M.L. Shrimal, J.
1. This is the defendant-tenant's second appeal arising out of a suit for ejectment, and damages for use and occupation.
2. Tersely put and shorn of unnecessary details the case set up by the plaintiffs in the plaint was that Daluram, father of appellant No. 1 and husband of appellant No. 2 took on lease the premises described in para No. 2 of the plaint, situated in Alamsahar on payment of Rs. 2/- per annum as rent, and executed the rent note Ex. 1, dated Sawan Sudi 12, S. 1989 in favour of the plaintiffs. After his death the appellants continued to remain in possession of those premises on the same terms and conditions except that the rate of rent was enhanced from Rs. 2/- per annum to Re. 1/-per month. In support of their contention the plaintiffs placed reliance on the admission Ex. 13 made by Daluram, predecessor in interest of the defendants wherein he admitted that he was the tenant of the plaintiff in the disputed premises on payment of yearly rent of Rs. 2/-. They also placed reliance on Ex. 5, dated May 9/1955 alleged to have been filed by the defendants in reply to an application under Order XXI Rule 58 C.P.C. made by the plaintiffs in case No. 170/ 1950. In paras 3, 4 and 7 of the plaint it was averred that the defendants denied the title of the landlords and renounced their character as that of tenant. On the above grounds the plaintiffs claimed a decree for vacant possession of the premises and also for payment of Rs. 31/- as mesne profits. The appellant No. 1 Bhura remained ex parte and appellant No. 2 Mst. Chhoti contested the suit. She denied the ownership of the plaintiffs regarding the suit premises and also denied the tenancy. In reply to para No. 2 of the plaint she stated that neither the defendant No. 1 nor the defendant No. 2 was the tenant of the plaintiffs and they were within their right to make constructions over the suit property. On the pleadings of the parties the trial court framed 8 issues. The plaintiffs examined five witnesses in support of their case. The defendant-appellant Bhura did not appear in the witness-box and the appellant No. 2 Mst. Chhoti, besides her own statement, examined D.W. 2 Nathu. The trial court held that Ex. 1 was executed by Daluram (deceased). The learned Munsiff held that the admission recorded in Ex. 13 was made by Daluram in the court on July 17, 1934. Ex. 5 was also held to be proved. Placing reliance on the above-mentioned documents as well as on the statement of Bahanwarsingh and Lalsingh, and other witnesses examined on behalf of the plaintiffs, the learned Munsiff held that it was proved beyond doubt that the defendants were the tenants in the disputed house and it belonged to the plaintiffs. He also held that the defendants denied the title of their landlords and as such the plaintiffs were entitled to get a decree for eviction under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Act No. XVII of 1950). While deciding Issue No. 6, the learned Munsiff observed that the tenancy was created at the time when the Transfer of Property Act was not in force, and as such the notice terminating the tenancy was not required to be given by the landlords to the defendants. In the alternative, it was held that the suit for eviction was based on the ground of denial of title by the tenants and as such the plaintiffs could file a suit and obtain a decrees for eviction without giving any notice of terminating the tenancy. On the basis of the above findings the learned Munsiff decreed the suit of the plaintiffs against the defendant-appellants before this court by his judgment and decree dated September 13, 1966. The appellant No. 1 Bhura did not challenge the judgment and decree of the trial court by filing an appeal, and the appeal filed by Mst, Chhoti appellant No. 2 was dismissed by the learned Senior Civil Judge No. 2, Jaipur City and the findings arrived at by the learned trial court were affirmed. The aggrieved defendant-appellants have come up in second appeal before this court.
3. Regarding the fact that the appellants are the tenants of the respondents the learned counsel for the appellant being conscious of the fact that it was a finding of fact has not challenged the same before this Court. The learned counsel appearing on behalf of the appellants has frankly conceded that he is not going to press the appeal filed by the appellant No. 2 but he will be pressing the appeal on behalf of appellant No. 1 Bhura.
