The main legal point established is the requirement of proper notice under Section 106 of the Transfer of Property Act and the consideration of evidence in determining the landlord-tenant relationship.

This appeal has been filed against the judgment and decree dated 23.12.93 passed by the learned Assistant District Judge No. 2, Guwahati in Title Appeal No. 39/92. By the aforesaid judgment, the learned Judge dismissed the appeal and affirmed the judgment and decree dated 15.6.1992 passed by the Munsiff No. 1, Guwahati dismissing the Title Suit No. 9 of 1986. Hence, this appeal.

2. The following are the substantial questions of law:

i) Whether the findings of the appellate Court that the plaintiff was not the owner of the suit property was correct in law when the suit property had been mentioned in Ext. 1 which was a document executed in favour of the plaintiffs father.

ii) Whether in view of the admission made in the written statement in paragraph 18 to the effect: "That formerly, both the brothers i.e. Jairam and Arun lived together in the suit house during the life time of their father and later on in the year 1980 the father of the plaintiff purchased a plot of land at Sualkuchi and constructed his RCC house and shifted to the said house giving the suit house solely to the father of the defendant." The suit could have been dismissed.

3. The brief facts are as follows:-The plaintiff instituted Title Suit No. 9/ 1986 against the defendant for ejectment and for arrear house rent. The defendant took the suit house on rent of Rs.75/- per month from November, 1982. The defendant did not pay rent to the plaintiff and as such the plaintiff called a village meeting in May, 1984 where in arrear rent was paid to May, 1984. The defendant again defaulted in making the payment. It is further stated that the plaintiff required the suit house for the accommodation of his children who were studying in Sualkuchi college. The plaintiff served notice under Section 106 of the Transfer of Property Act and notice was duly served. Thus the tenancy was duly terminated by the end of the month of tenancy.

4. The case of the defendant is that the suit land and house originally belonged to Muktaram Medhi, who was "the grandfather of both the plaintiff and defendant. In the year 1980, the plaintiff constructed a house at Sualkuchi and shifted there giving the house to the defendant and since then the suit land and house remained in possession of the defendant's father. Defendants and his brother are residing on the eastern portion of the house and their father residing on the western portion of the house. The defendant alleged that he was never a tenant of the plaintiff in respect of the suit house and the land.

5. As many as 8 issues were framed in the suit. The learned Munsiff took up first the issue No. 7(a). It is an issue with regard to the question of tenancy of defendant. The learned Munsiff arrived at a curious finding with regard to this issue and his finding is as foliows:-

"Accordingly it is found that plaintiff and - . defendant, are of same family and the suit house of their ancestral property and so it cannot be said that the occupation of the suit house by the defendant are ^s a tenant under the plaintiff. The plaintiff failed to prove to be the absolute owner of the suit house. So, I am of the opinion to say that there was no relationship of landlord and tenant between the plaintiff and defendant. The defendant are not a tenant under the plaintiff. As such it is found that plaintiffs suit is not maintainable in the present form. Both these issues are thus answered in negative and against the plaintiff."

In arriving at this finding the learned Munsiff did not consider the admission made by the defendant in the written statement quoted above. He also did not consider the oral evidence. Thereafter the learned Munsiff took up issue No. 2. Issue No. 2 is with regard to notice. He found that the notice was duly served and that notice was valid and proper. Regarding issue No. 3 the learned Munsiff came to a finding that the suit is barred by limitation as the plaintiff had to come for recovery of possession within 12 years from the