JUDGMENT P.R. Sharma, J. 1. This is a Defendant's second appeal against the judgment and decree dated the 4th of April 1958 passed by the Addl. District Judge Gwalior, in Civil Appeal No. 361 of 1953 whereby he confirmed the judgment and decree dated the 4th of August, 1953 passed by the Civil Judge II Case Gwalior in Civil Suit No. 439 of 1949. 2. The suit out of which the present appeal arises was filed by the present Respondent Badriprasad against Shankarlal for ejectment and permanent injunction on the ground that the Defendant was occupying a portion of the temple property which belongs to the Plaintiff in the capacity of a tenant in lieu of services rendered by him as a 'Pujari' in the temple. It was alleged that a few days prior to the suit when the Plaintiff wanted to repair a portion of the temple premises, the Defendant asserted his own title and did not allow the Plaintiff to make the necessary repairs. It was further alleged in the plaint that on a piece of land forming part of the temple property being acquired by the Municipality a dispute had arisen between the Plaintiff and one Ghanshyam as to the right to receive the compensation. Ghanshyam filed Civil Suit No. 168 of 99 in the Court of the Addl. Sub-Judge Lashkar in which both Gokulprasad, the Plaintiff in the present suit and Shankarlal, the Defendant, were joined as co-Defendants, Shankarlal claimed that he had been in possession of the property in dispute for more than 30 years and that neither Gokulprasad nor Ghanshyam had any right to receive the compensation in respect of the acquired land Shankarlal not having led any evidence in support of his claim, it was held by the Addl. District Judge that Ghanshyam and Gokulprasad were jointly entitled to receive the compensation awarded in respect of the said land. 3. It was contended by the Plaintiff in the present suit that the judgment (Ex. A/1) passed by the trial Court which was confirmed on appeal as per Ex-A/2 would operate as res judicata against the Defendant Shankarlal. The Defendant in his written-statement contended that the temple along with the land appurtenant thereto was gifted to the Defendant's grandfather Bholaram by Pandit Balbhadra and since that time the Defendant's ancestors had been in continuous possession thereof as owners. The Defendant in his written-statement contended that the temple along with the land appurtenant thereto was gifted to the Defendant's grandfather Bholaram by Pandit Balbhadra and since that time the Defendant's ancestors had been in continuous possession thereof as owners. The Defendant contended that inasmuch as he had been in possession of the suit property adversely to the Plaintiff for a period exceeding 12 years, the Plaintiff had no right to sue in respect of it. 4. The trial Court held that the property in dispute belongs to the Plaintiff but that there was no evidence to show that the Defendant was residing in a portion thereof as a tenant in lieu of the services rendered by him in the temple. It further held that the judgment passed in Civil Suit No. 168 of (sic)9 which was confirmed on appeal operates as res judicata against the Defendant and that the possession of the Defendant was not adverse to that of the Plaintiff. It, therefore, decreed the Plaintiff's claim for ejectment and permanent injunction. 5. On appeal the finding of the trial Court that the Plaintiff had failed to prove that the Defendant was his tenant was affirmed, but it was held that the evidence on record establishes the fact that the Defendant's ancestors were permitted to reside in the temple, premises in connection with Pujari's work. The lower appellate Court, therefore, held that possession of the Defendant was permissive in nature. It further held that the Plaintiff had been granting leases in respect of various portions of the temple premises and that the Defendant had himself signed the rent-note Ex. P/9 executed by one Shankar Bhoi in favour of the present Plaintiff and Balbhadra. Having regard to all these facts as also the absence of any evidence to prove the alleged gift of the temple property, either wholly or in part, by Balbhadra in favour of the Defendant's grandfather, the lower appellate Court held that the possession of the Defendant could not be treated as adverse to the Plaintiff 6. It may be stated at the outset that the Defendant at first pleaded a gift in respect of the entire temple property. On proof being given by the Plaintiff about the inner and the outer portions of the temple premises being rented out by him to one Ramsahal under the rent-note Ex. P/6 and to Shankar Bhoi under Ex. It may be stated at the outset that the Defendant at first pleaded a gift in respect of the entire temple property. On proof being given by the Plaintiff about the inner and the outer portions of the temple premises being rented out by him to one Ramsahal under the rent-note Ex. P/6 and to Shankar Bhoi under Ex. P/9, the Defendant tried to confine his claim on the basis of the alleged gift only to the temple and a 'dalan' in front thereof 7. Having regard to the evidence of the various acts done by the Plaintiff in assertion of his right of ownership in respect of the temple property, the concurrent finding of the Courts below on the point that the Plaintiff has proved himself to be the owner of the property in dispute and that the Defendant has failed altogether to establish any gift in favour of any of his ancestors of any part of the temple property must be affirmed. 8. It was contended by the learned Counsel for the Appellant in support of this appeal that the suit being merely one for ejectment and permanent injunction it was not open to the Courts below to go into the question of title. It may be observed in this connection that issue No. 1 which distinctly relates to the question of the Plaintiff's title to the property in dispute, necessarily, arose on account of the plea set up by the Defendant himself in his written-statement. The plaint contained an averment to the effect that the Defendant was challenging the Plaintiff's title and neither the relief as to enactment nor permanent injunction could in the circumstances of this case be granted without going into the question of title in its entirety. 