LODHA, J.—This is typical case where the landlord and the tenant have tried to out-run each other, the former to get possession over the rented premises by means fair or foul, and the latter trying take an undue advantage of the law in his favour and it appears that ultimately the landlord had the upper hand.

2. The facts giving rise to this litigation are these: Avni Kumar respondent (defendant No. 2) at one time owned a number of shops in Jaipur, one of which had been rented out to the appellant (defendant No. 1) Mannalal at a monthly rent of Rs. 4/-. This has been described as shop No. 1, in the course of this litigation. Some time in August 1950 Avni Kumar was able to persuade Mannalal to vacate shop No. 1 on the assurance that he would give another equally suitable shop to him, which was under construction and meanwhile he may shift to shop No. 18 for which he would not charge any rent. Mannalal accepted this proposal and vacated shop No. 1 and shifted to shop No. 18 in the same month. As time passed, it became apparent that it was only a device on the part of Avni Kumar to throw Mannalal out of saddle and Avni Kumar did not give the shop, which he had promised to Mannalal, who also did not take the matter to the Court presumably because he was satisfied with occupying shop No. 18 without payment of any rent. Avni Kumar then filed a suit for arrears of rent for shop No. 18 against Mannalal some time in 1956 at the rate of Rs. 4/- per month. The suit was resisted by Mannalal on the ground that no rent was agreed nor was any payable in respect of the shop No. 18. This plea of Mannalal prevailed with the courts and Avni Kumars suit for arrears of rent was finally dismissed on 13-4-1961 by this Court. Avni Kumar then hit upon another plan and he sold shop No. 18 to the present respondent plaintiff Radheyshyam by a registered sale deed dated 3-9-63. After having purchased the shop in question plaintiff Radheyshyam served a notice on Manna Lal and thereafter filed the present suit for possession of the shop in question along with mesne profits for 25 months at the rate of Rs. 4/- per month amounting to Rs. 100/-and also future mesne profits at the rate of Rs. 4/- per month.

3. The suit was resisted by the defendant-appellant on a number of grounds. He denied the sale in favour of Radhey Shyam and further pleaded that at any rate he was neither a licencee nor a tenant in respect of the shop in question. On the other hand, he set up his ownership to the shop by adverse possession.

4. After recording the evidence produced by the parties the learned Additional Civil Judge, Jaipur City by his judgment dated 29.10.1971 decreed the plaintiffs suit for possession of the shop in dispute and also granted a decree for Rs. 100/- as compe-nsation for its use and occupation against the defendant. He further directed that the plaintiff shall be entitled to recover mesne profits at the rate of Rs. 4/- per month from 7-10-1965 upto the date of delivery of possession of the shop to the plaintiff.

5. Aggrieved by the judgment and decree of the trial court the defendant Mannalal filed appeal but the same has been dismissed by learned District Judge, Jaipur City, Jaipur. Consequently, the defendant Mannalal has come in second appeal.

6. Learned counsel for the appellant has urged that by virtue of sec. 40 of the Transfer of property Act the appellant is entitled to enforce the contract regarding delivery of another suitable shop to him against the purchaser Radheyshyam to the same extent as against the vendor Avni Kumar. He has further referred to sec. 48 of the Transfer of Property Act dealing with priority of rights created by transfer. In my opinion none of these sections can be of any help to the appellant. The appellant has denied his status as licencee as well as a tenant with respect to the shop in question, and has pleaded that he has become owner of the shop by adverse possession. It may be pointed out that the plea of adverse possession is who

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