C.M. Lodha, J.
1. This is a second appeal by the defendant against whom a decree for ejectment was passed by the Munsiff, Alwar and on appeal by the defendant the same are upheld by the District Judge, Alwar.
2. The plaintiff-respondent No. 1 Firm Bhonreylai Hiralal, Kedalganj, Alwar and its partners respondent No. 2 to 6 filed the suit in the Court of Munsiff, Alwar on 10-2-62 alleging that the respondents Nos. 2 to 6 constitute a joint Hindu family and carry on business under the name and style: Firm Bhonrey lal Hiralal, which was also registered under the Indian Partnership Act. It was alleged that one Thakur Shivelal Singh, Muafidar of Thikana Burja sold a place of land measuring 370,10 'x'3' situated in the city of Alwar to the plaintiffs by a registered sale deed dated 22-7-1956 for a conit sideration of Rs. 3000/-, and that the defendant was occupying a portion of this land measuring .27' x 33' as a tenant of the vendor Shivelal Singh for which the rent settled was Rs. 2/8/- per month. It was also alleged that the defendant had paid rent to the plaintiffs upto 31-12-1960, and thereafter no rent had been paid. The plaintiffs' case was that that they wanted to construct shops on the land in question for carrying on their own business, and thus ejectment was claimed on the ground of reasonable and bonafide personal necessity of the landlords. It was also averred that the plaintiffs had terminated the defendant's tenancy by giving him a notice of ejecment dated 28-8-1961 to which the defendant had given an evasive reply dated 12-9-1961.
3. The defendant denied the plaintiffs' suit and in the written statement filed by him it was pleaded that the plaintiffs did not constitute a joint Hindu family and that their firm was unregistered under the partnership Act and consequently the firm was not cempetent to file the suit. The ownership of Shivelal Singh to the land in dispute was also denied, and so also Shivlal Singh's right to sell it to the plaintiffs It was pleaded that the plaintiffs had not acquired any valid title to the land in dispute. The defendant also denied his status as a tenant of Shivalal Singh and pleaded that he had been in possession of this land for more than 100 years and his ancestors had built a house on it at their own cost. The alleged relationship of landlord and tenant between the defendant and Shivelal Singh, the vendor of the plaintiff was denied and so also the alleged attronment by defendant in favour of the plaintiffs by payment of rent. It was pleaded that the defendant being illiterate had once paid a sun of Rs. 7.50 paisa to the plaintiffs under the pressure of the plaintiffs who were rich and influential people in the city. The service of notice of ejectment was also denied. In the alternative it was* pleaded that the land in question was muafi land which could not have been sold on account of the enforcement of the and Reforms Land Resumption of Jagirs Act, 1952, The defendant also took the plea that Shivelal Singh had executed the sale deed in favour of Hitalal alone, and, therefore the plaintiffs had no locus standi to file the suit. In the last resort the defendant pleaded that in any case if all other points are decided against the defendant, the defendant was a permanent tenant in respect of the land in question and consequently no suit for ejectment could be brought against him. It may be stated here that for the purposes of ejectment the plaintifis had also alleged that the defendant Nathuram had sublet the land in question to defendant No. 2 Gopiram. But it appears that this ground was not pressed.
4. After recording the evidence produced by the parties the learned Munsiff by her judgment dated 21-1-1966 held that the plaintiffs Nos. 2 to 6 constitute a joint Hindu family and carry on business under the name and style Firm Bhonrey Lal Hiralal, Kedalganj, Aiwar. It was also found that Shivelal Singh was competent to sell the land in question and had validly sold the same to the plaintiffs by a registered sale deed Ex 10, dated 26-7-1956 She also found that the defendant-appellant was a tenant in the suit premises and that the tenancy was not a permanent one. As regards the alleged reasonable and bonafide personal necessity of the plaintiffs for the premises in question the finding of the learned Munsiff was also in favour of the plaintiffs. She held that the plaintiffs had lawfully terminated the defendant's tenancy by a valid notice of ejectment. She found that the defendant had failed to prove that the land in question was a muafi. In the result she decreed the plaintiff's suit for eviction.
