Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and decree dated 15-9-1998 passed by the Sub-Judge, IInd, Danapur in Title Eviction Suit No. 2 of 1990 whereby the suit of the plaintiff-appellant has been dismissed against the contesting defendant-respondent. 2. The plaintiff-appellant brought the suit originally far eviction of the defendant from the suit premises which has been described in Schedule-II of the plaint and also for realisation of arrears of rent from the defendant. Plaintiffs case in brief is that he had purchased the Schedule I property of the plaint by three sale-deeds in the year 1968 and afterwards from Tuntun Choudhary and Dhorha Choudhary measuring total area of 21 decimal in Plot No. 213 under Khata No. 66 of village Adampur and he set up a Saw Mill on a part of the suit land. But, as the plaintiff had fallen ill the Saw Mill was closed and in the year 1982 the defendant approached the plaintiff and revealed his desire to take the suit premises on monthly rent. The suit premises along with the Saw mill thereof had been given on rental to the defendant on a monthly rental of Rs. 700.00 . The suit premises as described in Schedule II of the plaint consisted of three plots. The specification and boundary thereof had been given in Schedule II itself. A Kirayanama was executed by the plaintiff on 18-11-1982 and according to the terms and conditions of the Kirayanama the defendant started paying rent to the plaintiff and possessed the Schedule II properties as the monthly tenant on payment of rent. Sada rent receipts were granted by the plaintiff to the defendant. It has further been stated that in the month of August, 1988 on mutual consent of the parties the rent was enhanced from Rs. 1,100.00 to Rs. 1,500.00 per month and the defendant paid the enhanced rent also till, November, 1988. But, from December, 1988 the defendant deliberately stopped payment. The plain-tiff in presence of witnesses demanded rent of the suit premises but the defendant avoided to pay rent. Then, plaintiff sent a notice under certificate of posting on 4-4-1989 although the defendant received the said notice neither he paid rent along with arrears nor vacated the premises. On subsequent date also, the defendant on demand made by the plaintiff failed to vacate the premises and payment of arrear of rent. Then, plaintiff sent a notice under certificate of posting on 4-4-1989 although the defendant received the said notice neither he paid rent along with arrears nor vacated the premises. On subsequent date also, the defendant on demand made by the plaintiff failed to vacate the premises and payment of arrear of rent. Then the present suit was filed on 14-5-1990 for eviction of the defendant from the suit premises along with arrear of rent together with default-cause for eviction it Was further stated by the plaintiff that he wanted to evict on the ground of personal necessity as on retirement he wants to run the Saw Mill himself. On amendment of the plaint, the plaintiff further alleged in the plaint that the Sale-deed dated 8-5-90 executed by Bhagwan Choudhary in favour of Defendant Shankar Mistri is forged, fabricated, showy and without consideration and that Bhagwan Choudhary the vendor of the defendant was never in-possession of the 5 decimal of land which he transferred to the defendant through the sale-deed dated 8-5-90. He also averred in the plaint that Bhagwan Choudhary is not the son of Mewa Choudhary and as such, the defendant did not acquire any right title and possession over five decimal of land in the plot in question. It may be mentioned here that the total area of land in plot No. 213 is 28 decimals and the plaintiff has purchased from two co-sharers 21 decimals of lands and according to the defendant, he purchased five decimals of lands from one Bhagwan Choudhary and another area has also been purchased by another person. 3. Before filing of written statement in the suit, the defendant filed the petition that he had already vacated the suit premises but the same had been denied from the side of the plaintiff and an Advocate Commissioner was appointed who submitted a report stating that he visited the locality and surveyed the suit premises and found that the tenanted premises had already been vacated by the defendant and he was only possession, his purchased plot. But, objection had been filed for and on behalf of the plaintiff that the whole of the suit premises had never been vacated by the defendant. Written statement was filed long after that on 6-12-90. Amendments were made on three occasions. But, objection had been filed for and on behalf of the plaintiff that the whole of the suit premises had never been vacated by the defendant. Written statement was filed long after that on 6-12-90. Amendments were made on three occasions. In the written statement as is appearing from the records of the Court below on 8-3-94, 2-12-94 and 10-7-94 and after amendment of the plaint made on behalf of the plaintiff Additional written statement was filed on 15-5-1996. 