N.M. KASLIWAL, J.— Learned Single Judge by order dated July 12, 1985 has referred this case to the Full Bench for decision of the following issues :

1. Whether in a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under S. 13 of the Rajasthan Premises (Control of Rent and Eviction). Act, 1950, a decree for possession can be granted in favour of the plaintiff on the basis of his title ?

2. Whether when the present issue is framed mentioning the allegation of the title of the plaintiff also, the defendant asserts his own title and denied the plaintiffs and both the parties led evidence, can it be said that no prejudice is caused to the defendant if the decree for possession is based on proof of the title of the plaintiff ?

2. The facts of the case are that Gopal Lal plaintiff respondent filed a suit against Smt. Pushpa Sharma defendant-appellant for ejectment of certain residential premises situated in Jaipur City. The suit was based on the ground of default in the payment of rent for more than six months, material alteration in the premises and for reasonable and bonafide necessity of the plaintiff. The defendant in the written statement denied the tenancy as well as the ownership of the plaintiff. The defendant also set up a plea that she was herself the owner of the suit premises. The defendant denied almost all the allegations made in the plaint. The trial court on the basis of the pleadings of the parties framed as many as 9 issues but we are concerned only with issue No. 1 and 8 which read as under :

1. "Whether the plaintiff is the owner of suit premises and the defendant has taken from him the premises shown in para No.l of the plaint on rent for Rs. 50/- p.m. on 1-7-72?" (P)

2. Whether the suit is not maintainable and the plaintiff is not able to get the possession of the premises in suit without filing a suit for declaration and possession and praying poper Court Fees ? (D)

3. Both the parties led oral and documentary evidence and thereafter the learned Munsif while deciding issue No. 1 held that the defendant was not the tenant of the plaintiff. The trial Court also held that the plaintiff was the owner of the suit property. Learned Munsif did not consider it necessary to decide other issues as the defendant was not found to be the tenant of the plaintiff. The learned Munsif under issue No. 8 found that no prejudice had been caused to the defendant and therefore the suit can be decreed on the basis of title. Thus on the basis of the finding that the plaintiff had established his ownership of the suit premises, the suit of the plaintiff for possession of the suit property was decreed.

4. Aggrieved by the judgment and decree of the learned Munsif, both the parties filed appeals before the Learned District Judge. Learned District Judge by his common judgment dated 28-2-78 disposed of both the appeals. The appeal filed by the defendant was dismissed, while the appeal tiled by the plaintiff was allowed in part and it was held that the plaintiff was also entitled to a decree of mesne profits at Rs. 30/- p.m. from 1-7 72 to the date of handing over possession of the suit property to the plaintiff.

5. The defendant then filed a second appeal in the High Court and the learned Single Judge referred the case to the Full Bench for deciding the above mentioned issues of law and to decide the entire appeal.

6. The controversy raised in the case is that when a suit is filed for eviction on the basis of relationship of landlord and tenant on the grounds provided under section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as the Act), can a decree for possession be granted on the basis of ownership and title of the plaintiff, when relationship of landlord and tenant is not held established between the parties?

7. Mr. R.M. Lodha, learned Counsel for the defendant appellant submitted that in a suit for ejectment based on the relati

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