5. Aggrieved by the judgment and decree of the learned Munsiff the defendant filed appeal which was dismissed by the learned District Judge, Alwer on 31-10-1967 Consequntly the defendant has come in second appeal to this Court.
6. Before I proceed to consider the argument advanced by the learned counsel for the parties I may summarise the findings of the learned District Judge also. An application was moved on behalf of the Urban Improvement Trust before the learned District Judge stating that the land in question was a muafi land which had been resumed and had vested in the Urban Improvement Trust and consequently it was prayed that the Urban Improvement Trust may be ordered to be impleaded as a party to this appeal. This application was rejected by the learned District Judge. As regards the merits of the case his findings are as below:
(1) That the plaintiffs Nos. 2 to 6 are members of joint Hindu family.
(2) That the sale deed in respect of the property in question was executed by Thakur Shivelal Singh in favour of the purchaser Hiralal, who had purchased the same as a partner of the firm Bhonreylal Hiralal, and, therefore, the property will be deemed to be the property of the firm.
(3) That the defandant had paid Rs. 7.50 paisa as rent to the plaintiffs after they had purchased the property from Shivelal Singh and had thereby attorned to the plaintiffs, and consequently the defendant cannot challenge the plaintiff's position as his landlords.
(4) That the land in question was not muafi land and cannot be said to have been resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952.
(5) That the plaintiffs had succeeded in proving their bonafide and reasonable personal necessity for the land in question.
(6) That the defendant cannot be allowed to attack the validity of the notice of ejectment and lastly.
(7) That the defendant had failed to establish a permanent tenancy in respect of the land in question.
7. It may be pointed out here that the defendant wanted to urge a new point before the learned District Judge that Shivelal Singh the vendor of the plaintiffs was, according to Shivelal Singh's own statement, under the management of the Court of Wards from the year 1924 to 1950 and consequently the sale of the land in question by him in 1950 was null and void under Section 37 of the Rajasthan Court of Wards Act No. 28 of 1951. But the learned District Judge held that this was not a pure question of law and could not be allowed to be raised for the first time in appeal.
8. Learned Counsel for the appellant has reiterated before me almost all the contentions which had been raised on behalf of the appellant before the learned District Judge. He has contended that Shivelal Singh the vendor of the plaintiffs was not competent to sell the land in question in favour of the plaintiffs Hiralal, firstly because the land in question was a muafi land which had been resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, and secondly that as admitted by Shivelal Singh himself he was under the management of the Court of Wards from 1924 to 1950 A.D. that is, at the time when the sale of the land in question was made by him. It is urged that by virue of Section 37 of the Rajasthan Court of Wards Act, 1951 Shivelal Singh was not competent to transfer any part of his estate including the land in question which was under the superintendence of the Court of Wards.
9. I shall first take up the question whether the land in question was a muafi grant which had been resumed and could not be sold away. In this connection learned Counsel for the appellant has placed reliance on the statement of P.W. 5 Hiralal, who has stated in cross-examination that he did not know Shivelal Singh, who was a muafidar, but that the land which has been purchased by the plaintiffs was a muafi land of Shive Lal Singh. It may be observed that the learned District Judge did not place reliance on this part of the statement of PW. 5 Hiralal on the ground that the witness has stated that he does not know Shivelal Singh and that he does not disclose the source of his knowledge as to how he considered the land in question to be muafi On the other hand he has relied on the statement of P.W. 7 Shivelal Singh and D.W. 2 Gyasi Ram, Patwari, who have stated in clear terms that the land in question is in Abadi and is neither a muafi land nor a Biswedari, and I do not see any adequate reason to disagree with the learned District Judge.