4. The learned counsel appearing on behalf of the respondents has raised a preliminary objection regarding the maintainability of the appeal. He contended that as Bhura appellant did not challenge the judgment and decree passed by the trial court by filing an appeal, it is not open to him to file this second appeal, I find no force in this contention. In appeal No. 51/1966 filed by Mst. Chhoti before the Senior Civil Judge No 2, Jaipur City. Bhura was impleaded as respondent No. 2. The suit was filed against both the appellants treating them as tenants and a joint decree for vacant possession and mesne profits was sought against them. The claim of the plaintiffs was decreed in its entirety against both the defendant-appellants. In the appeal filed by Mst. Chhoti there was no possibility of a decree being passed which might impose an onerous liability on Bhura. The decree of the trial court proceeded on a ground common to both the defendants. This was essentially a case in which the court's jurisdiction under Order 41, Rule 4 C.P.C. could be exercised. In Karamsingh v. Pratapchand, AIR 1964 SC 1305 the landlord in that case filed an action for ejectment against the tenant and the sub-tenant in respect of the premises on the ground that the tenant had sublet the premises without the landlord's consent. The trial court decreed the suit. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the trial court. It was urged before the Hon'ble Supreme Court that the appeal by the sub-tenant to the subordinate Judge was Incompetent. The Hon'ble Supreme Court held that the sub-tenant was entitled to have the decree set aside even though thereby the tenant would also be free from that decree. In Narsingh Das v. Bhairon Dan, AIR 1961 Raj 81, Hon'ble I.N. Modi, J. observed as under:
'The requirement is that the decree appealed from should proceed on any ground common to all the plaintiffs or to all the defendants. In such a case, an appeal by one is virtually treated as an appeal by all, though they may not be parties to the appeal.'
Thus where all the defendants have a common ground against the plaintiffs and the plaintiffs make a common ground of attack against the defendants, the mere fact that one of the defendants appealed to the lower appellate court would not make any difference. The other defendant also continued to be a party and he has equal right to question the ultimate decision that is made. The preliminary objection that the defendant Bhura not having preferred an appeal to the first appellate court had no right to come to the High Court directly and prefer an appeal jointly with the other defendant has no force.
5. As regards the merits of the appeal the learned counsel for the appellants has firstly urged that the case of the plaintiff-landlords was not covered by Section 13(f) of the Act No. XVII of 1950. In support of this contention he made two-fold submissions. Firstly, that the appellant Bhura neither renounced his character as that of a tenant, nor denied the title of the landlord-respondents. There is nothing on the record to prove that the tenant-appellant No. 1 has disentitled himself to the protection of Section 13 (1) of the Act No. XVII of 1950. He drew my attention to the averments in the plaint and urged that the relevant averments regarding denial of title of the landlords and denial of appellants' character as tenants are in paras 3, 4, 7 and 7 (a) of the plaint. Mere allegations in the pleadings are not sufficient to deprive the defendants of the protection of Section 13 of the Act No. XVII of 1950. A perusal of EX. 9 would show that criminal proceedings under Section 107 Cr.P.C. were initiated by Mst. Chhoti-appellant No. 2 alone and not by appellant No. 1 Bhura. The only evidence on record in support of the plaintiffs' plea against Bhura-appellant is that of Lalsingh (P.W. 3) who in his statement recorded by the trial court on August 1, 1962 has stated as under:
^^eqnk;ykgedh dkbZ uksfVl geus ugh fn;k A fely ua- 37@57 eseqnk;ykge us gekjh feyfd;r ls bUdkj fd;k ftldk QSlyk bZ ,Dl 9 gS A mlh oDr lseqnk;ykge dh fdjk;snkjh [kRe gqbZ A**
The learned counsel urged that the above statement is not sufficient to deprive the defendant-appellant No. 1 of the protection of Section 13 (1) of Act No. XVII of 1950. The tenor of the statement shows that the case of the plaintiffs throughout was that Mst. Chhoti alone denied the plaintiffs' title. Besides this, it was the duty of the plaintiffs to produce the documentary evidence in support of the bald statement of Lalsingh (P.W. 3) in the court. The learned counsel further urged that the learned Senior Civil Judge who decided the first appeal erred in holding that it was an admitted fact that the defendants have clearly denied the title of the plaintiffs as landlords and their status as tenants of the plaintiffs much prior to the filing of the suit. The learned Judge under wrong assumption of facts failed to consider the evidence on record and as such he is entitled to challenge the findings even on the ground of insufficiency of evidence on record.
6. Mr. Dutt appearing for the respondents has urged that the findings that both the appellants had renounced their character as that of tenants or denied landlords' title is a finding of fact and cannot be challenged in second appeal.
