SUSHIL KUMAR JHA, J.

1. This appeal has been placed before a Division Bench for testing the correctness of a decision of a learned single Judge in the case of Ramchandra Sah V/s. Chotam Sah 1971 BLJR 186. The fate of this appeal hinges on a pure question of law. But before I take up the question of law for determination, the relevant facts first.

2. The plaintiff in the action is the appellant here having come up against a judgment of reversal. The suit was decreed by the trial court. On appeal by the defendant-respondent the plaintiff-appellant lost in the court of appeal below and the suit was dismissed. The facts no longer in controversy and based either on the admitted case of the parties or on concurrent findings of fact of both the courts below, may conveniently be culled here.

3. The plaintiff-appellant instituted the suit for realisation of arrears of rent and eviction of the defendant-respondent from the house standing on holding Nos. 195 and 196 (new) ward No.2 circle No.10 situate in mohalla Sahebganj within the municipal limits of Chapra. The appellant claimed to be the owner of the land in question along with the house as it fell to his share on partition of the ancestral properties of both the parties. He further pleaded that the defendant was inducted as a tenant in 1949 at the fate of Rs. 73/- per month. He paid that for some time. Thereafter he ceased to pay and became a defaulter. On these allegations he claimed the relief for eviction and a decree for realisation of arrears of rent as already stated earlier.

4. The case of the defendant-respondent was that the house in.question was an ancestral property which, on partition of the joint family properties, was allocated to the share of the plaintiff-appellant. From the year 1949, however, for various reasons not relevant to recite here, he came to occupy the premises in question and he made a declaration put to that effect that he had become the owner of the premises and he shall not deliver possession of the house to the plaintiff. Since the year 1949, therefore, the defendant-respondent was in occupation of the premises as an owner under a title hostile to the plaintiff and he had perfected his title by prescription and adverse possession. The relationship of landlord and tenant between the parties was denied.

5. The trial court held that there was no relationship of landlord and tenant between the parties and, therefore, the plaintiff could not have any decree for realisation of arrears of rent. The possession of the defendant-respondent was merely permissive or as a licensee. The defence of acquisition of title by adverse possession was, therefore, negatived. Since, however, the plaintiff proved his subsisting title he was entitled to a decree for eviction on the basis of his title as a true owner, even though the case of landlord and tenant, as set up by the plaintiff, was not accepted. The suit for eviction was accordingly decreed as the plaintiff was held to be entitled on the findings to an equitable relief under Order 7 Rule 7 of the Code of Civil Procedure.

6. In the appeal by the defendant-respondent before the lower appellate court the same facts and the legal position emerging therefrom were canvassed. The court of appeal below held that :-

"(1) The suit house is an ancestral property.

(2) It was partitioned in the year 1943.

(3) It was allotted to the share of the plaintiff.

(4) The defendant continued in occupation of the suit house.

The defendants possession over the suit house was held to be merely permissive or that of a licensee and the plaintiff had a subsisting title to the suit properties. The defendants case of acquisition of title by adverse possession was also negatived. The court of first appeal, however, repelled the argument put forth on behalf of the plaintiff-appellant (respondent in the lower appellate court) that the order of eviction had rightly been passed by the trial court in view of the provisions of Order 7 Rule 7