10. Coming to the question, whether Shivelal Singh was incompetent to sell the land in question on account of being under the Court of Wards, it is not disputed that this point was not taken before the trial court and was raised for the first time before the learned District Judge in appeal, A large number of authorities were cited by the learned Counsel for both the parties on the question whether the objection of the learned Counsel as to the disability of Shivelalsingh to sell the land should be entertained or not? It was argued on behalf of the appellant that the question raised by him was a pure question of law not dependent on the determination of any question of fact, and should have been allowed to be raised for the first time by the first appellate court. He relied on Subbanna v. Subbanna AIR 1965 SC 1325 and M K. Ranganathan v. Govt. of Madras AIR 1955 SC 604. On the other hand learned Counsel for the respondents submitted that the new point taken by the appellant was not a pure question of law that was a mixed question of fact and law, and that a solitary statement elicited in cross-examination from Shivelal Singh, a witness of the plaintiffs which they had no opportunity explaining cannot be utilised for the purpose of founding an objection which had not been taken in the trial ceart or put into issue In support of his contention he has placed reliance on Choteylal v. Chandra Bhan AIR 1923 AII. 176, Kehar Singh v. Dewan Singh AIR 1966 SC 1555, Siddik Mahammed Shah v. Mt. Sayan and Ors. AIR 1930 PC 57, Kanhaiyalal v. Abdul Knrim 1956 RLW 351, and Bhagat Singh v. Jaswant Singh AIR 1966 SC 1361. It is contended by him that if this point had been made a subject matter of issue he would have shown that Shivelal Singh's estate had been taken under the management of Court of Wards under the provisons which had been declared unconstitutional by this Court vide Rao Bhagwat Singh v. The State of Rajasthan 1954 RLW 411, or would have shown that the land in question was ever taken under the management of the Court of Wards or would have otherwise successfully challenged the allegation of the plaintiffs.
11. Learned Counsel for the respondents has also contended that the plaintiffs had not brought the present suit on the basis of title, but the suit has been based on the relationship of landlord and tenant and consequently the plaintiffs are entitled to succeed in case they are able to prove that the defendant was their tenant either by contract or by operation of law. He has contended that the defendant has in the present case attorned the plaintiffs by paying 3 years' rent to them and consequently the defendant is precluded from denying the title of the plaintiffs, who allowed him to occupy the land in question as their tenent.
12. After a casual consideration of the contentions raised' by the learned Counsel for the parties I have come to the conclusion that the defendant cannot be allowed to raise this new point which he had not teken up in the trial court. It would not be correct to say that the point raised by the defendant is a pure question of law I am also of view that a solitary statement of that character by P.W. 7 Shivelal Singh elicited in cross-examination by the defendant which plaintiffs hap no opportunity for explaining cannot be utilised for the purpose of founding an objection which had not previously been taken by putting into issue. It is possible that the plaintiff's might have a good explanation as to how that statement was made or as to how and in what circumstances Shivelal Singh's estate was taken under the management of the Court of Wards. In any case it appears to me that the learned District Judge was right in holding that a plea of that character can not be allowed to be entertained at the appellate stage when it is not open to the other party to meet it by calling other evidence. It is well established that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward: Siddiq Mohamed Shaik v. Mt. Saran and Ors. AIR 1930 PC 57 . I, therefore, reject this contention of the learned Counsel for the appellant that Shivelalsingh had no right to sell the land in question.
13. I would now consider the other important point raised on behalf of the appellant, namely, that no relationship of landlord and tenant has been established between the plaintiffs and the defendant. This is undoubtedly the most important point in the case. The plaintiff's case in this connection is that there was an oral agreement between their predecessor in title Shivelal singh and the defendant by which the defendant was admitted as tenant on the land in question on the yearly rent of Rs. 2.50 paisa and that Shivelal Singh gave a notice to the defendant after the sale in favour of the plaintiffs informing him that he had sold away the land in question to the plaintiffs and that rent in receipt of this should be paid by the defendant from 1-1-1958 to the plaintiffs. The original notice has been placed on the record and marked Ex. 1, and it has been admitted by the defendant. It is also the plaintiff's case that after they had purchased the property the defendant paid three years' rent to them, that is, Rs. 7.50 paisa through his son Ganga Sahay for which the plaintiffs had issued a receipt signed by the plaintiff Nand Lal and Ganga Sahay. A counter foil or that receipt has been produced and marked Ex. 4. It is also alleged by the plaintiffs that they gave a notice of ejectment to the defendant dated 28-8-1961 to which they received an unsigned reply from the defendant marked Ex. 9 in which the defendant admitted his possession as a tenant but denied his liability to evict the premises.
