Judgment Ravi Nandan Sahay, J. 1. This is an appeal against the judgment and decree dated 18th September, 1989 passed in t. A. No.76/84 by Vlth Additional district Judge, Siwan, whereby he set aside the judgment and decree dated 6.7.1984 passed by 2nd Munsif, Siwan in T. A. No.177 of 1981 on the ground that the trial court in a suit for eviction of tenant had decided the question of title not incidentally but in a full-fledged manner and has given his definite finding on each and every point of controversy on question of title. 2. The plaintiff and respondents are own brothers. The suit was for recovery of arrears of rent and ejectment of the defendants from the disputed shop. The plaintiffs case was that both the brothers after partition were separate from a long time. The plaintiff had purchased certain property from his own income after partition. On the request of the defendants he was inducted as tenant on monthly rent of Rs,175/-. Thereafter, the defendant stopped the payment of rent from the month of January, 1981. The plaintiff needed the shop for his sons, so he filed a suit for eviction which was not contested by the defendants. 3. The trial court on consideration of the evidence came to the conclusion that there was cogent reason to hold that there was partition among the brothers. The sale-deed (Ext.5) by which shop was purchased, is in the exclusive name of plaintiff. The defendant admitted that he was separate with his brother and a partition had taken place but it took place two years after the property was purchased by the plaintiffs. 4. The trial court upheld the claim of the plaintiff that the defendant was mere tenant and he had no share in the property. The trial court further held that the plaintiff is the owner and landlord of the disputed shop, hence relief of ejectment can be granted as held by this Court in A. I. R.1982 Patna 42. The trial court decreed the suit and ordered for recovery of arrears of rent at the rate of Rs.175/- per month. 5. The question for consideration is whether it was right for the appellate court to have remanded the case for retrial instead of deciding the appeal itself on merits. 6. The trial court decreed the suit and ordered for recovery of arrears of rent at the rate of Rs.175/- per month. 5. The question for consideration is whether it was right for the appellate court to have remanded the case for retrial instead of deciding the appeal itself on merits. 6. Learned counsel for the appellant submitted that the appellate court has given an erroneous finding that the trial court has not given a categorical finding in respect of issue no.3 with regard to relationship of landlord and the tenant between the parties. The appellate court was only called upon to decide whether the finding of issue No.3 was correct. There was no necessity of remanding the case. 7. I have gone through the judgment of the learned Munsif and I find that he has given finding of relationship between the parties and on that basis he passed the decree of arrears of rent. No doubt, Munsif has also held that the plaintiff had title to the suit property and on that basis also he decreed the suit. 8. In Kashi Choudhary V/s. Mujataba Hassan and Anr. , reported in a. I. R.1982 Patna 42 : 1981 BLJ 679 , the suit for ejectment was decree on the basis that the plaintiff had title to the suit property although he had failed to prove that the defendant was tenant. The decision of Mohammad Mian V/s. Jugeshwar Prasad reported in A. I. R.1951 Patna 550 was followed in Kashi choudharys case (supra ). The Courts held that the defendant was not a tenant, but at the same time, held that the plaintiff had title to the suit property. A decree for ejectment was passed on equitable ground. 9. The appellants court remitted the case for fresh decision in the light of decision in Sheo Shankar Prasad v barhan Mistry and others, (1985 P. L. J. R.358), This decision, in my opinion, has laid down any principle and procedure on which eviction suit involving question of title is to be decreed. 10. The appellate court should have decided the dispute on the principle formulated in Mohammad Mian,: case (supra) which is still the leading case on the point in issue. 11. The facts of that case were identical with the facts of the present case. 10. The appellate court should have decided the dispute on the principle formulated in Mohammad Mian,: case (supra) which is still the leading case on the point in issue. 