T. N. SINGH, J. ( 1 ) THE facts are admitted, but the law is not and there is serious contest on both sides on the question of law that has fallen for decision in this revision. ( 2 ) THE revisionist is the defendant and nephew of the plaintiff/non-petitioner. A suit was instituted for recovery of "rent" against the instant revisionist/defendant and the arrears of rent claimed being Rs. 1,000/-, the suit was tried as a small cause. It was decreed. The defendant is, therefore, in this Court challenging in this Court, for the first time, the jurisdictional competence of the Small Causes Court to pass the decree. Shri Ramji Sharma, petitioner's counsel, concedes that the objection pressed here was not taken in the trial Court. But, he submits, any question of jurisdictional competence, and indeed the challenge that the decree or order was a nullity, can be pressed at any stage of any proceeding, at any forum, during the subsistence of the lis. ( 3 ) THE contention of Shri Sharma is that the Small Causes Court had no jurisdiction to try the suit because (i) it involved a question of "title"; and (2) what was claimed could not be "house rent" in respect only of which under Article 8 of the Second Schedule to the Provincial Small Cause Courts Act, 1887, for short, the 's. C. C. Act', the trial Court could have jurisdiction to try and decree the suit. ( 4 ) THE two-fold contention aforementioned is based on few admitted facts to which I may immediately refer. On both sides it is accepted that Lunindaram died leaving five sons including the plaintiff/non-petitioner and Topandas, father of the defendant/petitioner. It is also admitted that during his lifetime, late Lunindaram used to realise some amount as rent from his son Topandas. After Lunindaram's demise, his son plaintiff Ramchandra purchased ownership right in the suit property of three brothers who succeeded to the estate of late Lunindaram, evidently along with the plaintiff and their other brother, Topandas defendant's father. ( 5 ) IT is also admitted, as Shri Ramji Sharma concedes, that after his father's demise, Topandas had paid 4/5th rent for some period, as claimed by his brother Ramchandra. ( 5 ) IT is also admitted, as Shri Ramji Sharma concedes, that after his father's demise, Topandas had paid 4/5th rent for some period, as claimed by his brother Ramchandra. But, counsel submits, there can be no estoppel against law and if the payment had been made in ignorance of law, that would not defeat his right or that of his successor-in-interest, contemplated under the law. It is Shri Sharma's contention that whether by right of survivorship as a coparcener of his deceased father Lunindaram or as one of the legal heirs of late Lunindaram, by succession he had become, with his other four brothers, on the demise of Lunindaram, joint-owner of the suit premises, either as a coparcener or as a co-owner. If that position is accepted, then there can be no claim for "rent" against Topandas or for that matter, his son Sureshchandra, till such time as the property is not partitioned inasmuch as every co-sharer, co-owner, coparcener, whatever be the precise nature of his right, would have "ownership" in suit premises; till his right and interest of "ownership" in the property subsists it cannot be substituted by a lesser right of a "tenant". ( 6 ) SHRI A. N. Naik, who appears for the non-petitioner, has seriously contested the validity of the proposition canvassed. He has drawn my attention to paras 2 and 5 of the written statement. Indeed, I have also to look into para 1 of the plaint to appreciate the legal effect of the pleadings because the objection of maintainability has to be determined with reference primarily to the plaint. It is plaintiff Ramchandra's own case that the suit property was ancestral property of his father and on his father's death, the plaintiff and his four brothers Sewaram, Topandas, Mohanlal and Purushottamdas became owners in equal shares of the suit property. It is further stated in para 1 that Sewaram, Mohanlal and Purushottam had transferred to him by a registered deed their specific shares in the suit property as a result of which the plaintiff had become owner to the extent of 4/5th share in the suit property. In second para, plaintiff states that his brother Topandas was dead and the defendant, in his capacity as a son of Topandas, was occupying the suit house and he was tenant in respect of 4/5th share of the suit house on payment of Rs. In second para, plaintiff states that his brother Topandas was dead and the defendant, in his capacity as a son of Topandas, was occupying the suit house and he was tenant in respect of 4/5th share of the suit house on payment of Rs. 28/- per month. In his written statement, in para 2, the defendant denied that he was in occupation of 4/5th share of the suit property as a tenant. He further stated that defendant was a tenant jointly under Sewaram Mohanlal, Purushottamdas and Dropdidevi on payment of Rs. 35/- per month. There is also a clear and categorical averment in para 2 that there was no partition of the suit property and because of that the defendant was a tenant jointly under the plaintiff, Mohanlal, Sewaram, Purushottamdas and Dropdidevi. In para 5, is stated that the defendant paid rent up to 21-8-1985 to Dropdidevi at the rate of Rs. 35/- per month. ( 7 ) ON these pleadings, it is contended by Shri Naik that the defendant was bound by his admission that he was "tenant" of the suit premises. He has further submitted that the defendant has not set up his own independent title to the suit