Judgment P.K.Deb, J. 1. This appeal has been preferred by the above-named defendant-respondent-appellant against the judgment and decree dated 4-12-1997 passed by the Second Additional District Judge, Aurangabad, in Eviction Appeal No. 2 of 1990 (3 of 1993) reversing the judgment and decree dated 19-7-1990 passed by the Second Additional Munsif, Aurangabad, in Eviction Suit No. 2 of 1986. 2. The respondent No. 1 as a sole plaintiff filed Eviction Suit No. 2 of 1986 against the appellant as defendant No. 2 and respondent No. 2 as defendant No. 1 for vacating the premises in suit and for delivery of possession to the plaintiff. The plaintiffs case, in short, is that he being the karta of the family gave the suit house to defendant No. 1 (Respondent No. 1) consisting of three rooms and a varandah thatched with tiles as described in Schedule-I of the plaint at a rental of Rs. 60.00 . according to the English calendar month. As per the plaintiffs case, the aforesaid tenancy was commenced from 1-7-1985 and kirayanama was also executed on 28-6-1985 and thus, the relationship of landlord and tenant was there between the plaintiff and defendant No. 1. It has been pleaded that defendant No. 1 had taken the premises for accommodation of his son and nephew who were residing there for their study at B.I.S. College Aurangabad. The relationship was cordial as defendant No. 1 was paying regular rent till November, 1985. But after that, he did not pay rent since December 1985. It was also pleaded that defendant No. 1 left the suit house by sub-letting the same to defendant No. 2 without the permission and consent of the plaintiff and hence, the suit has been filed for eviction of defendant Nos. 1 and 2 from the suit premises. It was further contended that defendant No. 2 Lal Yadav was also inimical to the plaintiff and defendant No. 1 maliciously and motivatedly sub-let the suit house to defendant No. 2. It was also mentioned in the plaint that possession of defendant No. 2 in the suit house is nothing but that of a trespassers and as such the plaintiff has also claimed damaged at the rate of Rs. 5.00 per day. 3. It was also mentioned in the plaint that possession of defendant No. 2 in the suit house is nothing but that of a trespassers and as such the plaintiff has also claimed damaged at the rate of Rs. 5.00 per day. 3. Defendant No. 1 who is now respondent No. 2 in this appeal had filed a written statement supporting to the version of the plaintiff except with deviation to the effect that defendant No. 2 was given possession of sub-letting with the permission and consent of the plaintiff. It was also contended by defendant No. 1 as he had already vacated the suit premises he is not liable to pay rent as claimed from the side of the plaintiff. 4. Defendant No. 2 i.e. appellant in his appeal filed a separate written statement and took all pleas such as, non-maintainability of the suit, the suit is barred under the principles of Sec. 34 of the Specific Relief Act, that, the suit has been filed with suppression of facts and in the garb of declaration of title of the plaintiff. It was also contended that the suit is not maintainable for non-joinder of the parties. There is total denial of the plaintiff being karta of the family and as such other co-sharers, such as, Brahmadeo Yadav, Sheonandan Yadav, Surajdeo Yadav, Shatrughan Yadav and Yogi Yadav are the necessary parties to the suit. It was the contention of the defendant No. 2-appellant that the suit house stands on 4 decimals of land in plot No. 2047 appertaining to Khata No. 273 of village Shahpur and the total area of the plot No. 2047 is 42 decimals and out of this 21 decimals is in possession of Baiju Khemka, son of Hari Prasad Khemka by virtue of purchase, Baldeo Yadav father of the plaintiff and Sheonandan Yadav who is son of Brahmadeo Yadav and the rest 21 decimals is in possession of this defendant. According to him, 21 decimals of land is being utilised by defendant No. 2 by construction of the suit house on 4 decimals and the rest 17 decimals are being possessed by growing paddy, etc. The other 21 decimals of lands of Baiju Khemka was partitioned by metes and bounds. As per the defendants case geneology runs as follows. Hardawal Gope maternal grand father of the defendants father was owner of 11.10 acres of land in Khata Nos. The other 21 decimals of lands of Baiju Khemka was partitioned by metes and bounds. As per the defendants case geneology runs as follows. Hardawal Gope maternal grand father of the defendants father was owner of 11.10 acres of land in Khata Nos. 272/273, The said land was gifted to the father of the defendant No. 2 by Nana on 14-6-1921 by registered gift-deed. Sukhari Gope father of this defendant sold half of his gifted land measuring 5.55 acres to Budhan Gope and Mangar Gope and Bifan Gope by sale-deed dated 16-5-1923. According to the defendant No. 2, the plaintiff and his co-sharers Brahmadeo Gope, Sheonandan Gope are the purchasers under different sale-deeds from Manager, Budhan and Bifan out of the purchased land of 5.55 acres. The rest 5.55 acres remained in possession of Shukhari Gope the father of