JUDGMENT:- The present appeal by the plaintiff is directed against the judgment and decree of the 2nd Additional Civil Judge, Agra, dated 1st November, 1966.

2. The plaintiff filed a suit for ejectment, arrears of rent and mesne profits against the defendants on the allegation that defendant No. 1 was his tenant in respect of the disputed open plot while defendant No. 2 was the sub-tenant. The claim was resisted by the defendants on the allegation that the disputed plot belonged to defendant No. 2 and defendant No. 1 had been in possession with his leave and licence. It was further pleaded that he had, subsequently, surrendered his interest in favour of defendant No. 2 and that defendant No. 1 had no interest whatsoever in the toll business carried on on this piece of land.

3. The trial court accepted the plaintiff's case and decreed the suit. It definitely found that there was a relationship of landlord and tenant between the parties and that the suit was neither barred by time nor adverse possession, that the suit was not barred by estoppel and acquiescence and that the defendants had not paid rent to the plaintiff. On appeal by the defendants, the lower appellate court reversed the judgment and decree of the trial court holding that the plaintiff had failed to prove the contract of tenancy, as set up by him. The plaintiff has now come up in second appeal to this Court to Challenge the judgment and decree of the 2nd Additional Civil Judge, Agra.

4. Sri K.C. Saxena, appearing for the appellant, raised two contentions :

1. From the materials on the record, the contract of tenancy has been amply proved, but the lower appellate court has completely lost sight of the important documents and has illegally branded some of the documents to be suspicious, and,

2. In any case, even if the plaintiff has failed to prove the contract of tenancy, he was entitled to a decree for possession on the basis of title.

5. As the appeal can be disposed of on a pure question of law, it is not necessary to probe into the first point raised by Sri Saxena. I, therefore, propose to decide the appeal on the legal point raised by Sri Saxena. It is true that the plaintiff came to the Court on the allegation that there was a contract of tenancy between him and the defendants. The trial court found in favour of the plaintiff on the question of the contract of tenancy, but the lower appellate court reversed that finding and held that the plaintiff had failed to prove the contract of tenancy. All the same, the lower appellate court found the title of the plaintiff over the land in dispute. The trial court has also negatived the plea of adverse possession set up by the defendants and that finding of the trial court on the question of adverse possession has not been reversed or modified by the lower appellate court with the result that the finding of the trial court on the question of adverse possession and title will have to be accepted as confirmed by the lower appellate court.

6. Now, the question is whether the plaintiff can get a decree on the basis of title even if he has failed to prove the contract of tenancy set up by him in the plaint. This is no more res integra and there are a number of Full Bench decisions of this Court and decisions of the Supreme Court as well.

7. In Balmakund v. Dalu, (1903) ILR 25 All 498 (FB) while dealing with the above question, the Full Bench held :

"The fact that no distinct issue as to the plaintiff's title had been framed could not be construed to the prejudice of the plaintiff in as much as the issue had in fact been tried, and it could not be said that the defendant had been in any way taken by surprise."

8. The case, in hand, stands on still better footing. In this case, there was a definite pleading in the written statement denying the title of the plaintiff and the setting up of the title by the defendants themselves on the basis of adverse possession. There were definite pleadings of the parties and the definite issue on the

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