The determination of Court-fee is based on the averments and relief sought in the plaint, and in an eviction suit, the question of title can be considered incidentally.

S.K.Katriar, J.

1. The appellant is the defendant against a judgment of reversal. This appeal is directed against the judgment dated 23-9-2000, passed by the learned Ist Addl. District judge, East Champaran, Motihari, in Eviction Appeal No. 6 of 1995 (Basudeo Prasad Maskara V/s. Krishna Nandan Jha and Anr.), whereby the same was allowed, the defendants eviction from the suit premises ordered for, after setting aside the judgment dated 5-7-1995, passed by the learned Munsif, Motihari, in Eviction Suit No. 2/7 of 1994 (Basudeo Prasad Maskara V/s. Krishna Nandan Jha and Anr.).

2. The plaintiff (respondent 1st set herein) instituted the suit for eviction of the defendants (the appellant and respondent 2nd set herein) for their eviction from the suit premises. The plaintiffs case as set out in the plaint is that Brijnandan Jha, father of the defendants, had been inducted as a tenant in the suit premises had vacated the same on 19-10-1991, and died soon thereafter on 11-1-1992. The defendants, who are full brothers and sons of the said Brijnandan Jha, were inducted as tenants who entered the suit premises on 1-2-1992 as per an oral agreement and on monthly rental of Rs. 250.00 . According to the further case of the plaintiff, the defendants paid rent up to July 1992, stopped paying rent from August, 1992, and did not pay till the date of institution of the suit. The plaintiff, therefore, instituted the suit for eviction of the defendants on the ground of default in payment of rent as well as on the ground of personal necessity, namely, Ajay Kumar Maskara, the plaintiffs son, was married and was without engagement and a separate business had to be set up for him.

3. The defendants filed separate written statements, Defendant No. 1 (Krishnanandan Jha, and the appellant herein) filed written statement and set up title adverse to the plaintiff and, therefore, there was no occasion to pay rent. His further case on the question of personal necessity, as stated in (sic) contained in Paragraph 3 is personal affair of the plaintiff and has been written in a distorted way."

4. Defendant No. 2 (Raj Kumar Jha, and respondent 2nd set herein) filed a separate written statement and stated in Paragraph 3 therein that it is correct to say that there was oral tenancy between the plaintiff and Brijnanadan Jha, who had vacated the suit premises on 19-10-1991, and had died soon thereafter on 11-1-1992. His further case is that the defendants had occupied the suit premises on rent on 1-9-1992 on the basis of an oral tenancy, and the rent had been paid upto December, 1993.

5. The plaintiff and defendant No. 1 led evidence in support of their respective cases. Defendant No. 2 did not lead evidence in support of his case. The trial Court held at one place that "in the light of the above discussions and findings I find that the plaintiff has proved the tenancey between the parties and this issue is decided accordingly..." At another place he concluded that"... I find that the plaintiff has failed to prove need itself. Even the plaintiff has failed to establish the relationship of landlord and tenant between the parties. This issue is, therefore, decided accordingly..." The suit was dismissed.

6. The plaintiff appealed. The learned Court of appeal below has held that the plaintiff has been able to prove prima facie his title over the suit land. He has also held there is relationship of landlord and tenant between the parties. He has further held that there was default on the part of the defendants in payment of rent. He has also upheld the plaintiffs case of personal necessity.

7. Defendant No. 1 has preferred the present appeal. The plaintiff has been arrayed as respondent No. 1 herein, and defendant No. 2 has been impleaded as respondent No. 2 herein.

8. While assailing the validity of the impugned judgment, Mr. Yogendra Mishra, learned Counsel for the appellant, submitted that he has challenged the plaintiffs title and has set up title adverse to t