JUDGMENT 1. This is defendants' second appeal, directed against the judgment and decree dated 25101977 passed by the II Additional District Judge, Faizabad, dismissing their first appeal and confirming the judgment and decree dated 2281975 passed by Munsif Sadar, Faizabad decreeing the plaintiff's suit No. 703 of 1969. 2. The facts giving rise to this appeal have a long drawn out history. One Sheo Narain was a tenant of the shop in question, on a monthly rent of Rs. 10. Trilochan Singh had purchased the said property belonging to father of Ram Raghubir. This property was purchased through a sale deed dated 2591964. Trilochan Singh moved an application under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act (No. 3 of 1947) (hereinafter to be referred as the 'Old, Act'), for leave to file a suit for eviction of Sheo Narain. This application was dismissed by the Rent Control and Eviction Officer. Trilochan Singh went up in revision and the Additional Commissioner, Faizabad, vide his order dated l21968 allowed the revision and granted permission to file the suit for eviction. Sheo Narain, feeling aggrieved by the order, went up in revision before the State Government and the State Government had been pleased to stay the institution of the suit in pursuance of the order dated 121968 passed by the Additional Commissioner. The State Government allowed the revision on 19101968 filed b Sheo Narain and the order passed by the Additional Commissioner was set aside. During the pendency of this revision Sheo Narain died on 12101968. It may further be mentioned that Trilochan Singh had given notice of termination of tenancy to Sheo Narain on 31101966 and thereafter he gave another notice to Sheo Narain regarding termination of tenancy on 1921968 after permission had been obtained from the Additional Commissioner, Faizabad. It may be observed that if Sheo Narain had been alive, in pursuance of the order passed by the State Government setting aside the order of the Additional Commissioner, the colour of the case would have been changed. However, the plaintiff, in pursuance of the notice of termination of tenancy served on Sheo Narain, filed the present suit against the legal heirs alleging that Sheo Narain was only a statutory tenant and, therefore, the legal heirs we're liable for ejectment as the tenancy rights could not be inherited. However, the plaintiff, in pursuance of the notice of termination of tenancy served on Sheo Narain, filed the present suit against the legal heirs alleging that Sheo Narain was only a statutory tenant and, therefore, the legal heirs we're liable for ejectment as the tenancy rights could not be inherited. The plaintiff alleged that he wanted to reconstruct the building in a different form and, therefore, the eviction of the legal heirs of the statutory tenant was essential, hence he filed the suit for ejectment. 3. The suit was resisted by the defendants. The contesting defendants averred that the order dated 19101968 of the State Government was challenged by the plaintiff in a writ petition but the same was dismissed. It was stated that their position is that of tenants and Sheo Narain was not a statutory tenant and, therefore, they had inherited the tenancy rights. The notice served under Section 106 of the Transfer of Property Act was also challenged. The defendants also, by amending the suit, expressed their willingness to comply with the requirements of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (U.P. Act No. 13 of 1972) (hereinafter to be referred as the New Act'). This suit was decreed on 2441971. Smt. Genda Devi and others went up in appeal. The appeal was allowed and the case was remanded vide order dated 3181973. The observations, inter alia, were to the effect that the Munsif shall decide the additional issue relating to the status of the defendants as tenants of the disputed shop, by application of the 'New Act' and the availability of the benefit of Section 43 of the said Act. Other issues were also to be framed, whether the plaintiff had any cause of action against the defendants and whether plaintiff had sent any notice on 811967 and if so, what was its effect. 4. The learned Munsif, after considering all the issues, decreed the suit and the defendants, feeling aggrieved, went up in appeal but the same was dismissed, as mentioned above. This is how this second appeal is before this Court. 5. I have heard the learned counsel for the parties and gone through the record. The short question canvassed by the learned counsel for the defendantappellants goes to the very root of the case and, therefore, requires serious consideration. This is how this second appeal is before this Court. 5. I have heard the learned counsel for the parties and gone through the record. The short question canvassed by the learned counsel for the defendantappellants goes to the very root of the case and, therefore, requires serious consideration. The learned counsel argued that in the plaint it was categorically asserted that Sheo Narain was a statutory tenant. He, therefore, argued that a suit for ejectment against the defendants was incompetent and not maintainable. He pointed out that ejectment could only take place of a tenant but if the legal representatives of the statutory tenant were to be thrown out from: the premises then a title suit with relief for possession ought to have been filed. He maintained that in case the plaintiff had filed a suit for title and possession it would have opened altogether a new line of defence to the defendants to protect their rights. On the other hand, the learned counsel for the plaintiffrespondent argued that the suit was for possession, but without ejectment possession was not possible and, therefore, merely by the use of word ejectment it could not alter the relief claimed in the plaint. 