4. The case of the defendant as per written statement is that the suit is not maintainable in its present form as there is no cause of action for the suit, as the defendant had already vacated the suit premises, that the suit is barred by principle of estoppel, waiver and acquiescence and also by the law of limitation. That the suit has not been properly valued and no sufficient Court fee has been paid. That the suit is barred under the principle of Specific Relief Act. As per the contention of the defendant the defendant further raised the plea that the plaintiff is not the real owner of the suit land as he has purchased only 21 decimal of lands out of total 28% decimal of lands of the plot in question. It has been averred that one Sunder Choudhary, son of Chantai Choudhary and Mewa Choudhary, son of Chedi Choudhary, were the original owners having half and half shares over the plot of land. Sunder Choudhary had a son namely, Tuntun Choudhary while Mewa Choudhary had two sons, namely, Dhorha Choudhary and Bhagwan Choudhary and Nawalatia Devi was the wife of Dhorha Choudhary. There was a partition deed registered on 4-9-74 but mistakenly plot No. 213 was left out from the said deed of partition. According to the defendant, Tuntun Choudhary and Dhorha Choudhary had no interest over the suit property and Bhagwan Choudhary remained in possession of 7 decimal of land over the suit property on the northern part of plot No. 213 and that defendant had purchased the five decimal of lands from the share of Bhagwan Choudhary. It was contended that the Tuntun Choudhary had 14 decimal interest over the plot while Dhorha Choudhary and Bhagwan Choudhary came to own and possess seven decimals each. It was contended that the Tuntun Choudhary had 14 decimal interest over the plot while Dhorha Choudhary and Bhagwan Choudhary came to own and possess seven decimals each. According to him, Dhorha Choudhary had no saleable interest exceeding seven decimal of land but the plaintiff had purchased more than his share and hence the plaintiff could not get perfected his title over the suit properties. The sale-deed dated 4-11-1971 i.e. the last purchase deed of the plaintiff as executed by wife and son of Dhorha Choudhary did not accrue any interest in favour of the plaintiff. At the amended portion of the written statement, it was further alleged that the suit property had not been properly described and boundary is given were not proper. According to him, in the year 1982 the plaintiff with the false plea that he was owner of suit premises but out the suit property to the defendant and the defendant had also on believing the declaration of the plaintiff took the suit premises on rental for ten years and an advance of Rs. 25,000.00 was given to the plaintiff in presence of the witnesses on condition that out of the total rent of Rs. 700.00 Rs. 500.00 would be paid monthly and the rest of Rs. 200.00 shall be adjusted towards the advance. The Kirayanama executed on 18-11-1982 has also been admitted in the written statement. The defendant also submitted that in the first week of May 1990, the plaintiff demanded payment of rent for the month of April 1990 and that the defendant wanted to pay the same. The plaintiff wanted enhancement of the rent from Rs. 700.00 to Rs. 1,500.00 which the defendant had denied and, as such, the dispute arose. It has again been contended that with a view to evict the defendant from his rightful purchase of a portion of the plot in question the present eviction suit has been filed in the garb of depriving the defendant from his rightful ownership. 700.00 to Rs. 1,500.00 which the defendant had denied and, as such, the dispute arose. It has again been contended that with a view to evict the defendant from his rightful purchase of a portion of the plot in question the present eviction suit has been filed in the garb of depriving the defendant from his rightful ownership. According to the defendant, the electric connection in the Saw Mill was disconnected by the Electricity Board in collusion with the plaintiff on 25-4-1990 and as there was no electric connection in the Saw Mill the defendant vacated the suit premises on 20-5-1990 after disconnection of electricity on 25-4-90 and defendant shifted to the portion of plot No, 213 which he had purchased on 8-5-90 and built a small house thereon. It was further stated that on 7-2-90, the plaintiff removed tiles of the roof of the suit premises and it became impossible for the defendant to keep the tenanted premises and hence the vacated the suit premises wherein the plaintiff had already constructed a new building by demolishing the old construction. 