14. The first point to be determined in this connection is whether there was an agreement of oral tenancy between Shivelal Singh and the defendant and this is the subject matter of issue No. 3. P. W. 1 Nandlal plaintiff has stated that Shivelal Singh had rented out the land in dispute to Nathuram on rent of Rs. 2.50 paisa per year, and that Nathuram defendant used to pay rent to Shivelal Singh P. W. 7 Shivelal Singh has stated that Nathuram had been in occupation of the land in question for 200 to 250 years and that he had handed over the rent deed to Hiralal plaintiff. It must be noticed that no rent deed alleged to have been executed by the defendant in favour of Shivelaisingh has been produced by the plaintiffs, and the allegation of the plaintiffs in para No. 3 of the plaint that there was an oral agreement between Shivelal Singh and the defendant by which the defendant was admitted as a tenant on the land in question cannot be said to have been proved. It may not be out of place to mention here that even though there was a specific issue on the point, namely, issue No. 3 neither trial court nor the learned District Judge gave any specific finding on this issue. The position, therefore, boils down to this that the defendant had been in possession of the land in question for a very long time and as stated by Shivelal singh for more than 200 years, but it has not been proved by the plaintiffs that any rent had been realised from the defendant by Shivelal singh not it had been proved that there was any oral or written agreement between Shivelal Singh and the defendant by which the defendant agreed to occupy the land in question as Shivelal Singh's tenant. That the position was not clear even to Shivelal Singh, is further borne out from the language of the notice Ex. 1 given by him to the defendant after the, sale of the land in favour of the plaintiffs. It is mentioned therein that the defendant was in possession of the land in question as a tenant by virtue or a note (the date of which was left blank, while typing the notice but a cross was put in the blank, while signing the notice). This clearly shows that there was no oral agreement of tenancy between the defendant & Shivelal Singh who was merely groping in the dark. The fact, however, remains that the defendant received this notice and did not give any reply to Shivelal Singh, nor repudiated the averments there in. It further transpires from para No. 9 of the plaint that after having purchased the property the plaintiffs gave a notice of ejectment to the defendant dated 28-3-61. This notice was given by Shri Kailash Nath, Advocate on behalf of the plaintiffs. The receipt of this notice is admitted by the defendant in para No. 9 of the written statement, and, it was further stated that the notice was wrong and improper. The defendant's case is that the reply to the notice Ex. 9 alleged to have been given, be him is in fact a manipulation and this reply, was not sent by him. Learned counsel for the appellant is correct in his connection that the reply Ex. 9 in a typed document from start to the finish and has not been signed by any body, and there is no proof worth the name to show that this reply had been sent by or on behalf of the defendant. The plaintiff Nandram (P.W 1) has no doubt stated that the plaintiffs received Ex. 9 from the defend-; ant by post in reply to the notice given bv them The defendant Nathuram has no doubt stated as D.W. 1 that Ex. 9 was not sent by him or on his. behalf.