6. In order to investigate whether the suit was actually for possession or was for ejectment, it is necessary to examine the averments made in 'the plaint and the written statement. On the top of the plaint it is mentioned that the suit is for ejectment and damages. In para 1 of the plaint the location of the suitproperty has been mentioned and it is asserted that the plaintiff is the owner of the property by virtue of sale deed executed in his favour on 2591964. In the second paragraph it is mentioned that Sheo Narain, son of Raghubir, was the tenant of the said shop at Rs. 10 per month. In paragraph 3 it is mentioned that by a notice dated 31101966 the tenancy of Sheo Narain was terminated and the notice also asked for possession of the said shop. In paragraph 4 it is mentioned that permission had been applied for under the 'old Act' and T it was refused but the Additional Commissioner, Faizabad, granted him permission vide order dated 121968. In paragraph 4 it is mentioned that permission had been applied for under the 'old Act' and T it was refused but the Additional Commissioner, Faizabad, granted him permission vide order dated 121968. In paragraph 5 it is mentioned that the shop was not vacated by Sheo Narain and, therefore, on 1921968 another notice for vacating the premises was sent but no heed was paid to it by Sheo Narain. In paragraph 6 it is mentioned that Sheo Narain preferred revision against the order of the Additional Commissioner, before the State of Uttar Pradesh and filing of the suit on the basis of permission granted on 121968 was stayed. Sheo Narain died on 12101968 and, therefore, the defendants were arrayed in the said suit. On 19101968 the State Government was pleased to set aside the order passed by the Additional Commissioner granting permission for filing the suit but that was against law and was of no avail and the plaintiff was entitled to the benefit of the order dated 121968. In paragraph 9 it is stated that Sheo Narain was statutory tenant. His tenancy had been terminated and the tenancy rights, therefore, were not heritable and, therefore, they were not entitled to hold possession of the said shop. In paragraph 10 it is stated that the plaintiff, after demolishing the adjoining shop and the shop in suit, wanted to construct a shop in the lower storey and in the upper storey he wanted to construct a residential portion for himself but the defendants were staying on the said premises by claiming themselves to be heirs of late Sheo Narain and claimed to be the tenants, hence they were liable for ejectment. In paragraph 11 the rate of damages has been assessed for the use and occupation of the premises and in para 12 it is stated that the cause of action accrued to the plaintiff on 12101968 when Sheo Narain died and in para 13 it is mentioned that for purposes of ejectment the annual rental value of the prpperty is said to be Rs. 120 and for purposes of damages the valuation was fixed at Rs. 270 and for the loss suffered due to nondelivery of possession the defendants were liable to pay at the rate of Rs. 20 per month and hence the court fee of Rs. 51.50 was being paid. 120 and for purposes of damages the valuation was fixed at Rs. 270 and for the loss suffered due to nondelivery of possession the defendants were liable to pay at the rate of Rs. 20 per month and hence the court fee of Rs. 51.50 was being paid. In the relief clause it is prayed that the decree for ejectment and possession of shop no. 996 situate in Mohalla Bazaza be passed in favour of the plaintiff and the usual prayer for damages etc. has also been mentioned. The learned counsel for the appellants argued that in para 1 the plaintiff had clearly asserted with respect to His title, by stating that h was owner of the property in view of the sale deed executed in his favour on 2591964. The learned counsel pointed out that in the written statement this was admitted, hence there was no necessity to frame any issue with respect to title. He further pointed out that the defendants took all possible pleas which they could take and it was incorrect to say that under mistaken belief they were precluded from challenging the title. The title was pleaded and if there was doubt the defendants could have indicated that for purposes of suit it was necessary to prove the title and unless and until it was not challenged, it was not necessary for the plaintiff to prove his title. The learned counsel further pointed out that para 10 of the plaint was material, wherein it was clearly stated that the defendants had no right4 as tenant, to continue and were liable to be evicted. He argued that a perusal would show that the title was never denied by the defendants and the plaintiff could claim ejectment only on two grounds, namely, title and contractual relationship. He maintained that the suit was not