D.M. Bhandari, J. - (1.) THIS is a Civil Second Appeal on behalf of the plaintiff in a suit for ejectment and arrears of rent. The following facts may be taken to be proved for the purposes of the decision of this appeal.
(2.) THE premises No. AMC. III/344 situate in Chhoti Chowdhar Gali, Ajmer belonged to Sethani Prabhabati Kanwer and the plaintiff -appellant purchased this property from her on 6th January 1955. One Debilal Sunar was the tenant of Sethani Prabhabati Kanwer of the said premises and before the sale he had sub -let part of the premises held by him as tenant to Mohanlal, defendant at the rate of Rs. 3/8/ - per mensem. After the sale of the premises by Sethani Prabhabati Kanwer, Debilal Sunar served the defendant with a notice dated 23rd July 1956 asking him to pay rent directly to the plaintiff in future and to treat the plaintiff as his landlord for all purposes with effect from the date of the sale -deed. The plaintiff brought the suit for ejectment of the defendant alleging that the defendant had become his tenant by operation of law. He also claimed rent at Rs. 4/7/ - per mensem as according to him he had spent some money on repairing the premises about which the suit was filed. The trial Court decreed the suit for ejectment and also for arrears of rent calculated at the rate of Rs. 3/8/ - per mensem. On appeal by the defendant, this decree was reversed by the Senior Civil Judge, Ajmer, on the ground that there was no privity of contract between the parties and the plaintiff was not entitled to maintain the suit. Hence this Second appeal by the plaintiff. The only point for decision in this Second Appeal is, whether the plaintiff in the circumstances of this case is entitled to maintain the suit for ejectment and arrears of rent against the defendant. Learned counsel for the plaintiff -appellant has argued that Debilal by -virtue of Section 109 of the Transfer of Property Act became the tenant of the plaintiff and after the sale of the premises by Sethani Prabhabati Kanwer, Debilal surrendered the suit property of which the defendant was a sub -lessee to the plaintiff and so far as that property is concerned, the tenancy of Debilal determined under Section 111(f) of the Transfer of Property Act, and after the determination of the tenancy of Debilal, the plaintiff was entitled to maintain the suit. Learned counsel for the defendant -respondent has, however, argued that no case of implied surrender has been made out in this case and that there can be no surrender unless actual possession of the property in dispute was delivered by Debilal to the plaintiff and further that there can be no surrender of part of the property leased to Debilal. It is also argued that there was a registered lease deed executed by Debilal in favour of Sethani Prabhabati Kanwer and there could be no surrender by Debilal of any part of the property leased except by a registered deed.
(3.) BEFORE taking up the points of law involved in the case into consideration, it is proper to refer to the notice (Ex. A/2) produced by the defendant which has been served by Debilal on him. After reciting that the defendant was Debilal's sub -tenant of part of the premises which had been sold by Sethani Prabhabati Kanwer, the relevant part of the notice runs, as follows: - - "** My client hereby informs you to pay rent directly to the said Shri Noratmal Kandoi Nala Bazar Ajmer, retrospectively with effect from Pos Sudi 13, Section 2011 who should be treated by you as your landlord for all purposes." It is in the evidence of Shri Krishna Swaroop Goyal Advocate who served this notice on behalf of Debilal on the defendant that both Debilal and Noratmal had come to him for getting the notice drafted and he prepared a draft which was subsequently corrected by Shri Mukand Ram Garg, Advocate for the plaintiff, and then, the corrected notice was served on the defendant. This clearly shows that serving of the notice (Ex. A/2) by Debilal on the defendant was assented to by the plaintiff.;