1. This is an appeal by the defendant and it arises out of a suit for recovery of house rent and for ejectment. The plaintiff relied upon a parwana dated 9th May 1926, by which the proprietor of the land purported to settle with him 2 bighas 5 kathas and 16 dhoors out of plot No. 480 of village Dhaudanr at a rent of Rs. 7 per bigha. The plaintiff, however, admitted that the area settled with him out of plot No. 480, was 2 bighas 16 kathas only so that some 10 kathas were not included in the area settled with the plaintiff. The plaintiff alleged that on the land which was settled with him, he built & house which he let to the defendant at a monthly rental of annas 8 and that as the defendant was not paying the rent agreed upon, he sought to eject him and also to recover arrears of rent. The defence was that the house was built by the defendant himself on land which had been settled with him by the proprietor under a parwana of 1921 and that the relationship of landlord and tenant did not exist between himself and the plaintiff. On a consideration of the evidence of the parties, the trial Court came to the conclusion that the parwana relied upon by the defendant was genuine, that his evidence regarding the construction of the house was more reliable than that of the plaintiff and therefore, dismissed the plaintiff's suit, holding that the relationship of landlord and tenant between the parties did not exist. In the course of its judgment, the trial Court observed that there was no anomaly in the settlement of 4½ kathas of land with the defendant as the latter claimed inasmuch as it was admitted that 10 kathas out of plot No. 480 was not included in the area which was settled with the plaintiff. Against the Munsif's decision, the plaintiff appealed to the Subordinate Judge. The Subordinate Judge considered that it was necessary to appoint a commissioner for the purpose of ascertaining whether the 4½ kathas of land settled with the defendant was included in the area which was settled with the plaintiff. The appellate Court accordingly set aside the decree of the trial Court and remanded the case for disposal, directing the trial Court to afford the plaintiff an opportunity of taking out a commission for the purpose of ascertaining whether the disputed house stands on that portion of the land which was settled with the plaintiff.

2. It is contended before me by the defendant-appellant that the plaintiff having sued on the allegation that the defendant had been his tenant, is not entitled to succeed at all if he fails to prove that the relationship of landlord and tenant had existed between himself and the defendant, and as the appellate Court has not reversed the finding of the first Court on this point, the plaintiff's suit should be dismissed. For this proposition, reliance was placed on a decision of the Madras High Court in 21 I.C 560.1 In that case it was held that where in an ejectment suit, the plaintiff treats the defendant as a tenant and fails to prove the tenancy, he should not be allowed to prove his title for the purpose of ejecting him as a trespasser. The judgment is a short one and does not reveal the facts of the case or the reasons for the decision. The reasons are stated to be contained in para. 4 of the judgment of the Subordinate Judge which was appealed from. It is impossible to say, therefore, whether in that case the question of plaintiff's title had been raised by the parties; but it appears that this was not the case.

3. The next case that was relied upon was 57 Cal. 349.2 in that case also it was held that where, in an ejectment suit the defendant is alleged to be a tenant and a question of title is raised, the proper course is to dismiss the suit if it be found that there was no contract of tenancy between the plaintiff and defendant and that it was improper to convert the suit into a suit for a declaration of plaintiff's title and recovery of possession. This decision appears to be based largely on a consideration of Section 7(xi)(cc) of the Court-Fees Act, which prescribes that the court-fee payable on a suit to eject a tenant or person holding over shall be calculated on the rental whereas in a suit to recover possession of land from a trespasser the court-fee payable is calculated on the market value of the land. The learned Judges who decided this case appear to have disagreed with the observations made by Cammiade, J., sitting singly in another case. I am unable to understand why, merely because the court-fee payable to eject a person who has been a tenant, is different from the court-fee payable in a case where the defendant is a stranger, it should be held that a plaintiff who has proved his title to the land is not entitled to recover possession from a person who is a trespasser on the land merely because the plaintiff has failed to prove the relationship of landlord and tenant. In both cases the plaintiff proves his title and in both cases the defendant is a trespasser or the plaintiff would not be entitled to eject him. As was observed by the learned Judges of the Calcutta High Court:

“So long as a person remains a tenant, the landlord has no right to recover immovable property from him. His right to do so arises only when the relationship between him and the tenant has ceased and the tenant has lost his right to remain in possession of the property. I can conceive of no case in which the landlord can recover immovable property from the tenant qua tenant, i.e, when the tenancy subsists.”

