A landlord is not required to pay ad valorem court fee in an eviction suit when the question of title is raised by the tenant and the court goes into that question at the instance of the tenant but the landlord does not pray for a decree for eviction on the basis of title.

Satyeshwar Roy, J.

Heard the learned counsel for the parties. As the points involved in all these cases are identical, the matter is being disposed of by this common order.

2. It was submitted on behalf' of the petitioners that as an issue on the question of title has been framed by the court below, the opposite parties, plaintiffs in the court below, must pay advalorem court fee. There appears to be confusion on the question whether in a suit filed by landlord for eviction of tenant from a building, if the question of title is required to be gone into on being raised and pressed by the tenant, the landlord shall have to pay advalorem court fee even if he neither raised the question of title nor prayed for a decree on the basis of title.

3. The opposite parties filed three separate suits for eviction of three tenants-petitioners from three tenanted buildings on the allegation that the petitioners were tenants of the opposite party. The former in the written statements, inter-alia, stated that they have purchased the property and were in possession of the same as owners. The question of title was raised in the written statement.

4. The trial court did not frame any issue on title. The petitioners filed C.R. Nos. 280 to 282 of 1988(R). It was ordered that as the petitioners had raised the question of title in the written statements, if they press that issue, the court below shall frame an issue on that point and decide the same. An issue on title in all the suits was framed as pressed by the petitioners.

5. The petitioners in the court below contended that as an issue on title has been framed and it shall be gone into, the opposite parties in all the three suits must pay advalorem court fee on the value of the properly. The court below has negatived the contention. That is impugned.

6. The petitioners reiterated in this court the contention made on their behalf in the court below. It was submitted by Mr. Eqbal, learned counsel for the petitioners, that when ever an issue on title is framed, be it at the instance of the defendant-tenant or at the instance of plaintiff-landlord, plaintiff-landlord must pay advalorem court fee. On behalf of the Opposite Parties, Mr. Chatterjee, learned counsel, urged that if the question of title is to be gone into at the instance of the plaintiff, further court fee is payable. He submitted that as in these cases the question of title has been raised by the defendants and the plaintiffs till now have not prayed for a decree on the basis of title, no further court fee is payable. Mr. Eqbal relied in Smt. Kasturi Devi vs. Shripal Singh: A.I.R. 1954 Patna 128, Ramchandra Sab V. Chotan Sah: 1971 B.L.J.R. 186, Sheo Sankar Prasad V. Barhan Mistry, 1985 P.L.J.R. 358 and Sardendu Ghosh V. Binayendra Nath Ghosh and Anr : S.A. No. 48 of 1976 (R) decided on 13th October, 1980) and Raghubar Dayal Prasad V. Ramekbal Sah : A.I.R. 1986 Patna 78.

7. The written statement of defendant will neither change the nature of suit, nor the forum. If a landlord filed a suit for eviction of tenant on the basis of relationship of landlord and tenant) court shall go only into the question whether there is relationship of landlord and tenant. If the plaintiff fails in proving the relationship, the suit must fail. In these suits, the plaintiffs have prayed for a decree for eviction on the basis of relationship of landlord and tenant.

8. It is now settled that if the plaintiff fails to prove relationship of landlord and tenant and prays for decree for eviction on the basis of title, court may give him that relief in that suit, in view of Order VII Rule 7 of the Civil Procedure Code, if the parties have led evidence on the question of title and the plaintiff has not forfeited his right to seek relief on equitable ground. In that case, the plaintiff shall be required to pay advalorem Court fee on the value of the property in suit. What is 'the legal position regarding payment of court fee when in a suit where question of title is r