defendant No. 2. It is his further contention that by a farzi sale-deed dated 7-1-1937 Shukhari Gope father of defendant No. 2 sold in the name of his Mama Budhan Gope, but those lands remained in possession of his father and after death of his father defendant No. 2 inherited and came in possession over the whole of 5.55 acres land of Khata Nos. 272/273 including the land of disputed house. According to him, when the dispute arose between the parties then a suit was field by the defendant No. 2 being Title Suit No. 3 of 1981 (72 of 1982) in the Court of Sub-Judge, Aurangabad, where this defendants claim was for declaration of title and confirmation of possession in which the plaintiff was the defendant and the said suit was dismissed on 8-6-1985 and against the dismissal the defendant No. 2 has preferred First Appeal No. 486 of 1985 before this High Court which is still pending. According to the defendant No. 2, the present suit has been filed in collusion with defendant No. 1 when the suit filed by defendant No. 2 was dismissed but still he remained in possession and the plaintiff and his co-sharers could not be able to get possession of the suit property. It has further been pleaded by defendant No. 2 that his same was mutated in the Municipal register of Aurangabad Municipality over the disputed house bearing holding No, 246 Ward No. 7, after contest being made by the plaintiff and this defendant pays municipal taxes and gets tax receipts. It has further been pleaded by defendant No. 2 that his same was mutated in the Municipal register of Aurangabad Municipality over the disputed house bearing holding No, 246 Ward No. 7, after contest being made by the plaintiff and this defendant pays municipal taxes and gets tax receipts. It has also been pleaded that the disputed house and lands were recorded in the Municipal Survey of Aurangabad Municipality in the name of defendant No. 2 after contest by the plaintiff in case No. 1/1986. It has been stated that the defendant No. 1 is practically a relation of the plaintiff and the so-called tenancy granted in favour of defendant No. 1 in respect of the disputed house is nothing but a trick made by the plaintiff for ousting the defendnat No. 2 from the suit house. The alleged Kirayanama dated 1-7-1985 is also a collusive one. The rent receipts alleged to be given by the plaintiff to the defendant No. 1 is said to be forged and fabricated. That the defendant No. 2 is in possession not only of the suit house but also of the lands thereunder since days of his forefathers and the plaintiff has filed the suit for getting his title confirmed through this eviction suit. On the basis of the pleadings of the parties, several issued were framed, namely, (i) Is the suit as framed is maintainable (ii) Has the plaintiff got valid cause of action for the suit ? (iii) Is there any relationship between the plaintiff and defendant No. 2 Lala Yadav as landlord and tenant? (iv) If the defendant No. 2 defaulter in payment of rent as claimed by the plaintiff (v) Is the plaintiff requires the suit premises of his personal use (vi) To what relief or reliefs the plaintiff is entitled to. 5. For and on behalf of the plaintiff as may as 11 witness have been examined including the plaintiff and several documents have also been, exhibited in the case including the judgment passed in Title Suit No, 3 of 1981 (72 of 1982) and certified copies of sale-deeds etc. etc. including the Kirayanama and rent receipts in between the plaintiff and defendant No. 1. For on behalf of the defendant six witnesses have been examined including the defendant No. 2. Defendant No. 1 has also examined himself including two other witnesses. etc. including the Kirayanama and rent receipts in between the plaintiff and defendant No. 1. For on behalf of the defendant six witnesses have been examined including the defendant No. 2. Defendant No. 1 has also examined himself including two other witnesses. After considering the materials on record and the cases of the parties, the original Court held that in the nature and circumstances of the case the tenancy in between the plaintiff and defendant No. 1 cannot be construed to be a true one and moreover, when the plaintiff himself has pleaded that the defendant No. 2 is a trespassers then he cannot get the eviction of defendant No. 2 from the suit house in the said eviction suit when it was admitted that before the filing of the suit the defendant No. 2 had vacated the suit premises and as such, the suit was held to be not maintainable in the present from and no relief can be granted in favour of the plaintiff. 6. On appeal being preferred by the plaintiff-respondent, the judgment of the original Court was reversed and, after discussing the cases of the parties and also of the materials on record holding that even if the plaintiff is not entitled for an eviction decree but when the defendant No. 2s suit has also been dismissed then the plaintiff is entitled to get the relief of possession over the suit property on the principles of equitable relief as available under Order VII, Rule 7 of the Code of Civil Procedure. He has referred to some judgments of this Court in grant of such equitable relief to the plaintiff. 