( 1 ) THIS is a landlords second appeal against the decision of the Civil Judge, Budaun dismissing their suit for possession of a house against the defendant. The plaintiffs Badri Prasad and Trilok chand alleged in their plaint that they were the owners of an abata in the town of Bisauli and the houses situate in it, having purchased it from the previous owners in 1950. They further state that the defendants father and uncle were the tenants of the plaintiffs predecessor in interest, having taken a lease for ten years in the year 1915 and executed a qabuliat in token of it; that after the death of the defendants father, in or about 1922, they inherited the tenancy rights and continued as tenants without interruption and paid rent at the rate of Rs. 4/- per month. The plaintiffs case is that the defendants defaulted in the payment of rent and they were compelled to terminate their tenancy by a notice under Section 106 of the Transfer of Property Act. The defendants, however, did not vacate the house in dispute; hence the suit.

( 2 ) THE defendant contested the suit and denied that he was in possession of the house under any contract of tenancy. He denied that his father and uncle had executed any qabuliat, and pleaded in the alternative that it was obtained by fraud and that it was not binding on the defendant, at any rate. He denied even the plaintiffs title as owner, and alleged that his father had constructed the house in dispute. His case was that his father and uncle were not tenants but mere licensees of the plaintiff and the license terminated on the death of the father; after this the defendant continued in possession as a trespasser and perfected his title by adverse possession after twelve years. He pleaded that the plaintiffs suit was time barred.

( 3 ) THE trial court disbelieved the version of the defendant that the house in dispute was constructed by his father and held that the plaintiffs were the owners of it. But it found that the plaintiff had failed to prove the relationship of landlord and tenant between himself and the defendant in other words, the defendant was in occupation of the house after the death of his father as a trespasser. Accordingly, it dismissed the suit as time-barred.

( 4 ) IN appeal the learned Civil Judge upheld the view of the trial court that the plaintiff was the owner of the house and that the defendants story that his father had built it was false. But he took the view that the qabuliat of 1915 did not create a lease and consequently the so-called lessee took possession of the house as a licensee. He also held that the licence was extinguished on the death of the defendants father and the defendant continued in possession on sufferance that is as a trespasser, me learned Judge rejected the evidence of the plaintiff that the defendant had paid rent to the plaintiffs even after the death of his father. Confirming the view of the trial court, he dismissed the suit as time-barred. The plaintiffs have now come to this Court in second appeal.

( 5 ) MR. Radha Krishna, learned counsel for the appellants who argued this case with tenacity and thoroughness, urged that the view of the courts below that the defendants father was not the tenant of the plaintiffs predecessor in interest is erroneous in law. Secondly, he contended that after the death of his father the defendant inherited the tenancy rights and continued in possession as a tenant. On the other hand, Mr. Sadiq Ali, learned counsel for the defendant respondent contended that the qabuliat of 1915 could not have created a lease and the view of the courts below that the defendants father took possession as a licensee was correct. I heard learned counsel at considerable length and at one stage even adjourned the hearing to enable both counsel to place before the Court the authorities in support of their respective cases.

( 6 ) THE first question is whether the relationship between the defendants father and plaintiffs pre