5. On the basis of the pleadings of the parties following issues were framed in the suit: (I) Is the suit as framed maintainable ? (II) As the plaintiff has got valid cause of action for the suit? (III) Is the suit barred by principle of estoppel, waiver and acquiescence? (IV) Is the suit barred by law of limitation? (V) Is the Court fee paid sufficient ? (VI) Is the suit barred by Sec. 34 of the Specific Relief Act ? (VII) Is there any relationship of landlord and tenant between the parties ? (VIII) Is the sale-deed dated 8-5-90 executed by Bhagwan Choudhary in favour of defendant Shankar Mistri forged, fabricated and without consideration? (IX) Is the plaintiff entitled to a decree as prayed for ? (X) To what other relief or reliefs the plaintiff is entitled ? 6. For and on behalf of the plaintiff as many as nine witnesses had been examined including the plaintiff himself, P.W. 1 Rajendra Prasad Singh, P.W. 2 Jitendra Sharma, P.W. 3, Biteshwar Prasad, P.W. 5, Sita Ram Singh, P.W. 6 Uma Nath Prasad and P.W. 9 Shyam Bihar Pandit are formal witnesses. P.W. 4 Panchu Singh, P.W. 7 Ram Naresh Singh and P.W. 8 Ram Briksh Singh the plaintiff himself are the material, witnesses in the suit. 7. P.W. 4 Panchu Singh, P.W. 7 Ram Naresh Singh and P.W. 8 Ram Briksh Singh the plaintiff himself are the material, witnesses in the suit. 7. On the other hand, the defendant has examined in all 16 witnesses including the defendant himself, out of whom D.W. 1.4, 5, 6, 7, 8 and 13 are material witnesses. D.W. 13 is the defendant himself while the other witnesses are only formal witnesses. Various documents had been filed and exhibited by both the parties which shall be referred as and when necessary in this appellate Judgment. After consideration of the evidence both oral and documentary, the learned Court below decided all the issues in favour of the plaintiff except the issue No. 8 which had been decided in favour of the defendant. Although it was held that relationship of landlord and tenant between the parties were there but the learned Court below denied to give relief of eviction of the defendant on the ground that the defendant had already vacated the suit premises just after filing of the suit. Against such dismissal the present appeal has been preferred. The main ground of attack of the impugned judgment are the following : (1) when the relationship of landlord and tenant existed and when the plaintiff had denied the full vacating of the suit premises from the side of the defendant then the learned Court below committed error of law in dismissing the suit regarding eviction of the defendant from the suit premises. (2) That the learned Court below unnecessarily entered into the title of the parties when the main relief claimed is regarding eviction of the defendant from the suit premises. (3) Although it had been held that the defendants purchase deed is a genuine one then also the learned Court below should not have allowed the defendants to encroach upon the tenanted premises ownership of which lay with the plaintiff by virtue of the three sale-deeds. 8. Learned Counsel appearing for and on behalf of the respondent had supported the impugned judgment by referring to the materials on record and it was further alleged that the main point which ought to have been considered by the Court below regarding the validity of the tenancy within the frame-work of B.B.C. Act had not been dealt with. 8. Learned Counsel appearing for and on behalf of the respondent had supported the impugned judgment by referring to the materials on record and it was further alleged that the main point which ought to have been considered by the Court below regarding the validity of the tenancy within the frame-work of B.B.C. Act had not been dealt with. It is the submission of the learned Counsel for the respondent that if the business of the Saw mill over the lands under Schedule II had been given on rental to the defendant then the same does not come within the purview of tenancy as contemplated under the B.B.C. Act. It is also the contention of the learned Counsel for the respondent that when just after filing of the suit the defendant stated that he had vacated the premises and the advocate Commissioner appointed. So also find the premises under the occupation of the plaintiff and not of the defendant, then there remained no scope to grant decree of eviction in favour of the plaintiff and in that way the impugned judgment is correct and proper on the face of it. At the very first instance, it is to be seen as to whether there was any relationship of landlord and tenant between the plaintiff and the defendant. It appears from the very petition filed by the defendant soon