7. While admitting this appeal, a Bench of this Court vide order dated 5-3-1998 formulated the following substantial questions of law as required under Section 100 of the Code of Civil Procedure. (a) Whether the judgment of the lower appellate Court is vitiated on the ground of arbitrariness, baseless assumption and presumptions and without appreciating the questions involved in the case. (b) Whether the lower appellate Court himself found the story of subletting as set. up by the plaintiff to be suspicious and contradictory a finding of relationship and tenant could be presumed and a decree for eviction could be passed. (b) Whether the lower appellate Court himself found the story of subletting as set. up by the plaintiff to be suspicious and contradictory a finding of relationship and tenant could be presumed and a decree for eviction could be passed. (c) Whether the lower appellate Court failed to appreciate the effect of a title suit and First Appeal before the High Court going between the parties since 1982 regarding the disputed property which totally negativated the story of subletting as set up by the plaintiff and supported by defendant No. 1. (d) Whether in view of pendency of F.A. No. 486/1985 between the parties before the High Court, the lower appellate Court misconstrued himself in recording the finding against the appellant even without framing any issue although he should have stayed this suit till final disposal of F.A. No. 486/85. 8. The above-mentioned questions of law formulate d by the Court pivot round the only question whether the eviction suit can be maintainable in view of the circumstances of the present case vis-a-vis that admittedly there was no relationship of landlord and tenant between the plaintiff and defendant No. 2. 9. As per admission made in the plaint itself at the time of filing of the suit the defendant No. 1 had already left the so-called tenanted premises and the defendant No. 2 i.e. the appellant was in possession of the suit premises as a tresspasser. This has been specifically mentioned in paras-7, 8 and 11 of the plaint. Taking the plaintiffs case to be a true one then also definitely at the time of filing of the suit, there was no question of any eviction decree against the defendant No. 2 as admittedly that there was no relationship of landlord and tenant between the plaintiff and defendant No. 2 on the date of filing of the suit. The original Court after considering the evidence on record came to the finding that as there was some sort of relationship between the plaintiff and defendant No. 1, the plaintiff had artistically made defendant No. 1 as a tenant in the suit premises and sought for eviction of him on the ground of subletting. The original Court after considering the evidence on record came to the finding that as there was some sort of relationship between the plaintiff and defendant No. 1, the plaintiff had artistically made defendant No. 1 as a tenant in the suit premises and sought for eviction of him on the ground of subletting. But, while drafting the plaint artistically the cat has come out of the bag when the plaintiff himself had admitted that defendant No, 2 was also residing in the suit premises as a trespassers and that defendant No. 1 had also left the suit premises before the filing of the suit. Thus, on the very foundation of the plaintiffs case eviction suit is not maintainable on the face to it and it appears that the original Court had come to the night finding but the appellate Court did not at all consider the same fact as per admission on the part of the part of the plaintiff himself in paragraphs as mentioned in the plaint itself. The appellate Court also observed in so many words that defendant No. 1 was only a set up tenant by the plaintiff for the purpose of dispossessing the defendant No. 2 from the suit premises. Thus, on the face of it in present circumstances of the case definitely the eviction suit is not maintainable against defendant No. 2. Moreover, the eviction suit was also not maintainable against defendant No. 1 when admittedly he had left the premises before. A question may arise in these circumstances as to what a landlord would do if a tenant by setting up another person in the tenanted premises leaves the suit premises. Whether the plaintiff-landlord shall have to go for a regular title suit or he can proceed for an eviction suit for a formal eviction decree against the tenant. The situation might have been different if during the pendency of the suit the tenant had left the suit premises by setting up a third party in the tenanted premises. But in the present case, the plaintiff had admitted that the defendant No. 1 i.e. the tenant had already left the premises by leaving possession in favour of a trespassers. On such admission, the eviction suit is definitely not maintainable. 10. But in the present case, the plaintiff had admitted that the defendant No. 1 i.e. the tenant had already left the premises by leaving possession in favour of a trespassers. On such admission, the eviction suit is definitely not maintainable. 