based on any relationship or agreement and in this view of the matter the defendantappellants could not be permitted to turn round and claim that they could have taken the defence of adverse possession since that title of the plaintiff was already admitted by the defendants and it could not be assumed that admission was available for certain purpose only. He further argued that when the title is pleaded withreference to the date of purchase, it was open for the defendants to press any plea, whatsoever, they thought necessary and if the defendants had failed to press the plea, it was not open to them to plead, at this stage, that had it been a title suit several pleas would have been available to the defendants. The learned counsel argued that on the basis of pleadings coupled with the relief, it is clearly indicated that the suit was based on title and, if for any reason, the defendants had not thought it to be a suit for title then at this stage it was not open to them to advance any plea and their attempt is mala fide in raising the plea that the plaintiff ought to have filed a suit for possession. It may be mentioned that although a large number of documents had been brought on record but the sale deed has not been produced nor has it been indicated from whom the plaintiff had purchased the property. 7. The written statement filed on Behalf of the defendants indicates that the suit was contested on the ground that the defendants were in possession of the shop, not by virtue of being statutory tenant but were in possession of it in accordance with law and the tenancy rights were heritable. Even by the amendment of the written statement it appears that the case was that by virtue of promulgation of the 'new Act' they were entitled to the benefit of provisions of Section 39 of the said Act. It has also been asserted that the defendants were always treated as tenants and, therefore, the suit was liable to be dismissed. It was also pointed out that when the plaintiff lost all hopes with respect to his case filed under Section 3 of the 'old Act, then he tried to demolish the shop in possession of the defendants illegally, therefore, deceased Sheo Narain had to file a suit in the court, for permanent injunction, which was decreed on 2591969 and the plaintiff was restrained from demolishing the shop. This clearly shows that the suit was filed for purposes of ejectment and claiming damages, while it was resisted by the defendants on the ground that the tenancy rights were heritable. This clearly shows that the suit was filed for purposes of ejectment and claiming damages, while it was resisted by the defendants on the ground that the tenancy rights were heritable. The learned counsel for the appellants pointed out that if the plaintiffrespondent had filed a suit on the basis of title, then various defences would have been open to the defendants, such as, that the suit property was owned by the father of Ram Raghubir ho died 20 years back, after Hindu Succession Act had come into force, and that on the death of (father of) Ram Raghubir the premises in suit devolved on Ram Raghubir and his sister who is still alive and is living at Allahabad. It was Ram Raghubir and his sister who had become owners of the premises in suit, after the death of their father, and Ram Raghubir was not the sole owner and competent to execute the sale deed with respect to the premises in question and the deceased Sheo Narain had taken the shop on rent fifty years back on behalf of joint Hindu family consisting of Sheo Narain and his sons. Sheo Narain and his sons carried on the ancestral business in the premises in suit and the living members of the aforesaid joint Hindu family, since, were still carrying on ancestral joint family business in the premises in suit, they were entitled to hold possession. The defendant would have also raised the plea that the court fee paid was insufficient and that Sheo Narain having taken the shop by virtue of being a member of joint Hindu family and the entire joint family was in possession, hence they had perfected their title by adverse possession against the plaintiffrespondent. The plea of adverse possession, therefore, would have become the main defence of the appellants. 8. I have given my anxious consideration to the entire facts and circumstances brought on record and after hearing the learned counsel for the parties it is established beyond reasonable doubt that Sheo Narain was a statutory tenant and it is not necessary to refer to decisions on this question, as in the plaint itself Sheo Narain has been described as Statutory tenant. Therefore, in my opinion, the suit for ejectment could not have been filed. The only suit that could have been brought against the defendants could have been a title suit with relief for possession. Therefore, in my opinion, the suit for ejectment could not have been filed. The only suit that could have been brought against the defendants could have been a title suit with relief for possession. In the instant case the title deed has not been filed. The reading of the averments narrated above would show that the dispute between the plaintiff and the defendants was with respect, to tenancy rights. The plaintiff was denying, the defendants to be their tenants, while defendants, all the time, were asserting that they were the