C.M. Lodha, J.
1. This is a defendant-tenant's second appeal arising out of a suit for arrears of rent and ejectment in respect of a Nohra in the town of Churu, The case set out in the plaint was that the Nohra in question was rented out by Kishanlal, father of the plaintiffs, to the appellant on 24-7-1952 on an yearly rent of Rs. 4/- by a rent note Ex. 1 executed by the defendant in favour of Kishanlal. The plaintiffs terminated the defendant's tenancy by a notice dated 10-10-1967 marked Ex. 4 and thereafter filed the present suit on 5th February, 1968, claiming ejectment on grounds of default in payment of rent, personal necessity and denial of the plaintiffs' title by the defendant. A decree for Rs. 12/- being three years' rent was also claimed.
2. The defendant denied relationship of landlord and tenant between him and the plaintiffs. He also denied the execution of the rent-note and asserted his own title to the Nohra. Admissibility of the rent-note was also challenged on the ground that it was not properly stamped and had not been registered.
3. After recording the evidence produced by the parties the learned Munsif, Churu, decreed the plaintiffs' suit as prayed. Appeal filed by the defendant was also dismissed by the Additional District Judge, Churu. Hence the defendant has come in second appeal to this Court.
4. Learned counsel for the appellant has urged, in the first instance, that relationship of landlord and tenant between the plaintiffs and the defendant is not established. In this connection he has argued that the rent-note Ex. 1 is not admissible in evidence and that no oral agreement of tenancy had been set up by the plaintiffs at any stage nor it is established that the plaintiffs had delivered possession of the Nohra to the defendant.
5. So far as the question of execution of rent-note Ex. 1 is concerned the trial court on a consideration of the evidence produced by the parties came to the conclusion that execution of the rent-note Ex. 1 by the defendant is fully proved. This finding was not challenged by the defendant in the lower appellate court.
6. As regards admissibility of the rent-note Ex. 1 it may be noted that the rent has been mentioned therein as Rs. 4/- per year. There is no duration of lease fixed in the rent-note, but there is a condition that the defendant will have to vacate the premises whenever called upon to do so by the landlord. Such a tenancy need not be in writing and registered. In this connection reference may be made to Kushal Raj v. Mst. Mooli Bai, ILR (1963) 13 Raj 980, wherein it was held that a tenancy like the present where the tenant had agreed to vacate the premises whenever the landlord should desire him to do so, is a tenancy-at-will and the mere fact that the rent-note provided for payment of rent per annum does not and cannot make any material difference. It was further observed that, recital of annual rate of rent in a lease deed did not constitute it as one reserving a yearly rent. I respectfully agree with the observations made in the case referred to above and hold that no registered lease deed was required in the present case and the rent-note Ex. 1 is admissible in evidence.
7. Learned counsel for the appellant also urged that 'Kabuliat' or a rent-note cannot be made a basis of the suit and no oral agreement accompanied by delivery of possession had been pleaded and proved by the plaintiffs. It is submitted that a Kabuliat can be used only as a corroborative piece of evidence and not as a basis of the suit. In support of this contention he has relied upon Banarsilal v. Shri Bhagwan, 1955 Raj LW 129 = (AIR 1955 Raj 167).
8. After an exhaustive examination of the case law on the point the learned Judge observed in the ruling referred to above that undue stress should not be laid on construction of pleadings in a suit like the present one when the defendant has fair notice of the case which has been put up by the plaintiff. The learned Judge goes on to observe that it cannot be denied that in cases where there is no registered lease-deed it should be mentioned in the plaint that there was an oral agreement about the lease between the landlord and the tenant followed with the delivery of possession of the property. The suit should not simply be based on an unregistered rent-note because it can be used only in corroboration of the said oral agreement but the necessity of such a formality should not be over-stressed. Further on, the learned Judge has also observed that ordinarily a rent-note is executed after an oral agreement about the lease between the parties and in accordance with this presumption the learned Judge without any specific pleadings on the point held that in that case the rent-note was simultaneously executed after an oral agreement. In this connection I would like to refer to Shiv Dulare Lal Shah v. Anant Ram, AIR 1954 All 475. It was held in that ruling that the circumstances -- that the execution of the 'Kabuliat' by the lessee, the handing over of the 'Kabuliat' in original to the lessor and the lessor thereupon putting the lessee in possession can lead only to one conclusion that there must have been an oral agreement between the lessor and the lessee agreeing to the terms on which the lessee was being put in possession of the property.
9. There is yet another aspect of the case to which I am tempted to refer. The moment it is held that a registered lease deed is not required by law and a rent-note like the one in the present case is admissible in evidence, the admission or acknowledgement made therein by the tenant that he is in occupation of the premises in the capacity of tenant is certainly a good type of evidence, and the plaintiff would be perfectly within his rights to use such an admission and acknowledgment to establish the case of tenancy between him and the defendant. I am fortified in this view by a Full Bench decision of the Lahore High Court in Mohanlal v. Ganda Singh, AIR 1943 Lah 127 wherein it was held that,--
'A rent deed (not compulsorily registrable under the Registration Act) executed by a tenant in favour of a landlord, if not registered, can be relied upon to establish the relationship existing between the parties. For it contains an admission or an acknowledgment by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of a lease and a Court is not prevented from looking into it for this purpose.'