15. It is, however, contended by the learned Counsel for the respondent in para No. 9 of the plaint the plaintiffs had clearly alleged that the defendant gave a notice dated 12-9-61 in reply to the plaintiffs' notice in which the defendant gave an evasive reply and that the reply in original and the acknowledgement receipt of the notice given by the plaintiffs were being filed, and that the defendant replied to this para in para No. 9 of his written statement that para No. 9 of the plaint was correct to this extent that Shri Kailash Nath Vakil had given a notice which was wrong and improper. His contention is that under Order VIII, Rule 5 C.P.C. every allegation of fact in the plaint, if denied specifically or by necessary implication or stated to be; hot admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability. It is significant that though in certain other paras of the written statemement the allegations made in the plaint have been denied, but in para No. 9 of the written statement there is no such denial at all, nor it. can be said that the allegations of fact made in para No, 9 of the plaint have been denied by the defendant by necessary implication. In my opinion in absence of an express and specific denial of the plaintiffs' allegations in the present circumstances, the allegation of the plaintiffs that the defendant had sent a reply to the plaintiffs' notice must be taken to be admitted. The defendant Nathuram no doubt in his statement has tried to repair this omission by stating that he had not given any reply to the plaintiffs' notice but he has not given any explanation for his omission to reply to this part of the plaintiffs' case, in his written statement. Learned Counsel for the respondent submitted that the implied admission contained in the defendant's written statement in this respect must be taken to be conclusive. However, without going into this question I am of opinion that on the stage of pleadings as well as after the consideration of the evidence of P.W. 1 Nandlal and D.W. 1 Nathuram 1 have come to the conclusion that plaintiffs' case that Ex. 9 was a reply received by the plaintiffs from the defendant in reply to the former's notice must be accepted.
16. The other relevant point which has a bearing on the question of relationship of landlord and tenant between the plaintiffs and the defendant is the factum of payment of Rs. 7.50 paisa. That the amount has been paid was not denied in the written statemement nor has been disputed before me at the bar even though D.W. 1 Nathuram (defendant) had denied this payment as a witness. But since it his not been challenged before me it must be said that Nathuram has made a false statement when he said that no such payment was made to the plaintiffs. In para No. 4 of the plaint it was alleged by the plaintiffs that the defendant paid rent upto 31-12-1960 at the rate of Rs. 2.50 paisa per year. In reply to this para the defendant has stated in para No. 4 of the written statement that he made this payment under the influence of the plaintiffs who are rich and influential people in the city. Nothing has been said as to what for this payment of Rs. 7.50 paisa was made by him. The plaintiffs have proved this payment as rent by the counter foil of the receipt Ex. 14, which is proved by P.W. 1 Nand Lal, who had signed it. Nandlal has proved the signature of of Ganga Sahay on Ex. 9. It is further mentioned in this receipt dated 26-5-1961, that it was in respect of arrears of rent for three years from 1-1-1958 to 31-12-1960 It is a printed receipt issued by the firm Bhonrylal Hiralal, Kedalganj, Alwar. As already stated above the defendant has denied this payment altogether a stand diametrically opposed to the pleading in the written statement The lower court has accepted the plaintiffs' evidence in this connection, and I fail to see how the finding of the learned District Judge in this connection is vitiated. I, therefore, hold that the defendant had paid rent for the land in question to the plaintiffs by Ex. 14 for three from years 1-1-1958 to 31-12-1960.
17. In ultimate analysis the facts as they emerge from the record are that the defendant had been in occupation of the land in question prior to its sale by Shive Lal Singh in favour of the plaintiffs and according to Shivlal Singh the defendant was occupying the same in the position of a tenant though the date of tenancy as well as the terms of the tenancy are not proved. But after the sale Shivelal Singh gave a notice to the defendant to pay the rent in respect of the land in question hence forth to the purchaser plaintiffs (Ex. P. l) but the defendant failed to reply or controvert this notice. It is further proved that after the purchase of the land in question the plaintiffs' gave a notice of ejectment to the defendant to which the defendant gave a reply Ex. 9 and did not repudiate the claim of the plaintiffs that they were the landlords and the defendant was a tenant On the other hand the defendant asserted that he had been paying rent regularly year to year and was not liable to be ejected. Then again it is established that on 26-6-1961 the defendant paid rent to the plaintiffs for three years from 1-1-1958 to 31-12-1960 Rs. 7-50 paisa through his son Ganga Sahay (vide Ex. 14).
18. From the aforesaid facts the learned District Judge concluded that the relationship of landlord and tenant between the plaintiffs and the defendant as established, and after a critical examination of the facts and circumstances of the case I do not see any reason to take a different view.
