JUDGMENT S. C. Tripathi, D. S. M. Tripathi, B. D. Agarwal, JJ. 1. THIS is plaintiff's appeal. 2. THE property in dispute comprised of certain shops described by letters A, B, C, D and E in the sketch map appended to the plaint and situate in khetasarai, district Jaunpur. THE relief sought in the suit is the eviction of the defendants nos. 4 to 8 from these shops besides arrears of rent and perpetual injunction against the defendants 1 to 3. On May 10, 1966 counsel for the parties in the lower appellate court stated vide paper no, 205-A that the dispute is confined to the shops aforementioned. The plaintiff based his claim to the shops in dispute upon title. In paragraphs 1 to 8 of the plaint he has traced the title asserted to these shops. It has been averred that the shops were raised by his father. In paragraph 6 the contention is that there was a gift made orally by the father in favour of the plaintiff. The defendants nos. 4 to 8 have been described as tenants over these shops. The contention further is that the defendants 4 to 8 were in collusion with the defendants 1 to 3 who were interested to deny the plaintiff's title. The tenancy was determined by the plaintiff by notice under section 106 of the Transfer of Property Act given under registered cover on August 21, 1962. Initially the court fee paid by the plaintiff was on one year's rent besides upon the sum of Rs. 245/- claimed as arrears of rent. Later, however, in terms of the order of the court below dated September 27, 1965 the plaintiff added the relief of perpetual injunction against the defendants 1 to 3 and valued the property at Rs. 2500/- described as the market value thereof. The additional court fee of Rs. 500/- was also paid thereon. The suit, therefore, did not remain confined on the basis of the alleged tenancy of the defendants 4 to 8 alone. 3. ON May 13, 1966 learned Munsif, Shahganj, District Jaunpur decreed the suit for perpetual injunction against the defendants 1 to 3 and also for eviction against the defendants 4 to 8. The claim for damages for use and occupation against the defendants Nos. 4 to 8 from September 22, 1962 was decreed as well. The relief sought for recovery of Rs. The claim for damages for use and occupation against the defendants Nos. 4 to 8 from September 22, 1962 was decreed as well. The relief sought for recovery of Rs. 245/-as arrears of rent was rejected. In the appeal filed against the decree by the defendants 1 to 8, it was held that the shops in question had been constructed by the plaintiff's father as claimed by him. It was not accepted, however, that there was oral gift by the plaintiff's father in his favour. The plaintiff was found to be a co-owner of these shops along with other co-sharers. For the defendants 4 to 8 the finding is that they were not shown to have been admitted as tenants by or on behalf of the plaintiff. The decree of the trial court was reversed taking the view that the suit could not be maintained because the plaintiff had failed to establish the relationship of landlord and tenant as against the said respondents Nos. 4 to 8. The appeal was accordingly allowed and the suit brought by the plaintiff dismissed on December 6, 1967. 4. SRI Sankatha Rai, learned counsel for the appellant urged that in view of the findings recorded by the courts below with respect to the title of the plaintiff to the disputed shops, the suit could not be dismissed despite the failure of the plaintiff appellant to establish that there was the relationship of landlord and tenant between him and the defendants 4 to 8. In so far as the question of title to the shop is concerned, this stands concluded on the findings upon fact and there is no perversity or other legal infirmity shown to exist about it. The lower appellate court found distinctly on considering the relevant evidence both oral and documentary that the shop in dispute had been constructed by the predecessor in merest of the plaintiff. The construction was made around the period of 1922-23. The contention for the defendants 1 to 3 to the effect that the shops were raised by their order in or about 1951 was not found made out. With respect to the site, the finding that the predecessors of the plaintiff were the licensees and the construction was raised with the permission of the predecessors of the defendants 1 to 3 who were the Zamindars. With respect to the site, the finding that the predecessors of the plaintiff were the licensees and the construction was raised with the permission of the predecessors of the defendants 1 to 3 who were the Zamindars. In paragraph 24 of the written statement filed by him the defendant no. 2 set up the licence saying that the father of the plaintiff raised certain constructions on this land with their consent. The same thing is pleaded in paragraph 36 of the written statement filed by the defendants 1 and 3. In the witness box the defendant no. 2 was unable to make out that the shops in question were not raised by the predecessors