Randhir Singh, J.
1. This is an application in revision against a decree passed by the Court of Small Causes in respect of the rent of an Ahata for the period from the 1st September, 1949 to the 31st March, 1950.
2. It appears that a suit for recovery of rent for a period prior to 1st September, 1949 had been decreed in favour of the plaintiff. The defendant Babu Lal instituted a suit for the setting aside of that decree on the ground of fraud but that suit was dismissed and an appeal was instituted against that order of the dismissal of the suit. The appeal cams up for hearing before the Civil Judge before whom a Small Cause Court case for the recovery of rent for a later period and against the judgment of which the present application for revision has been filed, was also pending.
Defendant Babu Lal contested the suit mainly on the ground that he was not a tenant of the plaintiff & that he was not liable for payment of rent. Evidence was led by the parties and the evidence produced in the suit which was brought by the defendant Babu Lal for the setting aside of the earlier decree was also allowed with the consent of parties to be examined by the Court. The Civil Judge who exercised powers of Small Cause Court then considered the evidence both oral and documentary and came to the conclusion that Babu Lal was a tenant of the plaintiff in respect of the Ahata in dispute. He decreed the Small Cause Case, and dismissed the appeal.
3. A second appeal was instituted against the appellate decree of the Civil Judge but with that I am not concerned at the present moment. An application for revision was also filed against the decree passed by the Civil Judge sitting as Judge Small Cause Court in respect of the rent, and it is against this decree that the present application for revision is directed.
4. The first point which has been urged on behalf of the applicant is that the suit as instituted was not within the cognisance of the Court of Small Causes inasmuch as the rent claimed was in respect of an Ahata and should be deemed to be rent other than house rent and as such was excepted from the cognizance of the Court of Small Causes under Article 8 of the Provincial Small Cause Courts Act. No objection was taken to the jurisdiction of the Small Cause Court in the trial Court nor was this point specifically mentioned in the application for revision.
5. The contention on behalf of the opposite-party is that the Ahata had certain constructions in the shape of Kachcha walls and there is also a tin shed in this Ahata which though constructed by the tenant belonged to the plaintiff inasmuch as the cost of construction of this tin shed was deducted from the rent payable to the landlord. If a plea of jurisdiction had been raised at the proper time in the Court below, all these questions could have been gone into and the Court could have, as a matter of fact, decided whether the Ahata with the constructions standing on it constituted a house within the meaning of Article 8 of the Provincial Small Cause Courts Act.
Reliance has been placed on behalf of the opposite party on several cases decided by this Court in which, under similar circumstances it has been held that a plea of jurisdiction not taken up in the Court of small Causes should not be allowed to be raised in revision and if a case has been tried on merits High Court would refuse to interfere in revision on this point, vide Ram Lal v. Kabul Singh. ILR 25 All 135 (A); Raghu-raj Singh v. Sham Dei : AIR1925All51 and Sukh Lal v. Nannoon Prasad, ILR 40 All 666: (AIR 1918 All 355 (2)) (C). In all these cases it has been held that the High Court should not interfere if the plea of jurisdiction had not been raised and case has been tried on merits.
As pointed out above it cannot be said with any amount of certainty whether the Ahata does or does not answer the description of a house. Under these circumstances when the question of jurisdiction was not raised and is linked with a question of fact it will not be proper for this Court to entertain the plea, in revision.
6. It has also been urged on behalf of the applicant that the learned Judge Small Cause Court should not have found in favour of the plaintiff as the evidence adduced before him. The plaintiff's case was that the defendant was a tenant while the defendant said that he was not a tenant. This was a question of fact and if the learned Small Cause Court Judge has accepted the evidence of the plaintiff and has come to the conclusion that it was Babu Lal who was the tenant of the plaintiff End that the other persons who were carrying on business were there on behalf of Babu Lal and at his instance, it will not be open to this Court to review the findings and come to a different conclusion. Findings of fact arrived at after the consideration of evidence must be accepted and cannot be challenged in revision.
7. It has been argued on behalf of the applicant that no tenancy could be created except by a written registered lease in view of the provisions of Section 107 of the Transfer of Property Act. Section 107 provides that a lease of immovable property from year to year or for many terms exceeding one year or reserving an yearly rent can be made only by a registered instrument. In the present case the lease was neither from year to year nor did it reserve an yearly rent. It was also not for a term exceeding one year. Under these circumstances Section 107 has no application and a lease from month to month made orally with delivery of possession would be a perfectly legitimate form of making a lease,
8. The last submission made on behalf of the applicant was that the defendant had in reply to a notice sent by the plaintiff informed him that he was not a lessee and this should be deemed to be a termination of the lease, if any and the plaintiff should not be allowed to maintain a suit for rent thereafter. This plea was also not taken up in the Court below. The defendant alleged that he had never been a tenant of the plaintiff,--an assertion of fact which was stoutly disputed by the plaintiff. The plaintiff has after producing evidence succeeded in proving that the defendant was a tenant.
Under these circumstances it cannot be argued that the tenancy had been terminated. Reliance has been placed on three reported cases, viz., Abdul Qayum v. Mohd. Fazal Azim, AIR 1937 Lah 121 (D); Baliramgiri Ramchandragiri v. Vasudey Moreshwar, ILR 22 Bom 348 (E) and A.C. Raman v. Kunhi Bara Haji : AIR1953Mad996 . In all these cases it has been observed that for a proper determination of tenancy the tenants should make over possession to the landlord.
In the present case the defendant not only did not make over possession of the premises but also denied having ever got into possession of the premises. It was, therefore, necessary for the Court to determine whether the defendant was a tenant of the plaintiff and the plaintiff could claim rent by proving that he was a tenant. None of the three cases cited by the learned counsel for the applicant have any bearing to the facts of the present case.
9. No other point has been pressed.
10. The application for revision is, therefore, dismissed with costs to the opposite party.