10. In this view of the matter I am unable to accede to the learned counsel's sub-mission that the plaintiff is liable to be nonsuited merely because he has not said in so many words in the plaint that there was an oral agreement of lease between the parties accompanied by delivery of possession. I may, here, state that the cases relied upon by the learned counsel for the appellant to show that the 'Kabuliat' is inadmissible in evidence pertain to lease for more than a year, which are compulsorily registrable under Para 1 of Section 107 of the Transfer of Property Act and have, therefore, no application to the facts and circumstances of the present case. Therefore, I do not consider it necessary to discuss those cases.
11. Another contention of the learned counsel for the appellant is that there is no evidence that the appellant was put in possession of the 'Nohra' in question by Kishan-lal and that there is evidence on record that the defendant had been in possession of the same since long before the execution of the rent-note Ex. 1.
12. It appears that plaintiff Kamal Kumar son of Chiranji Lal (P. W. 2) was very young, aged about 8 years at the time of the execution of the rent-note and, therefore, is not able to depose how and in what way possession of the Nohra was delivered to the defendant. It is true that the defendant has stated that he had been in possession of the Nohra for a very long time, but at the same time he has utterly failed to establish his ownership to it. One can conceive of circumstances when actual physical delivery of possession may not take place at the time the rent-note is executed. For instance if the tenant is already in possession in some capacity it would bs an empty formality that he should be asked to vacate his possession once and then take it back in pursuance of the contract of tenancy. In AIR 1943 Lah 127 (FB) it was observed that it is not necessary that delivery of possession must be physical at the time of the agreement. Delivery of constructive possession is quite sufficient for the purpose of Section 107. In that case the tenant was a mortgagor already in occupation of the premises when he executed the rent-note in favour of the plaintiff. But this principle holds good also in cases where a person may have trespassed on the plaintiff's land and on being asked to vacate the same, he may agree to continue in possession as a tenant of the plaintiff and in ca.se he does so and executes a document in acknowledgement of his possession as a tenant, I fail to understand why it should not be considered as delivery of possession by a landlord to his tenant. So also a person may be in occupation of certain premises as a licensee and subsequently if he enters into a contract of tenancy with the owner, in such a case also, delivery of possession will be deemed to have taken place even though there is no physical delivery at the time of entering into the contract.
13. Now, in the present case there is nothing to show that the defendant had been in occupation of the Nohra in question as an owner or that he had subsequently acquired ownership. In absence of any evidence to that effect, admission made by him in the rent-note that he had taken the Nohra on rent from the plaintiffs, is the best evidence to establish relationship of landlord and tenant between him and Kishanlal (father of the plaintiffs) unless he is able to show that he made that admission under some mistake, misrepresentation, fraud, coercion or undue influence, which may go to vitiate the contract. In this view of the matter, assuming for argument's sake, that the defendant was already in possession of the Nohra, he will be deemed to have been put in the possession of the same as a tenant by Kishanlal when he executed rent-note Ex. 1 in Kishanlal's favour and admitted to remain in occupation of the premises as his tenant.
14. It was also argued by the learned counsel for the appellant that relationship of landlord and tenant is negatived by the fact that the defendant had not paid a single farthing towards rent ever since he executed the rent-note Ex. 1. This is correct that no rent is proved to have been paid. But this circumstance is not all conclusive to show that the defendant is not a tenant. It may not be out of place to point out that the rent agreed was nominal--a paltry amount of Rs. 4/- per year, and I find force in the submission made by the learned counsel for the respondents that the plaintiffs were living out of Churu for earning their livelihood and, therefore, they did not care to file a suit for recovery of arrears of rent which constituted a small sum. Apart from that, as I have already observed above, this circumstance by itself cannot negative the proof of tenancy furnished by the rent-note Ex. 1.
15. Lastly it was contended on behalf of the appellant that notice for termination of tenancy was bad, as it did not fulfil the requirements of Section 106 of the T P. Act. As already stated above, there is a specific clause in the rent-note Ex. 1 that the landlord will be entitled to evict the tenant at any time he likes. Such a tenancy would be a tenancy-at-will. It is well settled that where the agreement between the parties is to the effect that the tenancy should be determinable by either party at any time, there is clearly a contract to the contrary within the meaning of Section 106 of the T. P. Act and the provisions of that section would not apply to such tenancies. Learned counsel for the respondents submitted that even if the provisions of Section 106 are applied, the tenancy was terminated with the expiry of the end of the month of tenancy and, therefore, too the notice is valid. But in view of the conclusion to which I have come that Section 106, T. P. Act, does not apply. I do not consider it necessary to examine this argument.
16. No other point was pressed.
17. The result is that this appeal is dismissed with costs.
18. Learned counsel for the appellant prays for certifying the case to be a fit one for appeal under Section 18 (2) of the Rajasthan High Court Ordinance, 1949. The prayer is disallowed.