in interest of the plaintiff or that this was not without the consent of the Zamindars. The licence, therefore, became irrevocable and in view of Sec. 9 of the Zamindari Abolition and Land Reforms Act the building and the site thereof are to be deemed settled with the plaintiff. In so far as the defendants 4 to 8 are concerned, the case of the plaintiff has been that they were admitted as tenants. The defendants 4 to 8 pleaded that they were taken in as tenants by or on behalf of the defendants 1 to 3. They have not set up a case of adverse possession in themselves. None of these defendants 4 to 8 has set up title to the shops in himself. Accepting as the lower appellate court found that these were not the tenants for or on behalf of the plaintiff, it does not follow that he was not entitled to evict them on the basis of title. 5. IN Bhagwati Prasad v. Chandramaul, 1966 ALJ 799 the Supreme Court observed that the general rule is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the agreement that a particular matter was not expressly taken in the pleadings would be purely forma] an 1 technical and cannot succeed in every case. The test is whether the parties knew the matter in question involved in the trial and did they lead evidence about it. 6. IN Abdul Ghani v. Mt. Babni, 25 All. The test is whether the parties knew the matter in question involved in the trial and did they lead evidence about it. 6. IN Abdul Ghani v. Mt. Babni, 25 All. 256 a Full Bench of this court took the view that in absence of the defendant being taken by surprise decree for possession can be passed on the strength of title despite the failure to establish the relationship of landlord and tenant. To the same effect is the decision of another Full Bench in Balmakund v. Dalu, 25 All. 498. In Rama Shankar v. Noor Mohammad, 1976 AIL LJ 748 the suit was based on alleged contract of tenancy. The lower appellate court found that no such contract was established. Adverse possession was also not made out. It was held that the suit could be decreed upon title. In a case where the question of title has also been gone into and the parties had led evidence, it is not necessary to direct the plaintiff to file another suit for possession on the basis of title and the suit could be decreed on the basis of the findings recorded by the courts below : that does not cause prejudice to either party. 7. APPLYING the principle cited above, it will be noticed as mentioned above that the plaintiff in the instant case based his claim upon title. In the plaint he made averments relating to his title to the shops in dispute. The title was traced on the basis that the shops had been raised by his predecessors- in- interest Evidence both oral and documentary was adduced on the subject by both the parties and there was discussion made elaborately with respect thereto. Under the order of the trial court the plaintiff amended the plaint seeking the relief of perpetual injunction as well against the defendants 1 to 3 and paid the requisite court fee calculated on the basis of the market value. Therefore, the suit could not fail merely because the plaintiff did not establish the relationship of landlord and teaant as against the defendants 4 to 8. 8. THE question next arises is whether the suit could be decreed in view of the failure of the plaintiff appellant to establish that there was oral gift made by his father. Therefore, the suit could not fail merely because the plaintiff did not establish the relationship of landlord and teaant as against the defendants 4 to 8. 8. THE question next arises is whether the suit could be decreed in view of the failure of the plaintiff appellant to establish that there was oral gift made by his father. In the absence of the gift the plaintiff would be a co-owner along with the other heirs of the deceased. THE father of the plaintiff died about 26 years prior to the suit. Some of the co- her is have migrated to Pakistan. It was argued for the respondents that their interest in the property vested in the custodian Evacuee property. THE position of the plaintiff would none the less be that of a co-owner along with the other owners of the property. THE law is settled that even in capacity as a co-owner the plaintiff may seek the relief of possession against the trespasser and also that he can claim the relief of perpetual injunction against the trespassers. In 5 All. 602, Hiralal v. Bhairon this Court endorsed the view taken in Second Appeal no. 47 of 1982 observing :- "Even if the land in suit is joint land belonging to all the co-sharers, the plaintiffs had a perfect right to come into court by themselves to eject defendants whom they regarded as trespassers on the land. THEre is no rule of law which prohibits one or more joint co-sharers from asking the court to eject persons trespassing upon common land. THE reason of the rule is clear. If trespassers were allowed to remain in possession, they might by prescription defeat the rights of the