Reuben, J.

1. This appeal by the deft in a suit for ejectment arises in the following circumstances.

2. The suit relating to a house in Nabinagar Bazar was instituted by the pltf. as a suit for the ejectment of a tenant on the termination of his tenancy by a notice to quit. The case of the pltf. as stated in the plaint, is that he had a room with a verandah in Nabinagar Bazar; the building collapsed in the earthquake of January 1934, & the deft. who wanted a house for establishing a shoe shop, agreed to reconstruct the building at an estimated cost of Bs. 200 & to remain in the building as a tenant at an annual rental of Rs. 40, the cost of the building to be set off against the rental payable for the first five yeara. The pltf. alleged that the deft. reconstructed the building in accordance with the agreement & the cost of the reconstruction was completely satisfied by setting off against it the rent up to 31-12.1939. Thereafter, the deft. agreed to pay a rent of Rs. 42 per annum but, in fact, made no payment whatever. In addition to the prayer for ejectment, the pltf. asked for arrears of rent up to the date of the expiry of the notice to quit & damages thereafter.

3. The deft. in his written statement, denied the relationship of landlord & tenant & set up a title in himself. He pleaded that the property in question belonged to one Mathura Saran, a member of the same family as the pltf. that Mt. Champa Kuer, widow of Mathura Saran, said the property to one Lachhmi Prasad Upadhyay by a registered sale deed dated 4-9-1931, in the farzi name of Hakim Missir, a servant of Lachhmi Prasad Upadhyay: & that this deft. purchased it from Lachhmi Prasad Upadhyay by a registered sale deed dated 1-3-1936. He denied the allegation in the plaint about the agreement to rebuilt the house & to hold it at a rent of Bs. 40, & also the allegation about the subsequent agreement to pay rent at Rs. 42.

4. The parties went to trial on the following issues :

"1. Has the pltf. any cause of aetion or right to sue ?

2. Is the suit as framed maintainable ?

3. Is the Ct.-f. paid sufficient ?

4. Is the suit barred by the law of limitation?

5. Is the pltf. entitled to claim rent & damages for the room & osara and. also recovery of possession of the same as mentioned in the plaint ?

6. Has the pltf. got any right & title to the land over which the room & osara stand ?

7. Did the deft. agree to set off Rs. 200 being the cost of rebuilding the room & osara after the earthquake against their rent ?

8. Is the kebala dated 1-3 36 propounded by the deft. valid, genuine & for consideration ?

9. To what relief, if any, is the pltf. entitled ?"

5. In his judgment, however, the Munsif of Muzaffarpur considered only two issues, observing:

"He (the deft.) has taken several other pleas in the written statement, & several issues were originally framed. But the decision of the suit rests on the following two issues only, 1. Is there relationship of landlord & tenant between the parties ? If so, is the pltf. entitled to realise arrears of rent & damages ? 2. Was the notice to quit served on the deft duly ? In the Munsifs order-sheet, there is nothing to show that the issues were amended by him before evidence was adduced by the parties, & the indications are that the issues as stated in his judgment were framed by him either at the time of writing the judgment or during the course of the trial.

6. On the first issue, as framed by him, the Munsif found the evidence adduced by the pltf. insufficient to establish the relationship of landlord & tenant. Hence, he dismissed the suit without coming to any finding on the second issue.

7. The pltf. appealed against this decision. This appeal (Title Appeal No. 118 of 1943) was disposed of by the Subordinate Judge, first Ct.Muzaffarpur, on 9-2-1944. He agreed with the Munsif that the evidence of the pltf. was insufficient to establish the relationship of landlord & tenant. In view of the decision in Ramdahin Lohar V/s. Ramdhan