19. Learned counsel for the appellant, however, contended that mere payment of rent does not necessarily establish relationship of landlord 'and tenant. In support of his contention he has relied upon Sheodhari Rai v. Suraj Prasad Singh AIR 1954 SC 758, and Purnima Debi v. Khagendra Narayan AIR 1962 SC 567, On the other hand learned Counsel for the respondent has urged that there was attornment by the defendant in favour of the plaintiffs by payment of rent and by acknowledging the plaintiffs as his landlords. In support of his contention learned Counsel for the respondent has relied upon Krishna Prasad v. Baraboni Coal Concern AIR 1937 PC 251, Parameshwarlal v. Dalu Ram AIR 1967Assam 188, Kai Khushroo v. Bai Jerbai AIR 1949 PC 124, Gurcharan Singh v. Delhi Improvement Trust AIR 1955 Punj. 34.
20. The two Supreme Court cases relied upon by the learned learned Counsel for the appellant are distinguishable and have no application to the facts and circumstances of the present case. In Sheodhari Rai v. Suraj Prasad Singh AIR 1954 SC 758 it appears that the High Court from whose judgment an appeal had been filed in the Supreme Court had found that the fact of payment of rent by the defendants first party to the superior landlords as evidenced by the rent receipts produced by the defendants first party from their own custody was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants seconds party without there being any relationship of landlord and tenant between the two sets of defendants. The High Court also found that as Kisans of the defendants second party, they were cultivating the lands and paying rents payable in respect of them to the proprietors by virtue of an arrangement for permissible occupation, and that any relationship of landlord and tenant was never contemplated between them. In these circumstances it was held by their Lordships of the Supreme Court that the fact of payment of by the defendants first party to the superior landlords was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants second party without there being any relationship of landlords and tenant between the two sets of defendants. It will be noticed that in the present case the defendant has not pleaded any permissible occupation, nor has given any explanation for payment of Rs. 7,50 paisa by him as rent to the landlords.
21. In H. S. Rikhy v. New Delhi Municipality AIR 1962 SC 554 the appellants plea was that they were the tenants of the New Delhi Municipal Committee, and in support of their plea they relied upon certain receipts of rent granted by the Municipal Committee. Their Lordships, however, found that no contract of lease had been executed by the Municipal Committee as as required by Section 47 of the Delhi and Ajmer Rent Control Act, No. 38 or 1952, which was a mandarory provision and the absence of such a contract cannot be cured by the mere receipt of rent from the occupiers of the shops owned by the Municipality. It was in these circumstances that their Lordships were pleased to observe that the use of the term 'rent' cannot preclude the landlord from pleading that there is no relationship of landlord and tenant. In it was further held that absence of a written contract as provided by Section 47(3) of the Municipal Act cannot be cured by the mere receipt of rent from the occupiers and consequently it was held ' that no relationship of landlord and tenant came into existence.
22. In Gurcharan Singh v. Delhi Improvement Trust AIR 1955 Punj. 34 it was held that,
Rent is a usual, though not an essential incident of the relationship of landlord and tenants and payment of rent by the occupier to the owner of premises raises a presumption that the relationship of landlord and tenant has come into existence. The presumption however is a rebuttable one and may be rebutted by showing that the acts and conduct of the parties are inconsistent with the existence.
23. Kai Khushroo v. Bai Jorbai AIR 1949 PC 124 B.K. Mukherjea J., who delivered the majority judgment stated the law as following:
What Section 116, T.P. Act contemplates is that on one side there should be an offer of taking a renewed or fresh devise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to his continuance of possession by the landlord otherwise. The assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and be clear recognition of tenancy right asserted by the person who pays it.
It was further held that when the landlord accepted the rent from the sublessee, the agreement between the parties was complete by acceptance of rent as such and it did not lie in the mouth of the landlord to say that he would receive the money but not as rent.