owners of the land ; and if the view of the law taken by the Judge were correct, any joint co-sharer declining to join the suit for ejectment would defeat not only his own share in the common lands, but also the right of the other joint co-sharers. This would be a result which the law cannot allow." In Nandlal Girdharilal v. Gulamnabi Jamalbhai Motorwala, AIR, 1973 Gujrat 131 (FB) C. J. Bhagwati (as he then was) observed at page 145 :- "The rule is well settled that a co-owner can without joining other co-owners maintain an action to eject a trespasser. This would be a result which the law cannot allow." In Nandlal Girdharilal v. Gulamnabi Jamalbhai Motorwala, AIR, 1973 Gujrat 131 (FB) C. J. Bhagwati (as he then was) observed at page 145 :- "The rule is well settled that a co-owner can without joining other co-owners maintain an action to eject a trespasser. Trespass is a wrong against possession and since every co owner is as much in possession of the whole of the property as the other co-owners, any co owner can protect his possession against the trespasser by tiling a suit to eject him. An act of trespass is an individual wrong against every co-owner and is therefore, actionable at the instance of each co-owner. This would appear to be clear on principle but apart from principle there is ample authority in support of it. We may refer only to one decision, namely, Shutari v. Magaesite Syndicate Ltd., ILR 39 Mad. 501=AIR 1915 Mad 1214. It was held by a division Bench of the Madras High Court in this case that one of several co owners can maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action," 9. IN Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 the Supreme Court observed that jurispurdentially it is not correct to say that a co owner of a property is not its owner. He owns every part of the composite party along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition take place. It was held: "..We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is." The fact therefore, that the plaintiff is shown to be one of the co-owners of the property does not preclude him from maintaining the suit against trespassers for eviction and the relief of perpetual injunction. 10. SRI S. C. Tripathi, learned counsel for the respondents referred to the cross objection filed by them and submitted that the defendant nos. 1 to 3 have matured title by adverse possession. It was argued that the defendant Nos. 4 to 8 refuted that they had been admitted as tenants by or on behalf of the plaintiff and the courts below also found accordingly. 1 to 3 have matured title by adverse possession. It was argued that the defendant Nos. 4 to 8 refuted that they had been admitted as tenants by or on behalf of the plaintiff and the courts below also found accordingly. These defendants claimed that they had been taken in as tenant by the defendants 1 to 3. The occupation of the defendants nos. 4 to 8, it is argued, be therefore, taken to that of the defendants 1 to 3 themselves. Assuming this position to be correct, it is of no avail to the respondents. The obvious reason is that according to the case of the defendants 1 and 3 as is manifest from paragraph 43 of the written statement filed by them, the shops were raised by their mother in the year 1951. To the same effect is the pleading of the defendant no. 2 in paragraph 32 of the separate written statement filed by him. The case taken is that the defendants 4 to 8 were admitted as tenants by them subsequent to these shops being constructed. The defendants 4 to 8 raised the plea that they had been taken in as tenants after the shops were built by these defendants 1 to 3 or their predecessors in interest. There was no question thus according to the defendants themselves of the defendants 4 to 8 being admitted as tenants prior to the year 1951. The suit was instituted or on October, 3, 1962. Thus it is within the period of 12 years from the period when the shops came into existence in accordance with the case of the defendants and therefore the defendants cannot claim 1o have acquired title by adverse possession. In view 'of the discussion made above, the appeal succeeds and is allowed accordingly. The suit shall stand decreed for eviction against the defendants 4 to 8 from the shops A, B, C, D and E in dispute and for perpetual injunction restraining the defendants 1 to 3 from interfering by themselves, their servants or agents with the possession of the plaintiff subsequent to the defendants 4 to 8 being evicted. The plaintiff shall recover also subject to the additional court fee being paid in execution against defendants 4 to 8 damage for use and occupation pendentelite and furture at the rate of Rs. 7/- per month. The plaintiff shall recover also subject to the additional court fee being paid in execution against defendants 4 to 8 damage for use and occupation pendentelite and furture at the rate of Rs. 7/- per month. The cross objection shall stand dismissed, Costs on parties. Appeal allowed.