after filing of the suit that the tenancy in respect of Schedule-II properties had been admitted by the defendant and in subsequent written statement also that position had not been challenged rather at the fag end by making amendments in the written statement, the defendant made an attempt to challenge specific description about the Schedule-II property which were admittedly given on rental to the defendant by the plaintiff. The Schedule-II property as per the plaint consist of three plots as already mentioned above and all the three plots have been specifically described by giving boundary etc. The petition dated 3-11-92 filed by the defendant makes specific admission on the part of the defendant regarding tenancy over the suit premises. The Schedule-II property as per the plaint consist of three plots as already mentioned above and all the three plots have been specifically described by giving boundary etc. The petition dated 3-11-92 filed by the defendant makes specific admission on the part of the defendant regarding tenancy over the suit premises. It was stated in that petition that as the plaintiff had disconnected the electric line of the Saw Mill of the suit premises on 25-4-90 and also removed the thatch of the Saw Mill on 7-2-90, the defendant had to close business of the Saw Mill and therefore, vacated the suit premises (emphasis supplied by me) on 30-4-90 and that since then, the defendant has got f no interest with the suit premises and hence the plaintiffs possession is there over the suit properties which could be verified by any agency. Thus, from such petition the relationship of landlord and tenant in respect of the suit premises as contained in Schedule-II had been specifically admitted by the defendant and that he had vacated the suit premises and the same came up in possession of the plaintiff. On the basis of that petition, an Advocate Commissioner was appointed who after verifying in the locality submitted a report which had been marked as Ext. D and it was stated in the report that the tenanted premises had been taken of possession by the plaintiff and that in a portion of the suit plot defendant is still in possession meaning thereby that the defendant is in possession of his purchased lands. But, vehement objection was raised against the Commissioners report from the side of the plaintiff to the effect that the suit premises had not been vacated fully by the defendant but that objection was never heard nor the Commissioners report was being accepted by the Court below and that the suit still continued. It appears that the learned Court below kept the matter open to be decided during the course of trial. It appears that the learned Court below kept the matter open to be decided during the course of trial. In my considered opinion, when the tenancy was admitted and the description of the suit premises had never been denied at that stage then the learned Court below ought to have considered Com-missioners report at that time and the objection filed from the side of the plaintiff and the suit might have been concluded at that stage itself, but that was not done and taking advantage of that position several other matters had come up during the course of trial. There was amendment of the plaint for a negative declaration regarding defendants title over his purchased property & defendant denying the title of the plaintiff, etc. In an eviction suit when the tenancy is admitted, the defendant is estoppel from questioning the title of the plaintiff. A negative declaration was Sought for from the side of the plaintiff, afterwards in the eviction suit itself regarding the title of the defendant over his purchase land of five decimal with further prayer that by such purchase the defendant cannot encroach upon the tenanted premises by right of his ownership over the suit property when the title over the suit property although challenged but was admitted of the tenancy of the defendant over the same by which he had lost the right of challenge his title, when he took the plea that the tenanted premises had already been vacated by him. In the evidence also, the defendant has specifically stated that his purchased property had no connection with the suit premises which were the tenanted premises of the defendant and, as such, by so called purchase of the defendant even if he has got a valid title, he cannot encroach upon the tenanted premises. But it appears that the learned Court below committed error of law in dismissing the plaintiffs suit as a whole. In a suit for eviction, when the tenancy is admitted and defendant takes the plea that he has vacated the premises and the plaintiff objects that the whole of the premises has not been vacated then in that way when the tenancy is admitted a decree ought to have been