4. The mere fact that S. 7(xi)(cc) refers to the defendant as a tenant or a person holding over does not mean that he is not a trespasser as the learned Judges of the Calcutta High Court pointed out. On the expiry of the tenancy the person who was a tenant becomes a trespasser. It is true that the Legislature has prescribed a lesser court-fee in a suit to recover possession from an old tenant than in the case of a suit to recover possession from a stranger; but this difference does not after the fact that both cases are suits in ejectment. That a person who has sued in ejectment alleging that the relationship of landlord and tenant has existed between himself and the tenant and has failed to prove that relationship is nevertheless entitled to recover possession was held by a Full Bench of the Allahabad High Court in 25 All. 498.3 The plaintiff in that case alleged that he was the proprietor of a certain building and that he leased it to the defendant and the latter had not paid the rent agreed upon. The plaintiff therefore sought to eject the defendant and recover possession of the building. He failed to prove the contract between himself and the defendant. It was held that even though the plaintiff had failed to make out his case as to the letting, he was nevertheless entitled to the decree on his title unless the defendant could show a better one, and that the fact that no distinct issue as to the plaintiff's title had been framed could not be construed to the prejudice of the plaintiff inasmuch as the issue had in fact been tried and it could not be said that the defendant had been in any way taken by surprise. In the present case there is no suggestion that the defendant was taken by surprise. In fact he produced a document, the parwana on which he relied, and the question whether the land settled with the defendant was included within the area settled with the plaintiff was thoroughly investigated by the trial Court on evidence which the defendant placed before the Court. This Full Bench decision of the Allahabad High Court was not considered by the Division Bench of the Calcutta High Court to which I have referred.

5. The next point raised on behalf of the defendant-appellant is as to the procedure adopted by the appellate Court. It is contended that the decision of the appellate Court that the plaintiff should have an opportunity of applying for the issue of a commission amounts to giving the plaintiff an opportunity of adducing additional evidence at the appellate stage and that therefore the procedure to be followed is that prescribed by O. 41, R. 28, that is to say, the appellate Court should either have issued a commission itself or directed the trial Court to issue the commission and, after the return of the commission, the appellate Court should have taken into consideration the commissioner's report or examined the commissioner, if the parties so desired, but that the appellate Court should not have set aside the decree of the trial Court and remanded the case for a fresh consideration by that Court after giving the plaintiff an opportunity of applying for a commission. In support of the order passed by the Court of appeal below, the learned advocate for the respondents referred to the order passed by a Division Bench of this Court in A.I.R 1938 Pat. 421.4 In that case a commission had been issued by the trial Court. Neither party objected to the commissioner's report; but the Court declined to act on it and proceeded to determine the suit without reference to the commissioner's report. The decision of the trial Court was affirmed in appeal. This Court held that it was a case in which it was essential for the purpose of identifying the land in dispute that a commission should have issued and that the trial Court having issued a commission should have proceeded to issue a fresh commission if dissatisfied with the report of the first commissioner. In these circumstances, this Court set aside the decree passed by the Court of appeal below and remanded the suit to the trial Court for disposal. There is no real analogy between that case and the present. The trial Court itself by issuing a commission had decided that it was necessary for the purposes of the suit that such a commission should issue and, having so decided, it was clearly the duty of the Court to secure the report or the evidence of a commissioner with which it was satisfied. In the present case no question of issuing a commission arose in the trial Court at all and it was only at the appellate stage that question arose. The appellate Court should therefore have adopted the procedure prescribed by rule 28.

6. In the result the order of the appellate Court is set aside and the appellate Court is directed now to proceed in accordance with law as explained above. Costs of this Court will abide the result.

G.N/R.K

7. Order set aside.