tenants. In this view of the matter, the cause of action mentioned in the suit being 12101968 when Sheo Narain died and the plaintiff had right to bring a suit, assumes immense importance. It is also evident from the court fee paid in the case that the plaintiff was seeking ejectment of the defendants from the shop in question and that is why only on annual rental value, court fee was paid. Court fee was also paid with respect to damages. If the plaintiff really had the intention to confine his relief to possession on title, then he would have paid court fee as prescribed under Section 7(v) of the Court Fees Act wherein it is provided that in suits for the possession of land, buildings or gardens, Court fee payable would be according to the value of the subjectmatter. Sub clause (xx) of Section 7(v) provides that where the subject matter is a building or garden, according to the market value of the building or garden, as the case may be. In my opinion, the plaintiff, in order to avoid the payment of court fee and to mislead him, filed the suit by stating that it was a suit for ejectment and damages. If the suit had not been described as suit for ejectment and damages, in all probability the office would have pointed out deficiency in the court fee. It is, therefore, not open for the plaintiff to now turn back from the original plea and assert that it was a suit for possession coupled with ejectment. Mere use of the word Dakhalyabi would not alter the nature of the suit. Everywhere the word Bedakhli has been used. It is, therefore, not open for the plaintiff to now turn back from the original plea and assert that it was a suit for possession coupled with ejectment. Mere use of the word Dakhalyabi would not alter the nature of the suit. Everywhere the word Bedakhli has been used. I am unable to find myself in agreement with the learned counsel for the respondent that it was not necessary to give any notice and the tenancy of Sheo Narain having been terminated, hg defendants were not entitled to hold on their possession of the shop Technically, the argument may be sound but, in my opinion, no one should be subjected to technical tortures. If a notice had been given to the defendants, the whole case of the plaintiff would have been made crystalclear and the defendants would have become conscious of their status. I have already mentioned above that the whole nature of the suit would have changed, had Sheo Narain been alive, because the permission granted to file the suit had already been set aside and prior to it the plaintiff had been restrained from filing the suit on the basis of permission granted by the Additional Commissioner, under orders of the State Government. Thus, I find ample force in the submission of the learned counsel for the appellants that in order to regain possession from the appellants the plaintiff could only file a title suit and, therefore, claim for ejectment and possession in the present suit was not maintainable in the eyes of law. There is, also, force in the submission of the learned counsel for the appellants that innumerable defences would have been open to the appellants if the plaintiff had correctly filed the suit and had not relied upon the jugglery of words and its interpretation. I fully find myself in agreement with the submission of the learned counsel for the appellants that ejectment suit could only be filed against a tenant and the very fact that the suit had been described as the suit for ejectment and damages, it had conveyed altogether a different impression in the mind of the contesting defendants and they were deprived of proper defence. 9. The learned counsel for the respondent argued that if it was only a question of payment of court fee, then the court could order for the same at any stage of the suit. 9. The learned counsel for the respondent argued that if it was only a question of payment of court fee, then the court could order for the same at any stage of the suit. In support of his contention he placed reliance on a decision of this Court in Rani Devi v. Trilok Singh, (AIR 1980 Allahabad 111) wherein a learned Single Judge observed as under: For suits by a tenant against a trespasser or between rival tenants the valuation is to be made in accordance with Section 7(VB). Only in suits in which proprietary possession is claimed valuation for purposes of courtfee is to be made on the market value as given in Section 7(VA). Therefore, where 'A' filed a suit against 'B', for possession of the house alleging that he was the allottee of the house and 'B' was trespasser Section 7(VB) will apply and the property will have to be valued on annual rental value for purposes of courtfee. In my opinion, there is no dispute so far as the law is concerned but the law will have to be applied in the light of circumstances emerging out in every case. This observation was made by the learned single Judge, Hon'ble Mahabir Singh, J. (as he then was) while disposing of a revision, the facts of which were that the plaintiff had filed a suit for possession of a house. He had alleged that he was allottee of the house and that he had allowed the defendant to live with him for sometime but in his absence she got the house allotted in her name. Later, on representation the allotment was cancelled but she forcibly occupied the house and took