7. There is no dispute between the parties on the point that the question whether the tenants have renounced their character as such or denied the title of the landlords is a question of fact. Thus the only question which remains to be determined regarding this point is whether the finding regarding forfeiture of tenancy recorded by the trial court and the first appellate court is not supported by any evidence or it is based on inadmissible evidence i.e., whether it is a case of no evidence at all. The learned counsel for the appellants has taken me through the record of the case with special stress on the statement of Lalsingh (P. W. 3) and has urged that Lalsingh's statement is not sufficient or adequate to hold that Bhura-appellant No. 1 denied the title of the landlords prior to the institution of the suit. As already quoted above P. W, 3 Lalsingh did state that the defendants denied the title of the plaintiffs in criminal case No. 37/57, and this witness was not cross-examined by the defendants on this point. As such it cannot be said that it is a case of no evidence. This court cannot interfere in second appeal and set aside the finding of fact so long as there was some evidence to support it and it could not be branded as arbitrary, unreasonable or perverse Reference may be made to Mattualal v. Radhelal, AIR 1974 SC 1596.
8. In Ramappa v. Bojjappa, AIR 1963 SC 1633 Hon'ble Gajendragadkar J. as he then was, speaking for the court laid down the law as under:
'Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling, and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.'
9. Nothing has been shown to me on the basis of which it can be said that the evidence in this case was misread by the trial court or first appellate court. This court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross or inexplicable error may seem to be. No error or illegality or omission as is referred to in Sub-section (1) of Section 100 Civil Procedure Code has been pointed out by the learned counsel for the appellants. The finding arrived at by the lower appellate court regarding denial of title of the plaintiffs-landlords by Bhura-appellant No. 1, and by Mst. Chhoti appellant No. 2 was arrived at fairly in accordance with the procedure prescribed and it is not liable to be reopened in this appeal.
10. The second contention raised by the learned counsel for the appellant is that the written statement filed by the appellant No. 2 Mst. Chhoti cannot be read against the appellant No. 1 Bhura. Reliance was placed on Gani Mia v. Wajid Ali, AIR 1935 Cal 393, wherein the court observed as under:
'In support of the second contention it is said that the denial in the written statement filed in the rent suit of 1919 cannot in law sustain a forfeiture. There I agree with the contention of the appellant's Advocate. The said denial was not by all the tenants, and even if the denial had been by all the recorded tenants, as all the defendants whom the plaintiff admits to be tenants had not filed the said written statement, the statements made therein are not sufficient in law to sustain a forfeiture of the tenancy.'
11. In reply to the above contentions of the appellants learned counsel for the respondents vehemently urged that the defendant-appellant No. 1 Bhura did not contest the suit in the trial court and the suit was contested by the appellant No. 2 Mst. Chhoti on behalf of both the parties. In reply to the averments made in para No. 2 of the plaint she stated in the written statement in unequivocal and categorical terms that neither she nor Bhura was a tenant of the plaintiff respondents. The above mentioned averments in para 2 of written statement filed by Mst. Chhoti are binding on the appellant No. 1 also. Reliance has been placed on Tikoo Ram v. Jhabar, ILR (1960) 10 Raj 6. In that case Hon'ble Jagat Narayan J., as he then was, while discussing the importance of an admission made by Tikku Ram a co-defendant in the written statement filed by him, observed as under:
'When several persons are jointly interested in the subject-matter of the suit, an admission of any one of them is receivable against himself and fellows, whether they be all jointly suing or sued, provided the admission related to the subject-matter in dispute and is made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.'
12. I respectfully agree with the above decision. The facts of the case Gani Mia v. Wajid Ali, (AIR 1935 Cal 393) are distinguishable from the facts of the case on hand. It is the case of the appellants that the decree passed by the trial court proceeded on common ground and as such the appeal filed by Mst. Chhoti in the first appellate court should virtually be treated as an appeal by him and he is entitled to file the present appeal against the impugned judgment even though he did not file an appeal against the judgment of the trial court. In such circumstances, it is too late in the day for him now to say that though he should be given the advantage of the appeal filed by Mst. Chhoti and it may be treated as an appeal by all but he should not be saddled with the disability of forfeiture of tenancy on account of the written statement filed by Mst. Chhoti and it should not be treated as one filed on behalf of both the appellants. In the peculiar facts and circumstances of the ease on hand I am of the opinion that the appellant Bhura is bound by the averment regarding denial of title of the plaintiffs made by Mst. Chhoti in her written statement and has incurred the disability provided under Section 13 (f) of Act No. XVII of 1950 on this count also. It will lead to unnecessary multiplicity of legal proceedings if the plaintiffs would be obliged to file a second suit for ejectment on the ground of denial of title by the tenants and not allowed to avail of that plea in the suit in which written statement is filed especially when it has been pleaded in the plaint that defendants have renounced their character.
