Modi, J.—The plaintiffs who are appellants before me filed a suit for ejectment and arrears of rent in respect of a house situated in Mohalla Nadi in the town of Pali. The plaintiffs are Punches of the Kasara community and brought the suit in a representative capacity. Defendants Nos. 1 to 4 are the descendants of one Rehman who is alleged to have taken the suit house on lease under a rent-note dated Kartik Vadi 13, St. 1961 from certain Punches of the Kasara community, viz., Ramvilas, Poonamchand, Nathulal and Khajulal, who according to the plaintiffs are dead. According to the rent-note, the rent settled was Rs, 5/- per year and it was also stipulated therein that the land-lord would not be free to get the house vacated before a period of five years from the date of the tenancy. The plaintiffs case is that Rehman paid various suras of money by way of rent up to St. 1979 but has not paid any rent since that date. Rehman died about the year St. 1997. Defendants denied the tenancy and also denied having paid any rent whatsoever and stated that the rent-note was a false and fictitious document. They, however, set up their own title to the house in question and claimed in the alternative that if it be held that the relationship of land-lord and tenant was proved, they be awarded a sum of Rs. 1033/- which they had spent by way of improvements to the house. The defendants finally pleaded that the plaintiffs suit was barred by limitation.

2. The trial court decreed the plaintiffs suit for ejectment and for a sum of Rs. 25- as arrears of rent for a period of five years. It disallowed the defendants claim for improvements as there was no satisfactory evidence to prove it. Defendants-respondents went in appeal from the trial courts decree to the court of Sub Judge, Sojat. The lower appellate court set aside the judgment and decree of the court below and came to the conclusion that the relationship of land-lord and tenant between the parties had not been established as the execution of rent-note Ex. P-1 by the defendants ancestor Rehman had not been satisfactorily proved. That court also held that the identity of the house referred to in Ex. P-1 had not been proved as being the house in suit. On the point of limitation, the lower court held that the suit was barred by limitation under Art. 139 of the Limitation Act as the tenancy had terminated in St. 1966. From the aforesaid decree, this second appeal has been filed before this Court.

3. Learned counsel for the plaintiffs-appellants has strenuously urged before me that the finding of the lower appellate court on the question of tenancy should not be mated as final in this second appeal inasmuch as that court completely ignored the provisions of sec. 93 of the Evidence Act. His argument was that the rent-note Ex. P-1 in this case was executed more than 3D years ago, and that even if the oral evidence produced on behalf of his clients was not sufficient to discharge the burden of proof, that lay upon them, to prove the tenancy, the presumption under sec. 93 of the Evidence Act dispensed with such proof, and the lower appellate court was in error in not having relied on the presumption which should have been raised in their favour under that section. It may be pointed out at once that the plaintiffs did not seek to raise any presumption under sec. 90 of the Evidence Act in either of the lower courts. A definite issue as to the execution of the rent-note Ex. P-1 was raised and the burden of proof thereof was placed upon and accepted by the plaintiffs. This burden they have failed to discharge as held by the lower appellate court and that finding being a finding of fact, is binding upon me in second appeal. Besides, whether a presumption under sec.93 of the Evidence Act should or should not have been raised, was a matter for the discretion of the courts below. It is quite clear upon the plain language of sec. 90 of the Evidence Act that it is not obligatory on a court to raise any presumption

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