10. Learned appellate Court granted decree against the defendant No. 2 in the eviction suit itself by taking recourse to the principle of equitable relief as contemplated under Order VII, Rule 7 of the Code of Civil Procedure. The question of equitable relief in the present circumstances of the case cannot be attracted here when the suit was filed the defendant No. 2 had been termed as a trespassers. It is not the case that defendant No. 2 was also a tenant but such tenancy could not be proved and he tried to set up title on his but the title of the plaintiff could be established or admitted from the side of the defendant No. 2 as a tenant. The background of the case is very much relevant in the case. The defendant No. 2 is claiming title and possession over the suit premises since before his fathers life-time and he had also claimed title and confirmation of possession in the earlier suit filed against the plaintiff. Although the suit had been dismissed against the plaintiff in that suit i.e. defendant No. 2 in the present suit but First Appeal No. 486/1985 is still pending before this Court. So the title of the plaintiff had never been admitted from the side of the defendant No. 2 at any stage rather he was setting up his title and possession over the suit premises. That possession was there with defendant No. 2 is the admitted position and the plaintiff wants delivery of possession in the present suit treating the defendant No. 2 as a trespasser. The story of tenancy between the plaintiff and defendant No. 1 and that of setting up of defendant No. 2 as a sublettee is only to get the possession of the suit premises via media without going for a regular suit. It. The story of tenancy between the plaintiff and defendant No. 1 and that of setting up of defendant No. 2 as a sublettee is only to get the possession of the suit premises via media without going for a regular suit. It. is true that defendant No. 2s suit has been dismissed and the appeal is pending before this Court but the factual aspect remains that defendant No. 2 remained in possession over the suit premises and by the dismissal of defendant No. 2s suit could not give any benefit to the plaintiff for getting possession over the suit premises and as such, he had to make out a story of letting out the suit premises to defendant No. 1 and defendant No. 1 subletting the same to defendant No. 2. This story has been disbelieved by both the Courts below and in the facts and circumstances also the story appears to be a myth on the face of it. Only because no stay order has been passed in the First Appeal does not attract equitable equitable relief under Order VII, Rule 7 of the Code of Civil Procedure in suit for eviction against a trespasser. Moreover, it appears that, although several judgments of this Court have been referred to by the appellate Court he had not asked for payment of ad valorem Court fee from the plaintiff to get his equitable relief as required under Order VII, Rule 7 of the Code of Civil Procedure. The findings of the Courts below that registration of the name of the defendant No. 2 in the Municipal Register do not confer title on him does not go to establish the title in the negative way in favour of the plaintiff. 11. I do not want to go much into the merits of the case because of the order I am going to pass in this appeal as the same may prejudice to parties if any observation is made by this Court either way in favour of either parties. It is found on going to the case of each of the parties and also on going through the circumstances and the judgments of the Courts below that the plaintiff might have a right over the suit property but the same requires to be established first then to get recovery of possession of the suit premises. It is found on going to the case of each of the parties and also on going through the circumstances and the judgments of the Courts below that the plaintiff might have a right over the suit property but the same requires to be established first then to get recovery of possession of the suit premises. Dismissal of the defendant No. 2s suit which is still continuing in First Appeal cannot confer title on the plaintiff in the negative way. 12. In that view of the matter, let the suit be remanded back to the original Court asking the plaintiff to pay ad valorem Court fee and if necessary to make amendment in the plaint and then proceed as a regular suit giving liberty to the defendant also to file additional written statement if amendment is made in the plaint. Whether the suit in the regular form should continue or be stayed in view of the First Appeal being pending before this Court is a matter to be considered by the trial Court as contemplated under Order I, Rule 10 of the Code of Civil Procedure. This cannot be construed by this Court at this stage. 13. Thus, the appeal is allowed and the judgments of both the Courts below are hereby set aside and the matter is sent back to the original Court for deciding according to law in view of the observation made above. In the circumstances of the case, although the appeal is allowed but no order as to costs.