9. In the case of Abdul Ghani v. Musummat Baboi ILB 25 All. 286 the Plaintiff sued to recover possession of a house which it was alleged was occupied by the Defendant on a monthly rent of one rupee. The Defendant denied that she had ever taken the house on rent from the Plaintiff and pleaded her on title. The Court of first instance found that the Plaintiff had failed to prove the tenancy as alleged by him, but that he had all along been in proprietary possession of the house and that the Defendant's possession was merely permissive in nature. I, therefore, decreed the Plaintiff's claim. The Court of first instance found that the Plaintiff had failed to prove the tenancy as alleged by him, but that he had all along been in proprietary possession of the house and that the Defendant's possession was merely permissive in nature. I, therefore, decreed the Plaintiff's claim. On appeal the Subordinate Judge reversed the decision on the sole ground that the Plaintiff not having come to the Court with the case that the Defendants possession was permissive, he could not succeed in the suit. The Full Bench set aside the decree passed by the Subordinate Judge and observed as under: We think that there was nothing in the claim and in the issues which were raised which could possibly have taken the Defendant by surprise, and now that the true facts have been ascertained by the Court, the technical difficulty which has been relied upon cannot, we think, be allowed to defeat the Plaintiff's claim. 10. In the case of Balm kund v. Dalu ILR(sic) 25 All. 498 the Plaintiff alleged that he was the owner of a certain cattle-shed a portion of which had been rented out by him to the Defendant The Defendant denied the Plaintiff's ownership of the cattleshed and pleaded that he had been in proprietary and adverse possession of it for several years. Notwithstanding the fact that the trial Court did not frame any issue on the question of title evidence as to title was adduced on both sides. The trial Court held that the Plaintiff had failed to prove the lease and yet decreed the suit on the ground that the Plaintiff had proved that the cattleshed belonged to him. On the matter coming up in Letters Patent Appeal before a Full Bench it was observed by Stanley C. J. as follows: The question of title was clearly raised in the pleadings, and the evidence on both sides was directed to it. The Defendant could not be, and was not, taken by surprise in regard to it. The principle underlying these decisions is that if the Court sees that the Plaintiff is entitled to the relief which he claimed, although on grounds other than those put forward in the plaint, the Court should grant him such relief if the Defendant was not thereby taken by surprise. The principle underlying these decisions is that if the Court sees that the Plaintiff is entitled to the relief which he claimed, although on grounds other than those put forward in the plaint, the Court should grant him such relief if the Defendant was not thereby taken by surprise. Both of the aforesaid decisions were followed by a Division Bench of the Patna High Court in the case of Mohammad Mian v. Jugeshwar Prasad (AIR 1951 Pat. 55) wherein it was observed as under: If the question of title has been raised in the trial of the suit and has been investigated, the parties knowing about it and adducing evidence on the point, and the Court is in a position to give the Plaintiff the relief asked for on the basis of his title, there is no reason why the Court should drive the Plaintiff to hit another suit in order to get this relief, provided that the Plaintiff has done nothing to disqualify him from receiving equitable relief, e.g., by coming to Court with a false story. The question of Court-fees it was observed would not be a bar to the grant of such relief. 11. As I have already pointed out above, in the present suit both parties in their pleadings relied on their title to the property in dispute in support of their case. A distinct issue regarding the Plaintiff's title to the suit property was framed by the trial Court and each party adduced evidence in support of the title asserted by it. I am, therefore, of the opinion that the lower appellate Court having held that the Defendant's possession was permissive the decree passed by it cannot be assailed before me in Second appeal unless the rinding of fact upon which it is based itself could be challenged having examine the evidence on record. I am satisfied that this finding was correctly arrived at. 12. I am, for the reasons stated above, of the opinion that the decree for ejectment and permanent injunction passed by the Courts below must be affirmed. Since the questions as to title and adverse possession raised by the Defendant were fully investigated by the Courts below on the merits, the question as to whether the defence was barred by res-judicata on account of a previous decision must be deemed to be of only academic importance. Since the questions as to title and adverse possession raised by the Defendant were fully investigated by the Courts below on the merits, the question as to whether the defence was barred by res-judicata on account of a previous decision must be deemed to be of only academic importance. Suffice it to say that the learned Counsel for the Plaintiff was unable to show that the Court which tried the former suit was competent to try the present suit. 13. In the view which I have taken of the case on the merits it is not necessary for me to go into the question whether the decision in the former suit would opterate as res judicata. 14. In the result this appeal has no force and is hereby dismissed with costs. Counsel's fee Rs. 25. Appeal dismissed