passed in favour of the plaintiff for eviction of the defendant from the whole of the tenanted premises. In that way definitely the judgment is bad in the eye of law and voluminous evidence is not required to be discussed as adduced by the parties in the suit. Regarding the amended para or relief claimed from the side of the plaintiff, it appears that the learned Court below has come to the proper finding. Practically, the plaintiff had no scope to come for such negative declaration when he is neither the vendor nor relating to the vendor of the defendant. In that way he had no locus standi to come up for such sort of negative declaration but perhaps the further relief portion as claimed was necessary as the defendant was trying to keep a portion of the tenanted premises under his possession by his so-called purchase from Bhagwan Choudhary. The genealogy as stressed and admitted by the parties, it could be found that the defendant has rightly purchased from a rightful owner and, as such, the sale-deed by virtue of which the defendant had entered into the suit plot cannot be declared to be void and forged one. But, when the defendant has admitted in clear words that his purchase land has got no connection with the tenanted premises and when tenanted premises had been admitted from the side of the defendant then the plaintiff is entitled to get recovery of possession if any portion of the tenanted premises had been retained by the defendant. 9. In that view of the matter without going into further details regarding title and others the plaintiffs suit with respect to eviction is hereby decreed with costs, but the further relief claimed regarding declaration that the defendants purchase deed is forged and fabricated one is held to be rightly dismissed by the learned Court below. On perusal of the Commissioners report, it appears that the proper survey was not made in respect of the suit plot nor by proper survey Schedule-II land and properties had not been related in the locality for proper survey. In that view of the matter although the suit for eviction in respect of Schedule-II properties is hereby decreed but it is made clear that while making delivery of possession in respect of the Schedule-II properties proper survey would be made in presence of both the parties by the Executing Court. In that view of the matter although the suit for eviction in respect of Schedule-II properties is hereby decreed but it is made clear that while making delivery of possession in respect of the Schedule-II properties proper survey would be made in presence of both the parties by the Executing Court. In the nature and circumstances as admittedly a portion of the Schedule-II property had already been taken possession of by the plaintiff and while making survey the purchase land of the plaintiff and that of the defendant may also be taken account of during the course of survey. 10. In the result, the First Appeal is hereby partly allowed by granting decree of eviction in favour of the plaintiff against the defendant with costs and also further allowing the relief to the extent that by defendants purchase from Bhagwan Choudhary, he is debarred from encroachment into the tenanted premises as per Schedule-II of the plaint. It has been urged by the learned Counsel for the appellant regarding arrears of rent But, no issue was framed by the Court below nor there was any petition under Sec. 15 of the. BBC Act before the Court below but the same should also be considered by the appellate Court. In my view, there is no scope to enter into the rental matter as it appears that already there was vacating of the premises soon after the filing of the suit and there is also lack of evidence as to claim of the plaintiff regarding arrears of rent, as nothing could be proved that the rent has not been paid to him when it was the specific case of the defendant that he has paid the rent. 11. Moreover, when some portion of the tenanted premises had already been taken possession of from the side of the plaintiff then even if taking it for granted that defendant is retaining a portion of the tenanted premises then also for that portion there is 110 scope to assess rent by this Court as rent cannot be a divisible one unless the parties agree to it. In that way, no relief can be granted in respect of the rent during the pendency of the suit or the appeal. Hence, such prayer being made for and on behalf of the appellants Counsel is hereby rejected. 12. In that way, no relief can be granted in respect of the rent during the pendency of the suit or the appeal. Hence, such prayer being made for and on behalf of the appellants Counsel is hereby rejected. 12. In the result, the First Appeal is partly allowed and the suit of the plaintiff is partly decreed with proportionate costs.