24. In Parmeshwarlal v. Dalu Ram AIR 1967Assam 188 where a tenant in possession had by payment of rent attorned to the successor in interest of the deceased landlyrd he was held to be estopped under Section 116 of the Evidence Act from denoing the title of successor landlord. In this connection the learned Judges observed as follows:
The decision of the Judicial Committee in Krishna Prasad Lal v. Baraboni Coal Concern, Ltd., AIR 1937 PC 251: 64 India App 311 (D), supports the line of reasoning that in case of such an attornment, estoppel will operate against the tenant. In that ease, their Lordships held that Section 116, Evidence Act, does not deal or profess to deal with the kinds of estoppel or occasions of estoppel which may arise between landlord and tenant.
It deals with only one kind of estoppel. The section postulates that there is a continuing tenancy, that it had its beginning at a given date from a given landlord, and it provides that neither a tentant nor any one claiming through a tenant, shall be heard to deny that particular landlord had at that date a title to the property. The words 'at the beginning of tenancy' in Section 116, Evidence Act, do not give a ground for the contention that when person already in possession of land, becomes tenant to another, there is no estoppel against his denying his landlord's title.
25. In the present case as already held above the defendant had paid Rs. 7.50. paisa as rent for three years to the plaintiffs vide counter foil of the receipt Ex. 14. It is further clear from Ex. 9, the reply alleged to have been given by the defendant, which I have held in the earlier part of my judgment to have been proved that the defendant acknowledged the plaintiffs as landlords and stated that he had been paying rent year to year. This reply was received through post purporting to come from the defendant and in view of the fact that it has been impliedly admitted by the defendant in the written statement it would not be unfair to presume that it was a reply despatched on behalf of the defendant even through it is only typed and not signed by any-body. In this connection I may refer to the observations of Sulaiman J , in Habib Bux v. Samuel Fitz & Co. Ltd., AIR 1926'AII. 161 (2).
When a letter is only posted there may be a presumption that it reaches the addressee in the ordinary course of business. But the mere fact that a letter had been received through post raises no presumption that it was despatched by the person on whose behalf it purports to have been written. If however it were proved that a previous letter was sent by the decree-holder's firm through post to the judgment debtor and a reply thereto was duly received by the firm through post purporting to come from judgment debtor the court may under certain circumstances presume that it was a reply despatched on behalf of the judgment-debtor though not necessarily in his own handwriting.
26. In view of the aforesaid discussion I have come to the conclusion that the relationship of landlord and tenant is established between the plaintiffs and defendant.
27. The next argument advanced by the learned Counsel for the appellant is that the tenancy had not been terminated by a valid notice. The defendant has admitted the receipt of notice by the plaintiffs, dated 28.8.1961 both in the written statement as well as in his statement as D.W. 1. All that has been pleaded in this connection in para No. 9 of the written statement, is that the notice was wrong and improper. The original notice has not been produced by the defendant. It was urged on behalf of the appellant that the burden of proving that the notice was served upon the defendant and the notice was in accordance with law, and, therefore, resulted in determination of the tenancy is upon the plaintiffs, and in as much as there is no evidence on other side, the plaintifis's suit for ejectment should fall on that ground alone. It may be observed that the particulars as to how the notice was not considered to be in accordance with law were not given by the defendant. Besides withholding the original notice the defendant did not lead any evidence to show that the notice was defective In my opinion, it was the duty of the defendant to produce the original notice and also to have shown how the notice was defective and not in accordance with law? He cannot lie by and then be allowed to take the advantage of the abstract doctrine of onus of proof. In this connection I am supported by the view taken in Motiram v. Parmanand 1960 RLW 251.