property. Therefore, counsel contends, the two-fold objection to the maintainability of the suit must fail. Indeed, counsel has proceeded further to submit that Dropdidevi was defendant's mother and, therefore, even if defendant's father Topandas had succeeded along with his other brothers to the estate of Lunindaram, it was still uncertain if late Topandas had not bequeathed by will his share and interest in the suit property to Dropdidevi. ( 8 ) COUNSEL has placed reliance on a decision of this Court in the case of S. K. Roy v. Dhansiram, (1969 MPLJ (Notes) 20 to submit that the maintainability of the suit in these circumstances was not amenable to challenge under Section 23, S. C. C. Act. I have gone through the Short Note and I am amazed how any assistance can at all be claimed from S. K. Roy (supra) by the non-applicant before me. There was no doubt an assignment of the lease-hold premises in favour of the plaintiff in that case but the fact to be noted is that it was a wholesale alienation and the alienors were not several. There was no doubt an assignment of the lease-hold premises in favour of the plaintiff in that case but the fact to be noted is that it was a wholesale alienation and the alienors were not several. In that case no question arose as to the character of the alienee, either as a co-sharer or co-owner, vis-a-vis the alienor. The Court held that the mere fact that there was no attornment of the lease would not non-suit the plaintiff because the relationship of landlord and tenant existed between the defendant and the predecessor-in-interest of the plaintiff. There can be no doubt, therefore, on these facts that the situation in S. K. Roy (supra) had an entirely different complexion and that decision has no bearing on the admitted facts of this case. ( 9 ) AT one stage, I was inclined to heed the prayer of Shri Naik that the question of maintainability being raised for the first time in this Court, let the question be decided on pleadings and evidence by the trial Court. However, the reason which eventually prevailed with me to repel the contention is the settled law and sound logic that the plaintiff has to stand or fall on the strength of his own case irrespective of any fact pleaded or proved by the defendant. Indeed, in deciding the issue of maintainability when raised, mostly on plaint averments the challenge rests and its validity is also tested accordingly. If no useful purpose will be served by a remand and the issue can be decided on admitted facts, the empty formality must be eschewed to advance the cause of justice. ( 10 ) TRUE it is that the defendant, in so many words, has not set up in himself his independent title to the suit premises, but the averment made as referred above in the written statement, have to be read in its entirety albeit in the context of the plaint averments. I entertain no doubt that a very clear and strong objection was taken by the defendant, despite alternative plea of his setting up his mother Dropdidevi as his landlady with other sons of late Lunindaram, that absence of partition of the suit premises disentitled the plaintiff to claim relief against him. About this fact, there cannot be, and there is not an iota of doubt. About this fact, there cannot be, and there is not an iota of doubt. Even if he had set up his further case in the alternative that there was a joint tenancy in his favour by his mother Dropdidevi and other sons of Lunindaram, by that fact itself his other defence is not nullified as the two pleas are not inconsistent. Rather they are complimentary. ( 11 ) ON admitted facts, therefore, and on the plaintiff's own case, therefore, set out in his plaint, I propose to examine law to decide the question of maintainability though raised in this Court for the first time. The fact of the matter is very clear that the suit premises is, admittedly, an undivided coparcenary property being admitted by the plaintiff himself as "ancestral" property. As a part of his argument, Shri Naik, therefore, read out to me a statement of law appearing at para. 322 of Mayne's Treatise on Hindu Law, Twelfth edition. I propose to extract not only the sentence underlined by him on which reliance is placed because the next sentence has also to be read and I extract the same also to make clear the actual position of law :"coparcener may be tenant.- There is nothing to prevent one co-sharer being the tenant of all the others and a in rent to them as such. But the mere fact that one member of the family holds exclusive occupation of any part of the property, carries with it no undertaking to pay rent in the absence of some agreement to that effect, either express or implied". (Emphasis added by Shri Naik ). In the aforequoted extract in Mayne is stated, undisputedly, the correct position in law and, indeed, a statement to similar effect does also appear in Raghavachariar's Hindu Law, also adopted by Shri Naik as a part of his argument. In the Seventh Edition, at p. 285, it is stated as follows :-"again even where there is no partition by mutual agreement between the members of a joint family, they may remain, for purposes of convenience, in occupation of separate portions of the family property, and till a new arrangement is come to between them each member remains in exclusive possession and enjoyment of a portion of the joint property. So also one coparcener can be the tenant in his individual capacity of the joint family as such under an agreement express or implied. " (Emphasis is mine) ( 12 ) IN both treatises, there can be little doubt, the word "tenant" has been used loosely