away some articles. He valued the suit on the annual rent of Rs. 132. It is thus clear that it was not the owner claiming possession on title but an allottee who was claiming possession from a trespasser. The ruling, therefore, would not be applicable lo e facts of the present case. 10. In the instant case the suit was not contested on the basis of tenancy rights or any allotment order but from the very beginning the assertion of the plaintiff was that the statutory tenant having died the defendants were liable to be ejected. The ruling, therefore, would not be applicable lo e facts of the present case. 10. In the instant case the suit was not contested on the basis of tenancy rights or any allotment order but from the very beginning the assertion of the plaintiff was that the statutory tenant having died the defendants were liable to be ejected. In the plaint, everywhere, the word Bedakhli had been used except under the relief clause where Dakhalyabi has been used but there also it is a qualified attempt on the part of the plaintiff to mingle it up with ejectment and that is why in relief clause it was prayed that a decree for ejectment and possession be passed in favour of the plaintiff. Except for this averment in the relief clause there is not a whisper in the suit to indicate that the plaintiff was bringing a suit for purposes of possession on the basis of title. 11. I have already dealt with the history of the case and in my opinion the poor defendants are entitled to protection for the failure of the plaintiff to come with clean hands to the Court by setting up a clearcut case in the plaint. The plaintiff came to court alleging that he was the proprietor of a certain building and that he had rented it out to deceased Sheo Narain whose tenancy had been determined and, therefore, at the time of death he was merely a statutory tenant and the legal heirs had no right to hold the possession of the suitproperty and were liable ta ejectment. No specific issue dealing with the plaintiff's title was framed and, unfortunately, in the case no evidence as to title was given. The courts below also did not take pains for getting clarification with respect to the pleadings. The remandorder by the appellate Court, in fact, gave time to a lot of unnecessary controversy. An application for amendment was moved by the defendants alleging that they had become tenants under the 'new Act,' so they were entitled to claim benefit of Section 43 of the said Act. The learned lower appellate court observed that in view of the amendment incorporated in the written statement the above points which involved investigation of question of fact and law, become material in the suit and would have a bearing on the result of the suit. The learned lower appellate court observed that in view of the amendment incorporated in the written statement the above points which involved investigation of question of fact and law, become material in the suit and would have a bearing on the result of the suit. These points certainly required adjudication in the case after framing proper issues on these points and allowing the parties to adduce evidence on those points. It was further observed that after service of notice on Sheo Narain, another notice was sent under registered cover to Sheo Narain deceased, vide Ext. 16 dated 1921968, stating that his tenancy was determined by two notices dated 31101966 and 811967 and then reminding Sheo Narain deceased to vacate the disputed shop after payment of the entire arrears of rent and damages for use and occupation. The court observed, on the basis of arguments, that further question of fact would arise whether in fact any notice dated 8.1.1967 as referred to in Ext. 16 was given by the plaintiff and served on Sheo Narain deceased, so as to have the effect of waiving the notice in suit dated 31.10.1966. This point will again have a bearing on the result of the suit. It would be clear from the observations of the learned lower appellate court that the plaintiff was contesting for the ejectment and defendantappellants were resisting the suit on the ground that they were tenants. Therefore, the submission of the learned counsel for the respondent that if the defendants did not take the plea of adverse possession or defective title of the plaintiff they have to blame their own selves, has no substance. In fact it is the averment in the plaint that misled the defendants and if the defendants had not admitted the position of the plaintiff as a landlord they could not have asserted that they were the tenants. Therefore, there is force, as observed above, in the submission of the learned counsel for the appellants that in case the plaintiff had filed a title suit, the defendants would have been in a position to set up the plea of adverse possession and repudiate the title of the plaintiff. Thus, the plaintiff was not entitled to the relief granted by the courts below and his suit ought to have been dismissed. 12. Thus, the plaintiff was not entitled to the relief granted by the courts below and his suit ought to have been dismissed. 12. In view of the aforesaid discussion the result is that the appeal succeeds and is allowed. The judgments and decrees passed by the courts below are set aside and the suit of the plaintiff is dismissed with cost throughout. (Appeal allowed)