28. In this connection learned Counsel for the appellant has also submitted that identity of person issuing the notice and the parson bringing the suit has not been established and when there is no such identity the provisions regarding notice under Section 106 of the Transfer of Property Act must be deemed to have been not complied with. In this connection he has placed reliance on S.N. Datt v. Union of India AIR 1961 SC 1449. But in view of the fact that the defendant has not produced the original notice even though he was admittedly in possession of the same and that he has not pleaded the details regarding the insuffiency or illegality of the notice. It is not possible to accept the connection of the learned Counsel that the person giving the notice was different from the person bringing the suit or that the notice did not otherwise comply with the requirements of Section 116. of the Transfer of Property Act, I, therefore, find myself in agreement with lower appellate court that the defendant cannot defeat the plaintiff's claim on the ground of validity of notice of ejectment
29. The next contention raised by the learned Counsel for the appellant was that the plaintiffs had no locus standi ,to file the suit. It is urged that the sale of the land in question had taken place in favour of Hiralal alone in his personal capacity and the suit has been brought by firm Bhonreylal Hiralal and its partners among whom Hiralal is no doubt one. But he has not sued in his personal capacity. In this connection it may be relevant to point out that the learned Counsel has not challenged the finding of the first appellate court that the plaintiffs Nos. 2 to 6 are brothers and they constitute a a join Hindu family. It may be useful to point out at this stage that the sale deed Ex. 10 has been executed in favour of Hiralal as 'Malik firm' Bhonrey Lal Hiralal, Kedalgarj, Alwar. The learned District Judge found that the property was purchased by Hiralal as a partner of the firm Bhonrylal Hiralal it will be deemed to be the property of the firm as the partners of the firm are brothers. P.W. 1 Nandlal, plaintiff No. 6, has stated that no partition has taken place between the plaintiffs and that he had purchased the property in question from Shivelal Singh. It may be pointed out that even though the sale deed is not in his favour he has stated that the property was purchased by him. The counter foil of the receipt of rent Ex. 14 is in the name of firm Bhonrey Lal Hirelal. Taking all the circumstances into consideration I have come to the conclusion that there is no substance in this contention of the learned Counsel for the appellant. My finding is that the property was purchased by all the partners, and the relationship of landlord and tenant also came into existence between the plaintiffs on the one hand and the defendant on the other. In this view of the matter the plaintiffs must be held to be competent to file the present auit.
30. Lastly the learned Counsel for the appellant urged that the defendant was a permanent tenant and could not be evicted in as much as he had been in possession of the premises in question for more than 100 years, and had raised construction over it. In this connection he placed reliance on Pramatha Nath v. Rajoh Bejoy AIR 1927 Cal. 234, Promatha Nath Das v. Champa Dasi AIR 1929 Cal. 473, and Dinabandhu v. Gopinath AIR 1948 Pat. 12. However I find it difficult to accept this contention either. In the first place the defendant has taken this plea as a last resort which is highly inconsistent with all other pleas taken by him. It is not his case that there was any agreement of permanent tenency between him and Shivelal Singh. On the other hand he has denied the factum of tenancy altogether. In Nainapillai v. T.A.R.A Ramanathan AIR 1924 PC 65, it was held by their Lordships that when a tenant sets up a defence that he has a right of permanent tenancy in the land, the onus of proving that he has such a right is upon the tenant and proof of long occupation at a fixed rent does not raise the presumption of permanant tenancy. The mere fact that the defendant has raised some construction on the land in question also cannot give rise to presumption of permanent tenancy. It may be observed that the constructions in the present, case are not pucca. Thus in the circumstances of the case I am unable to hold that the defendant had ever acquired the status of a permanent tenant. It may by observed that the finding of the learned District Judge that the plaintiffs had proved their reasonable and bonafide personal necessity for the land in question was not a sailed by the learned Counsel of the appellant. In fact no other point except those which I have referred to above was argued on behalf of the appellant. Learned counsel for the respondents raised an additional point almost towards the conclusion of his reply that the plaintiff Bhonrey Lal died during the pendency of the appeal in the first appellate court, but his legal representatives were not impleaded in the memo of appeal before this Court, and, there-fore the appeal was not properly constituted. But at the same time he conceded that if the suit is considered on behalf of the firm, and its partners as contended by him' there will be no difficulty on account of not impleading the legal representatives of Bhonrey Lal. In my opinion, the suit has been instituted on behalf of the firm and its partners, who are also members of a joint Hindu family, and therefore, this objection raised by the learned Counsel for the respondent does not deserve any consideration.
31. In the result I do not see any force in this appeal, and hereby diamiss it with costs.