because reference is explicitly made to the legal entitlement of a coparcener to occupy even exclusively any coparcenary property and agreement 'express or implied', is referred categorically as basis of liability to pay "rent" therefor by a coparcener. Therefore, a mere description of any coparcener as a "tenant" rendered by another or even his acquiescence would not make him so under the law relating to landlord and tenant. Neither would be the payment made "rent" under such law even if it was so described or agreed. Judicial opinion is also pressed in service, but it has to make clear at the outset that neither of the two cases cited considered law relating to coparcener, coparcenary property and rights or interests of coparceners in such property. ( 13 ) IN Shaikh Faqir Baksh v. Murli Dhar, AIR 1931 PC 63, the case was under Section 111, Transfer of Property Act and it was held that the plaintiff and defendant being pro indiviso joint proprietors of a property, plaintiff's tenancy right is not merged in the property right though the plaintiff was a lessee also of a part of the property before acquisition of proprietary right by both. A learned single Judge, in the decision of the Rajasthan High Court in Hari Pratap v. Ramgopal's case, AIR 1961 Raj 18, was called upon also to consider the purport and effect of the provisions of Sections 108 and 111 of the Transfer of Property Act. When a tenant purchased share from one of the lessors, it was held, the tenant could not be evicted from the entire shop and the plaintiff had a right only to decree for joint possession and for proportionate rent. Needless to stress the obvious that the purport and scope of Sections 108 and 111 are superscribed by definition of the term "lease" in Section 105. Evidently a coparcener cannot be a party to a "lease" under Section 105 because his right to enjoy coparcenary property is guaranteed under personal or family law and it has not to be conferred on him by the "transfer" envisaged statutorily. Evidently a coparcener cannot be a party to a "lease" under Section 105 because his right to enjoy coparcenary property is guaranteed under personal or family law and it has not to be conferred on him by the "transfer" envisaged statutorily. ( 14 ) SHRI Ramji Sharma has cited Jahuri Sah, AIR 1967 SC 109 , wherein the law relating to undivided property of co-owners was analysed and it was observed that any owner of undivided property was entitled to enjoy the whole of the property and was not liable to pay compensation to other co-owners who had not chosen to enjoy the property. Only when others are "deliberately excluded" that liability to compensation then may arise. Further, it was observed, co-owners are legally competent to come to any kind of arrangement for the enjoyment of the undivided property and are free to lay down any terms concerning enjoyment of the property. But, even in such a case, the provisions of the relevant Rent Control Act (Bihar Act) were held inapplicable on the footing that between co-owners inter se the relationship of landlord and tenant is not envisaged. Indeed, the fact that even such an "arrangement" could be about "compensation", was made very clear and beyond dispute. ( 15 ) I would think, therefore, Jahuri Sah (supra) supports the view I have taken that the learned commentators in Mayne's and Raghavachariar's Treseatises have used the term "tenant" very loosely and it also supports the proposition that a co-owner's or coparcener's liability to pay "rent" is nowhere laid down in law and what can be created under an "arrangement" or contract is liability as respects "compensation". One thing which must be reiterated to set at rest any doubt that may be entertained in any quarter about legal position is that long long ago, in 1863, their Lordships of the Privy Council spoke authoritatively as to what was the nature of the coparcenary property and what right and interest a coparcener had in coparcenary property. What they stated is still valid and shall be valid for all times till statutory interference comes in that regard. The distinctive feature of coparcenary property, their Lordships stated, was that "there is community of interest and unity of possession between all the members of the family. What they stated is still valid and shall be valid for all times till statutory interference comes in that regard. The distinctive feature of coparcenary property, their Lordships stated, was that "there is community of interest and unity of possession between all the members of the family. " ( 16 ) THE only question that still survives for consideration is how to construe the mandate and purport of Article 8 of the Second Schedule of Provincial Small Cause Courts Act in the context of Sections 15 and 23. A conjoint reading of Art. 8 and Section 15 (1) shows that suit for "house rent" is not excepted from the jurisdiction of a Small Cause Court, but for proper evaluation of the purport of Section 23 I extract Sub-Section (1) thereof :"notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. " ( 17 ) INDEED, the question to be posed and answered is, whether "compensation" which may be payable by any coparcener or co-owner for exclusive possession of any undivided house property would be "house rent" within the meaning of appropriate and relevant tenancy legislation or the liability would "depend upon the proof or disproof of a title. . . . . . . . ". It is not disputed that the suit property is located in Gwalior city and, therefore, the provisions of M. P. Accommodation Control Act, 1961 (shortly, Rent Control Act) are