1. This is an appeal preferred by the original defendant being aggrieved by the decree of eviction and payment of arrears of rent passed by the 4th Additional District Judge, Aurangabad in Regular Civil Appeal No. 183 of 1986, decided on 23rd August, 1990, whereby the Additional District Judge reversed the dismissal of the suit and findings of facts recorded by the Jt. Civil Judge, Junior Division, Paithan, in Regular Civil Suit No.120 of 1982, decided on 20th February, 1986. Original plaintiff Chetandas who died pending appeal in the District Court, was represented by his legal representatives.

2. It is case of original plaintiff Chetandas that he was owner of Room No.6, House No.2078, situated at Saliwada, Tal. Paithan, Dist. Aurangabad. The defendant was in occupation of premises as tenant from 1st January, 1979. Monthly rent was Rs.50/-. The tenancy month started on first day of every month and ended on last day of that month. The defendant/appellant did not pay rent from October, 1981 to March, 1982 and therefore a notice was issued by the plaintiff on 6th March, 1982 as per Section 106 of the Transfer of Property Act and terminated tenancy of the appellant/defendant. Since the appellant did not vacate the suit premises, the suit was filed for possession and arrears of rent.

3. Present appellant appeared and filed written statement. He admitted that he was tenant, however, he denied that original plaintiff Chetandas was owner or lessor. It is stated that brother of plaintiff Chetandas by name Santumal was owner of the property. It is also stated that the notice given by Chetandas is illegal and invalid as there was no agreement of tenancy between Chetandas and the appellant and in the circumstances the suit is also dismissed.

4. The Trial Court held that there was no relationship of lessor and lessee between Chetandas and the appellant. The agreed rent was not Rs. 50/-. It is not proved that the defendant was in arrears of rent. The notice was not legal and valid and after answering all issues against the plaintiff Chetandas, the suit was dismissed. On the other hand, in the appeal, the Additional District Judge reversed the findings on all points and held that Chetandas was the lessor and the suit filed by him is tenable and the notice given by him is legal and proper. The agreed rent was Rs.50/- per month. The appellant was in arrears of rent. The learned Additional District Judge allowed the appeal and passed decree of possession and arrears of rent. It is this judgment and decree which is challenged in this Second Appeal.

5. This appeal is admitted by order dated 18.12.1990 on the following substantial question of law:-

“In the absence of pleading that lessor was Santaram and not plaintiff and when notice was given by Santaram, whether there was sufficient compliance of Section 106 of the Transfer of Property Act?”

6. The Trial Court has observed while considering issue No.1 that Chetandas did not enter into witness box. His brother Santumal @ Santaram was examined as holder of power of attorney of the plaintiff. Though Santaram has stated that he was deposing as holder of power of attorney of his brother Chetandas, actual agreement of lease was between the appellant and Santaram @ Santumal. Santaram and his witness D.W.2 Shaikh Mohammad both have stated that at the time of agreement of rent only Santumal and appellant were present; Chetandas was not present. In cross-examination Santumal has also stated that he had instructed the advocate for issuing notice. The rent was collected by Santaram. In all these circumstances the Trial Court held that there was no relationship of lessor and lessee between the appellant and original plaintiff Chetandas.

7. On the other hand the Additional District Judge has observed that Chetandas was owner of the property. Santumal was his agent and in the circumstances there was relationship of lessor and lessee between the plaintiff Chetandas and the appellant/defendant.