi of the Court Fees Act and, therefore, the plaintiffs could get no relief against defendant No. 2 unless a suit properly constituted against a trespasser was brought.
4. The learned Subordinate Judge is correct in the view to the extent that the Court-fee paid on the suit was as contemplated by Clause xi of Section 7 of the Court Fees Act. But I have had the plaint read to me and I have no hesitation in saying that the plaint was one not strictly within the contemplation of Clause xi of Section 7. The suit asked for a declaration of title and also asked for a relief against defendant No. 2 on the footing that he was a trespasser. The learned Munsif gave a decree to the plaintiffs apparently without any objection as to the insufficiency of the Court-fee paid by the plaintiffs. I think the learned Subordinate Judge in view of the frame of the suit should not have dismissed the suit on the ground that the Court-fee paid was insufficient, but I think he ought to have given an opportunity to the plaintiffs to value the suit properly and to pay the necessary Court-fee and disposed of the matter on the merits trying the suit as made in the plaint with the prayers contained therein.
5. The result, therefore, is that I set aside the judgment and decree of the lower Appellate Court and send the case back to him to try the appeal on the merits after demanding proper Court-fees from the plaintiffs and when such Court-fee is paid he should dispose of the appeal according to law.
6. In the circumstances of this case I make no order as to the costs of this, appeal, Costs of the Courts below will abide the result.