JUDGMENT :- This is a defendant tenant's appeal from an appellate decree of ejectment and recovery of arrears of rent and damages from the house in suit. The court of first instance had dismissed the plaintiff landlord's suit on the finding that no relationship of landlord and tenant existed between the parties and that the notice terminating the tenancy was invalid. The lower appellate court reversed the finding of the learned Munsif on both the material issues and decreed the plaintiff-landlord's suit.

2. On behalf of defendant-appellant two grounds have been raised in support of the appeal. The first ground was that one Mohammad Razi to whom the defendant had been paying rent was a necessary party to the suit and the suit was bad for non-impleading of the necessary party, the plaintiff having refused to make Mohammad Razi a party. This argument seems to be based on the plea raised in the written statement that Mohammad Rafi was not the landlord, and it was Mohammad Razi who was the landlord to whom the defendant had been paying the rent. A statement was made by the Plaintiff's counsel at the trial that the plaintiff was not prepared to convert the suit into a title suit and implead Mohammad Razi. An issue then was framed on the question whether relationship of landlord and tenant existed between the parties. Admittedly there was no documentary evidence in support of the case of the plaintiff that the defendant was his tenant. Oral evidence was adduced for establishing the contract of tenancy. The learned Munsif who tried the suit disbelieved the evidence and held that the plaintiff failed to establish the contract of tenancy. The lower appellate Court, however, relied upon the oral evidence of the plaintiff and held that it established the relationship of landlord and tenant between the plaintiff and defendant. This finding recorded by the lower appellate court has not been shown to be vitiated and is binding in second appeal. That being the position there remains no substance in the argument that Mohammad Razi was a necessary party in the suit.

3. The second argument was that the notice sent by the plaintiff to the defendant did not, in law, terminate the tenancy it having failed to comply with the provisions of Section 111 (h) read with Sec. 106 of the Transfer of Property Act. Learned counsel for the defendant-appellant fairly conceded that the validity of the notice was not assailed on such an argument in the courts below but contended that he was entitled to raise this ground even for the first time in second appeal as it involved a pure question of law more so a plea in the written statement having been taken that the notice was invalid and not in accordance with law. Since the legal plea had been raised in the written statement as to the invalidity of the notice, I think it will always be open to the defendant to advance all tenable legal arguments in support of that plea. It will not matter that in the courts below some other legal arguments were advanced but not the one, that is, now being urged. No prejudice is being caused to the plaintiff-respondent as I afforded sufficient opportunity to his counsel to meet the point by adjourning the hearing.

4. The notice, a copy of which is Ex. V on record, is dated 7-10-1963 and was served on the defendant on 8-10-1963. It is a combined notice demanding arrears of rent and calling upon the defendant to vacate the house. The material part of the notice translated by me and relevant for my purposes is as follows :

"Your tenancy of the aforesaid house is determined with effect from today. Therefore, within one month from the date of receipt of this notice after vacating the house deliver its actual possession to me otherwise upon the expiry of the aforesaid period I will be compelled to take action against you in a competent court of law."

The contention of the learned counsel for the appellant was that the notice was invalid inasmuch as it terminated the tenancy, that is, the rel

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