11. The facts of that case were identical with the facts of the present case. The suit was for ejectment of tenant on termination of the tenancy by a notice to quit and arrears of rent. The defendant denied the relationship of landlord and tenant and set up title in himself. The Munsif found the evidence insufficient to establish relationship of landlord and tenant. Hence he dismissed the suit without giving any finding on the question of title. On appeal, the Subordinate Judge agreed that evidence was insufficient to establish relationship of landlord and tenant. In view of decision in Ramdhin Lohar V/s. Ramdhani Mahto, (A. I. R.1949 Pat.379), however, he considered that the munsif ought to have decided the issue regarding plaintiffs title to the property. He remanded the case to Munsif for further trial and for a finding on the issue regarding the subsistence of valid title in the plaintiff. 12. The defendant came up in appeal to High Court. The High Court set aside the order of remand because circumstances did not justify a remand for further evidence. 13. The Subordinate Judge under the direction of the Single Judge reheard the appeal. He allowed the appeal on the finding that plaintiff has subsisting title, the suit for ejectment was decreed. 14. The defendants preferred second appeal before this Court which was heard by a Division Bench comprising Shearer and Repben, JJ. The proposition of law enunciated in ramadhin Lohars case was questioned as incorrect in view of decision of calcutta High Court in Govind Kumar V/s. Mahini Mohan, A. I. R.1930 Cal.42, approved of in an F. B. decision of this court in Narayan Jha V/s. Jogni Prasad, a. I. R.1934 Pat.184 (F. B. ). 15. In A. I. R.1930 Cal.42, their lordships of the Calcutta High Court dealt with an earlier decision in Gobinda V/s. Dulupada, A. I. R.1928 Cal.753, wherein it was held that valuation in such type of cases should be on the market value of the property. 16. This Court held the Calcutta decision approved by this Court in (A. I. R.1934 Pat 184) was obiter dicta. 16. This Court held the Calcutta decision approved by this Court in (A. I. R.1934 Pat 184) was obiter dicta. This Court further held that decision in ramadhins case was based on Full bench decision of the Allahabad High court in Balmukunds case, ILR 25 All 498 : 1903 A. W. N.112 (F. B.) and Abdul ghani V/s. Mt. Babki (25 All 255 : 1903 a. W. N.18 (F. B. ). 17. The Allahabad High Court in the above-reported cases granted decree for ejectment on the basis of title although relationship of landlord and tenant was not established. It was held that if defendant is not taken by surprise when question of title was raised, the plaintiffs plea cannot be defeated on technical pleas. 18. Balmukunds case (supra)was followed by Wort, J in Mohammad yusuf V/s. Md. Waheed (A. I. R.1936 Pat.)147. 19. In Para 20 of the report, reuben, J. enunciated the law thus : ". . . . . . the Cts. could and should give, is an equitable relief entirely within the discretion of the Ct. within the provisions of o. VII, R.7, Civil RC. 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 Ct. is in a position to give the pltf. the relief asked for on the basis of his title, there is no reason why the Ct. should drive the pltf. to file another suit in order to get this relief, provided that the pltf. has done nothing to disqualify him from receiving equitable relief, e. g. by coming to Ct. with a false story. In this view of the matter, the question of C. F. is no bar to the grant of such relief. Nor will the question of oecuniary jurisdiction arise, unless an appellate Ct. is able to come to a finding within the meaning of S.11, suits valuation Act, that there has been -prejudice caused. It is in the light of these remarks that the case must be examined to see whether the pltf. before us can be given relief on title. " 20. The Addl. is able to come to a finding within the meaning of S.11, suits valuation Act, that there has been -prejudice caused. It is in the light of these remarks that the case must be examined to see whether the pltf. before us can be given relief on title. " 20. The Addl. District Subordinate judge in the instant case ought to have decided the appeal on merits in the light of the decision in Mohammad mians case (A. I. R.1951 Pat.550) instead of remanding the case for payment of court-fee and taking further evidence without there being any prayer in this regard by any of the parties. So far the question of court-fee is concerned, the plaintiff and the defendants could be called up to pay the requisite court-fee. 21. The learned Single Judge of this Court in Sheo Shankar Prasad (1985 P. L. J. R.358) had not considered the authoritative pronouncement of this Court in A. I. R.1951 Pat.550 which was based on earlier decisions of this Court. 22. In view of the discussions above, this appeal must succeed. The order of the Addl. District Judge, Siwan is set aside. The appeal filed by the defendants shall be decided by the learned Addl. District Judge on merits in the light of observations in the judgment. Costs will be abide by the final result of the suit. Appeal Allowed.