applicable to it. I had occasions to consider the question in several cases in this Court as to the character of any payment claimed to be made as "rent" for any premises in respect of which proceedings. are taken under the Rent Control Act against the tenant claiming eviction. I had occasions to consider the question in several cases in this Court as to the character of any payment claimed to be made as "rent" for any premises in respect of which proceedings. are taken under the Rent Control Act against the tenant claiming eviction. In Buddhu Lal, 1986 MPRCJ 234, it was held that the trial Court in a proceeding for tenant's eviction under the Rent Control Act was not required to construe merely the Rent Note, but other contemporaneous documents also to decide whether any "rent" was payable by the defendant so that he could be treated as a "tenant" to be evicted. In Ramjidas AIR 1987 Madh Pra, 78 the view taken was that a transferee co-sharer could only claim symbolical possession of his share of the property in a suit for partition instituted against other co-sharers when there was a "tenant" in occupation of the suit premises who could claim protection of the Rent Control Act. In Dhanno Bai, 1986 MPRCJ 275, landlord's plea for eviction of the defendant was denied by this Court taking the view that no "rent" was paid for the suit premises by the defendant though he had executed a "rent Note" as the defendant was held not to be a tenant, but a mortgagor in the facts and circumstances of the case. The character of possession of the assumed tenant this Court's view is, determined whether he was a "tenant" and what he paid was "rent" and nothing else. Indeed, this view flows from the statutory definition of the terms "tenant" and "landlord". ( 18 ) EVEN if it is assumed that the revisionist/defendant's father had paid any amount as compensation for occupying the suit premises to the exclusion of other coparceners, the mere fact that it was described by parties as "rent" would not make the amount paid "rent" in law. Indeed, the purport of Section 23 excludes the contrary view. Although the term "rent" is not defined in the Rent Control Act, the definitions of the terms "landlord" and "tenant" lend assurance to the view expressed. A person enjoying possession of any property without any right or interest therein is a tenant when he is allowed to do so on payment of rent to a person legally entitled to recover the same. A person enjoying possession of any property without any right or interest therein is a tenant when he is allowed to do so on payment of rent to a person legally entitled to recover the same. ( 19 ) THE very fact that there was no partition of the undivided joint family property made it clear that the "relief claimed" and the right which the plaintiff sought to enforce in the instant suit depended on the proof of his exclusive title to the entire suit property. Rent or compensation, by whatever name it is called, can be recovered from a person who has no legal right otherwise to enjoy the property and, therefore, it would be incumbent on the plaintiff to prove that coparcenary rights in the property had vanished. Viewing the matter from another angle it can be said that denial of the relief claimed by him would depend on "disproof' of plaintiff's entitlement. The term "title" has to be considered synonymous with full ownership and embracing all incidents thereof. Indeed, only in such a case upon partition of the property, the plaintiff seeking therein sole ownership of the suit premises, could be entitled in law to recover "rent" for that premises from the defendant. That indeed is very clear from the statutory entitlement contemplated under Section 2 (b) of the Rent Control Act wherein the term "landlord" is defined and his entitlement to receive rent is contemplated. ( 20 ) FOR all the foregoing reasons. I have no hesitation to take the view that the trial Court had no jurisdiction to enforce the right claimed in the suit and to grant relief in respect thereof; it was bound by the mandate of Section 23 to return the plaint to the plaintiff/non-applicant. ( 21 ) IN the result, the application succeeds and is allowed. The decree passed by the Court below is set aside. The plaint shall be returned to the plaintiff/non-applicant for taking recourse to appropriate proceedings according to law. At this stage, Shri Naik stands up to submit that under the law in Madhya Pradesh, the plaintiff has a statutory entitlement to an order for direct transmission of the plaint to the appropriate Court having jurisdiction to deal with the matter. The plaint shall be returned to the plaintiff/non-applicant for taking recourse to appropriate proceedings according to law. At this stage, Shri Naik stands up to submit that under the law in Madhya Pradesh, the plaintiff has a statutory entitlement to an order for direct transmission of the plaint to the appropriate Court having jurisdiction to deal with the matter. Shri Naik concedes that a prayer in that regard has to be made, but his oral prayer, I consider sufficient to make necessary direction because the question of limitation will arise and the plaintiff's right in that regard has to be protected. Accordingly, the trial Court shall take necessary steps as contemplated under the law for transmitting the plaint to the appropriate Court. It is, however, made clear that the necessary order shall be passed by the trial Court in presence of counsel who agree to appear thereat on 24-7-1987. Let the records go down at once. There shall be no order as to costs. Revision allowed. .