M. N. Shukla, J. - (1.) THIS is a defendant's second appeal arising out of a suit for ejectment and arrears of rent. The suit was dis missed by the trial court but on appeal the decree was set aside and the lower appellate court decreed the plaintiff's suit.
(2.) THE parties were at issue on a number of points and the findings recorded by the trial court were that there was no relation ship of landlord and tenant between the plaintiff and the defendants 2 to 4, that the defendants did not make any material alterations in the accommodation in tenancy, that the defendants 2 to 4 were not the tenants, and that the defendants did not commit and default in payment of rent. THEse findings were reversed by the lower appel late court and hence this appeal. The first point which was canvassed before me on behalf of the appellants was that the relationship of landlord and tenant had not been established between the plaintiff and defendants and the contrary finding of the lower appellate court was illegal. Sri Gaur mainly attacked the finding of the court below relating to the receipts on which it had relied for holding that such relationship existed bet ween the parties. This argument was based on mere technicalities and had no substance. He emphasised the fact that the alleged sig natures on the receipts had been denied on behalf of the defendants and the court had not recorded a clear finding to the effect that the signatures had been made, as alleged, by the Plaintiff. It was also stressed that the receipts on which the court had relied had not been actually exhibited by the Court below, i.e., no exhibit marked were v noted on them This again is a mere technicality. 'If the execution of the receipts has been proved by requisite evidence in law mere omission to place exhibit mark does not in any manner detract from the evidentiary value of the receipts. Plaintiff Champa Lal, exa mined himself as P.W. 1 in the case and deposed that the receipts of rent used to be issued in the names of all the four defendants but signatures of any one of them were obtained on the counter-foils of the receipts. These receipts contain the signatures of the defendants and their father. The plaintiff actually deposed that he was ac quainted with those signatures and formally proved the execution of the receipt in like fashion. He proved receipt No. 34 which was signed by Mohd. Umar (D.W. 4), son of Ramzani. This receipt is date: December 23, 1949. It is remarkable that although Mohd. Umar had been examined in the case, he has not denied his signature on the receipt. On the other hand, the signatures had been denied by Abdul Zahoor. I also find on record receipt No. 31 dated January 3, 1945 thumb marked by Abdul Aziz alias Mimma, who was one of the parties to the rent note dated December 13, 1930. This had al ready been duly proved by Champa Lal, Plaintiff. Apart from this, the court below rightly relied on the rent note (Exhibit 3) dated December 13, 1930 which was executed by Abdul Aziz alias Mimma and Ramzani. Mohd. Umar (D.W. 4) is the son of Ramzani and he had admitted the title of the plaintiff. In my opinion these receipts were sufficiently proved according to law and they established the "fact of payment of rent open after the expiry of the term of the re gistered lease. From the oral and documentary evidence on record the court below rightly came to the conclusion that the relationship of landlord and tenant had been established between the parties. It was next submitted on behalf of the appellants that ex hibit 3, being a fixed term lease, it automatically came to an end after the expiry of five years and the court below was in error in holding that thereafter the defendants were holding over. It was contended that Section 116 of the Transfer of Property Act was not attracted and there was no evidence of any overt act on the part of the lessor to prove the act of holding over. There is no force in this submission. I have already held above that the receipts evidencing payment of rent after the expiry of the period of original lease had been filed and proved. This acceptance of rent, therefore, by the lessor is positive proof of holding over as contemplated by Section 116 of the Transfer of Property Act. It may also be noted that in the grounds in the memo of appeal filed in this court no such ground was taken. The appellants did not challenge either the proof of the aforesaid receipts or any illegality caused by the omission to put an exhibit mark thereon and the point was for the first time argued at the bar in the second appeal.
(3.) I am also not satisfied that the positive finding of the lower appellate court on the defendant's failure to prove adverse posses sion suffers from any infirmity. There is no evidence in the case that the defendants at any time asserted any hostile title to the plain tiff or did any act to prove their adverse possession and it was for the first time in the reply to the notice given by the plaintiff on September 18, 1968 that they came out with the plea of adverse posses sion. In view of the plaintiff's categorical statement to the contrary and positive evidence of acceptance of payment of rent after the ex piry of the period of the fixed term lease, the theory of adverse possession must be rejected and I affirm the finding recorded by the court below which is not tainted by any illegality. As regards the denial of title of the plaintiff, again the find ing of the lower appellate court in the plaintiff's favour is well-founded. It is based of documentary as well as oral evidence and in second appeal it is not open to me to disturb the finding based on appraisal of evidence.;