13. The third contention of the learned counsel for the appellants is that Section 28 of Act No. XVII of 1950 provides that the provisions of the Act shall be in addition to and not in derogation of any other law on the subject for the time being in force in any part of Rajasthan. That in order to secure eviction of a tenant a landlord must fulfil the conditions prescribed by the relevant provisions of the Transfer of Property Act. I agree that the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is supplementary provision of law and it does not eliminate the statutory requirement of determination of tenancy but it superimposes a lien on eviction which otherwise may be available in conformity with the Transfer of Property Act The law on this point stands well settled. The Rajasthan Act No. XVII of 1950 is extended to check undesirable eviction of tenants and is intended to be protective statute. The Rent Act, namely, Rajasthan Act No. XVII of 1950 does not give a right to the landlord to evict a contractual tenant without first determining the tenancy. Reference may be made to Abbasbhai v. Gulamnabi, AIR 1964 SC 1341. The provisions of Section 13 of the Rajasthan Act No. XVII of 1950 are in addition to those of the Transfer of Property Act, 1382. But the question which needs determination is, does the Transfer of Property Act apply to a lease executed prior to the extension of the Act to the area regarding which the lease was granted. It is an admitted fact that in Samwat Year 1989 when the lease deed Ex, 1 was executed the Transfer of Property Act was not extended to the village where the suit property is situated. I hold that the Transfer of Property Act does not apply to leases constituted before the Act came into force.
14. Fourthly it was urged that even if it is held that the relationship of the landlord and tenant was created between the parties or their predecessors in interest at the time when the Transfer of Property Act was not in force then also some notice to quit ought to have been given to the tenant by the landlord. Under the rules of justice, equity and good conscience as already held above, the defendants, having denied the title of the plaintiffs before the institution of the suit, were not entitled to a notice at all not because the disclaimer works as a forfeiture but because it is the evidence of an allegation to put an end to the tenancy and supersedes the necessity for notice The Allahabad High Court in Haidri Begam v. Nathu, (1895) ILR 17 All 45, observed as under:
'In a suit by a landlord for ejectment of a tenant, no notice of determination of tenancy, under Section 106 of Act. No. IV of 1882, is necessary where the defendant has, prior to the suit being brought, denied the plaintiff's title as landlord and that there was any contract of tenancy between them.'
15. In Ratenswar Goswami v. Mongoli, AIR 1951 Assam 70, it was held by their Lordships that in view of the written statement of the defendant denying the landlord's title, the defendant would not be entitled to notice to quit. In my opinion a notice in writing as a preliminary to a suit based for ejectment on forfeiture of a lease is not based on the principles of justice, equity or good conscience, and would not govern the lease made prior to the coming into force of the Transfer of Property Act. The requirement of notice in the case on hand cannot be insisted upon. The mere institution of the legal proceedings for eviction fulfils the requirement of law for determination of the lease. The law on this point stands well settled by their Lordships of the Supreme Court in Namdeo v. Naramadabai AIR 1953 SC 228.
16. The learned counsel for the appellant prays that a period of one year may be granted to the appellants for vacating the premises in dispute. Learned counsel for the respondents agrees for six months' time. Looking to the facts and circumstances of the case, it will be in the interest of justice to grant one year's time to the appellants to vacate the premises, provided they pay the entire amount of the arrears of rent on or before May 1, 1976 and go on paying the same on or before fifteenth of each subsequence month till the vacant possession of the premises is delivered to the landlords by the tenants.
17. For the reasons given above, I find no force in this appeal. The appeal is dismissed. The judgments and decrees of the two courts below are affirmed and the suit of the plaintiffs is decreed as indicated above. The parties will bear their own costs of this court.