- (1.) THIS is defendant' appeal arising out of a suit for the eject ment of the defendant from the house in dis pute and for possession over the same and for a sum of Rs. 180/- as damages for use and occupation. The plaintiff's case was that he was the owner of the house and had let out the premises to the defendant on a monthly rent of Rs. 5/-. Plaintiff served on him a notice to quit on 25-10-1959. The defendant instead of vacating the premises denied the plaintiff's title and claimed title in himself. The plaintiff therefore filed the present suit. The defence was that the house had been given to the defendant twenty-eight years back by Palakdhari Singh the original owner of the house from whom the plaintiff claimed to have purchased it on 20-7-1949. He also claimed to have acquired title under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act on the ground that he was holding the house and had spent considerable amount in re-con structing the same.
(2.) THE plaintiff could not produce the original sale deed and the trial Court did not admit the secondary evidence of the lame produced in the form -of a certified copy and accordingly held that the plaintiff had failed to prove his title. The suit was also held to be barred by limitation. On appeal filed by the plaintiff the learned Ad ditional Civil Judge held that the loss of the original sale deed had been sufficiently proved and the certified copy was admissi ble in evidence. On the basis of the sale deed he held that the plaintiff was the owner of the house. The appellate Court, how ever, negatived the contention of the plain tiff that the house was let out to the defen dant as alleged. But on the finding that the defendant had failed to prove title or pos session for more than 12 years prior to the date of the suit, held that he was not entitl ed to resist the plaintiffs suit The lower ap pellate court has disbelieved the defendant's case that he had taken the house from Palak dhari about 28 years back. It also disbeliev ed the defendant's case that he had re-con structed the house. The appellate court with regard to damages held that the plaintiff was entitled to get compensation at the rate of Rs. 21- per month and not at the rate of Rs. 51- as claimed by him. On these findings the appellate court allowed the appeal and decreed the plaintiff's suit for ejectment of the defendant and for recovery of Rs. 71/75. Aggrieved by the decree the defen dant has come up in Second Appeal. Learn ed counsel for the appellant contended that the suit was based on forfeiture of lease and as notice requiring the defendant to vacate under Section 111 (g) of the Transfer of Pro perty Act had not been given, the suit was liable to be dismissed. The contention has no force. A reading of the plaint shows that the suit was based not on the forfeiture of lease but on the ground that the house was occupied by the defendant as a trespasser. Plaintiff had alleged that the defendant was the tenant and the tenancy had been termi nated by a notice under Section 106 of the Transfer of Property Act, but as in reply to the notice the defendant had denied the plaintiff's title, he filed the suit on the basis of title and not on the basis of the contract of tenancy. In paragraph 9 of the plaint the plaintiff valued the suit according to the mar ket value of the house and paid ad valorem court fees as is payable on a plaint in a suit based on title by the owner of property against a trespasser. He did not claim relief in the suit, on the basis of his right under Section 108 (q) of the Transfer of Property Act. Section 111 (g) only says that a lease is terminable by forfeiture. Sub-section (h) of Section 108 makes a lease terminable on a notice to quit A right to possession on termination of tenancy comes by virtue of Section 108 (q) of the Transfer of Property Act If a plaintiff seeks to enforce that right, it would be a suit between a landlord and a tenant and the plaintiff will have to esta blish the jural relationship of landlord and tenant But it is open to the plaintiff to give up his right under Section 108 (q) of the Transfer of Property Act and accepting, for purposes of the suit, the tenant's denial of the contract of tenancy, to claim the ejectment of the defendant on the ground that he is a trespasser. In such a case, it is not incum bent on the plaintiff to prove the relationship of landlord and tenant and he can succeed simply by proving his title, provided the de fendant fails to prove any right to hold the property. The suit not being based on the right to re-enter by reason of forfeiture, can not be said to be bad because notice requir ed by Section 111 (g) of the Transfer of Pro perty Act was not given.
(3.) LEARNED counsel then contended that the plaintiff had not proved his title to the property and that the court was in error in holding that the defendant had not ac quired title under Section 9 of the U. P. Za mindari Abolition and Land Reforms Act Here too, the learned counsel is not correct The lower appellate court has considered the oral and documentary evidence produced in the case and believing the plaintiff's evidence and the admission of the defendant in the documentary evidence, recorded a finding that the plaintiff had come into possession in July 1949 and the defendant had come in pos session only in 1956. This finding is based on an appreciation of evidence and nothing has been shown as to how it is vitiated in law. On this finding it would be the plaintiff and not the defendant who will get rights in the pro perty under Section 9 of the U. P. Zamin dari Abolition and Land Reforms Act.;