C.M. Lodha, J.
1. This is a defendant-tenant's second appeal arising out of a suit for ejectment from a shoo situated in the city of Bikaner.
2. The plaintiff's case as set out in the plaint was that the defendant was in occupation of the suit shop on & rent of Rs. 5 per month and that he had not paid rent for 16 months since December 1968, It was alleged that the suit shop was required by the plaintiff-respondent for his own use and that the defendant had also caused damage to the suit shop. On the aforesaid grounds the plaintiff claimed a decree for arrears of rent as well as for ejectment. The defendant pleaded that the shop had been leased out to him by Udai Bhan whose widow Smt. Sunder was alive and the plaintiff alone had no right to file the suit. While denying all the grounds of ejectment relied upon by the plaintiff namely, personal necessity, default in payment of rent and damage to the property, the defendant further pleaded that the notice of termination of tenancy was bad inasmuch as it had not been served on behalf of Smt. Sunder.
3. After recording the evidence produced by the parties, the trial court decreed, the plaintiff's suit for Rs. 80 on account of arrears of rent and also for ejectment. On appeal by the defendant the judgment and decree by the trial court were affirmed. Hence this second appeal by the defendant.
4. At this stage, I may point out that the only two points urged on behalf of the defendant-appellant in the lower appellate court were that the plaintiff alone was not entitled to sue and that the notice of termination of teoiancy was not valid inasmuch ,as it had been issued only on behalf of the plaintiff and not on be-half of the co-heir Smt. Sunder. Before me also only these two points have been pressed.
5. The learned District Judge, Bikaner has decided both the aforesaid points against the defendant on the ground that after the death of Udaibhan, the defendant had attorned in favour of the plaintiff alone and, therefore, the plaintiff was competent to maintain the suit without impleading Smt. Sunder as a party to the suit and that notice of termination of tenancy served on behalf of the plaintiff alone was valid.
6. Learned counsel for the appellant has submitted that the adoption of Lajpatbhan, plaintiff, to the deceased plaintiff Udaibhan is not established and that there is no evidence on the record to show that the defendant had attorned in favour of the plaintiff alone and was, therefore, precluded from challenging the plaintiff's right to maintain the suit on account of the provisions of Section 116 of the Evidence Act. It may be pointed out that the plaintiff's statement that he had been adopted by Udaibhan has been accepted by the courts below and since this point had not been argued and pressed before the lower appellate court, it is now not open to the defendant to agitate this point here. However, the more important point is whether it has been established that the defendant had attorned in favour of the plaintiff and if that is established, the objection regarding lack of proof of adoption of the plaintiff to Udaibhan loses its significance as Section 116 of the Evidence Act would then come to the rescue of the plaintiff.
7. The learned District Judge has relied on the statement of the defendant Hari Ram as DW/1 where he has stated that after the death of Udaibhan the plaintiff used to recover rent and the rent-receipts were also issued by him. He has further stated that when Lajpatbhan, plaintiff, did not accept the rent tendered by him, then he sent it by Money Orders. The defendant goes on to state that after refusal by Lajpatbhan he deposited the rent in court under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') in favour of the plaintiff. On these admissions the learned District Judge recorded a finding in favour of the plaintiff regarding at-tornment by the defendant in favour of the plaintiff. Learned counsel for the appellant, however, urged that the rent had been paid to the plaintiff not in his right as sole heir of the landlord but under the instructions of Smt. Sunder who succeeded to the property of the deceased landlord Udaibhan and, therefore, at best the plaintiff can only be considered as one of the two co-heirs of Udaibhan. In support of his contention he has relied upon Nanalal Girdharlal v. Gulam-nabi Jamalbhai Motorwala AIR 1973 Guj 131 (FB) wherein it was observed that where a lease is eranted by a landlord who is the sole owner of the leased property and thereafter, by testate or intestate succession or by transfer inter vivos, the leased property comes to be owned by two or more co-owners no one single co-owner can give notice to quit determining the lease. The notice must be given by or on behalf of all co-owners. But where a lease is granted by a co-owner professing or claiming to be the sole owner of the leased property or one of the co-owners grants the lease without disclosing that he is also acting on behalf of the other co-owners the notice to emit given by him is sufficient to determine the lease.
8. In the present case lease has not been granted initially by the plaintiff but it was Udaibhan who initially inducted the defendant into the suit premises and the question which arises for consideration is whether the defendant attorned in favour of the plaintiff alone who is consequently competent to terminate the tenancy and file the suit. In this connection reference may be made to Satya-narayanaraju v. Josyula Hanumayamma, AIR 1967 SC 174. It was held in that case that the attornment is one mode of recognising a person as one's landlord, just as payment of rent is another mode for the purpose. Their Lordships in this connection referred to paras. 745 and 747 of Foa's General Law of Landlord and Tenant. In para. 745 it is mentioned that recognition as landlord by the tenant may toe by express agreement, by attornment or other formal acknowledgement (as by paying a nominal sum of money), by payment of rent, or of a nominal sum as rent, or by submission to a distress. In para. 747 it is further mentioned that the tenant is not allowed to impeach the title of a person to whom he has paid rent, or whose title he has otherwise recognised, without showing a better title in some other person.
9. Again in Munavar Basha v. Narayanan it was held that whatever shows the assent of the tenant to the alienation of the reversion and his recognition of the alienee as landlord is a valid attornment. A promise to pay rent to the alienee and a tenant's continued occupancy under the tenancy with notice of alienation amounts to a recognition of the purchaser as his landlord.
10. The lower court as already stated above, has found that the defendant's version that he was paying rent to the plaintiff only under the instructions of Smt. Sunder is not correct, inasmuch as no such defence was taken in the written statement. I too do not see any reason for taking a different view and concur in the conclusion arrived at by the lower appellate court that the defendant had recognised the plaintiff as his landlord and had been consistently paying rent to him after the death of Udaibhan It is true that no fresh tenancy was created between the plaintiff and the defendant but the existing lease was continued with the substitution of the plaintiff Lajpat-bhan as a new landlord in place of the old deceased landlord Udaibhan. A written rent-note or a fresh leasing out is not an essential requirement ,of attornment which may come into being by payment of rent or by recognition of a person as one's landlord. Having regard to the statement of the defendant where he has admitted that the rent was beine paid to Lajpatbhan, plaintiff, and on his refusing the same had been sent by Money Order and that after the death of Udaibhan the rent receipts issued by the plaintiff were in his name and that the rent had also been deposited in favour of the plaintiff under Section 19-A of the Act, it must be accepted that the defendant had attorned in favour of the plaintiff and is now estopped from challenging his position as his landlord. In this view of the matter the finding by the learned District Judge that the plaintiff alone could maintain the suit and the notice served on his behalf only was valid and proper must be upheld.
11. No doubt, the grounds of personal necessity and damage to the property have not been pressed by the plaintiff in the courts below, there is no denying the fact that rent for 16 months had fallen into arrears at the time of filing of the suit and the defendant has miserably failed to show that he had tendered the rent and had not committed default in payment of 16 months rent. The defendant is consequently liable to be ejected under Section 13 (a) of the Act.
12. The result is that I do not see any force in this appeal and hereby dismiss it. But in the circumstances of the case I make no order as to costs.
13. 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. Leave is refused.
14. Learned counsel for the appellant further submits that his client has been in occupation of the suit shop for a very long time and, therefore, some time may be granted to him to enable him to find alternative suitable accommodation. In the circumstances, six months' time is granted to the appellant to hand over vacant possession of the suit shop to the respondent, provided he pays arrears of rent, if any, within one month from today and goes on paying month to month rent thereafter by the 15th of the succeeding month.