1. - Heard the learned counsel for the parties.

2. The defendant-tenant has filed this second appeal against the concurrent judgments and decree of eviction passed by the two Courts below. The appellate Court while rejecting the appeal No.1/1996 of the defendant - tenant on 30.10.2007 upheld the eviction decree passed by the learned trial Court on 19.12.1995 for suit premises, namely, a shop situated in Sadar Bazar, Nimbaj, Tehsil Jaitaran, Dist. Pali.

3. The main defence set up by the defendant in the eviction suit field by the plaintiff Parasmal adoptive son of Sh. Bansi Lal was that after the death of said Banshi Lal in the year 1977, the defendant had purchased the suit property from the wife of said Banshi Lal, namely, Smt. Jatni Devi by a registered sale-deed dated 20.9.1980 and therefore, he was not a tenant of the said premises and adoptive son plaintiff Parasmal could not file the suit through his next friend Bhanwar Lal, his natural father.

4. The two Courts below held against the defendant that the adoption of the plaintiff Parasmal was proved and since on 19.7.1980, the defendant himself had executed the rent note (Ex.1) in favour of Parasmal adoptive son of Banshi Lal, he could not deny the title of the plaintiff in view of Section 116 of the Evidence Act and he was estopped from denying the title. The two Courts below further held that the issue relating to ownership was not relevant in the eviction matter and since the defendant - tenant has executed rent-note Ex.1 in favour of the plaintiff Parasmal on 19.7.1980, on account of default in payment of rent and denial of title, the courts below decreed the suit.

5. Mr. J.K. Bhaiya, the learned counsel for the appellant - defendant emphatically urged that after the death of Banshi Lal in the year 1977, Smt. Jatni Devi was the sole owner of the suit premises and therefore, sale by her in favour of the defendant by registered sale-deed on 20.9.1980 transferred the absolute title over the suit property to the defendant and the plaintiff was not entitled to maintain the suit for eviction. He also submitted that he had produced a copy of Will of said Banshi Lal along with an application under Order 41 Rule 27 C.P.C. before the learned appellate Court in which averment relating to sale of shop in question to the defendant was also made. However, the learned appellate Court rejected the said application under Order 41 Rule 27 C.P.C. Relying on the decision in the case of Ugre Gowda v. Nagegowda (dead) by LRS. and other reported in (2004) 12 SCC 48 in which it was held that adoption of a son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or by Will. The learned counsel submitted that even if the adoption of plaintiff Parasmal was accepted as proved, the sale of suit shop by Smt. Jatni Devi in favour of the defendant could not be ignored and therefore, courts below have erred in passing decree for eviction.

6. On the side opposite, Mr.R.R. Nagori, learned counsel appearing for the respondent - plaintiff emphatically submitted that though the sale-deed in question was not proved before the Court below, however, in view of rent-note (Ex.1), having been admittedly executed by the defendant on 19.7.1980 prior to alleged sale-deed dated 20.9.1980 in favour of the defendant, at the time of commencement of tenancy, the defendant was estopped from denying the title of the landlord, the plaintiff. Referring to Section 116 of the Evidence Act and several judgments to this effect, the learned counsel for the respondent - plaintiff submitted that the question relating to the title or ownership of the suit property was not relevant, but since the relationship of the landlord and tenant was established by the plaintiff under Ex.1 rent-note dated 19.7.1980, therefore, the decree was rightly granted by two Courts below and he further submitted that finding relating to relationship of landlord - tenant was a finding of fact and as a ma