C.M. Lodha, J.
1. This is defendant-tenant's second appeal arising out of a suit for ejectment and arrears of rent and also for award of mesne profits after the termination of the tenancy.
2. Only the question of ejectment has been raised before me, and, therefore, I need not advert to the question of arrears of rent and mesne profits. The premises in question which consists of one Chandhani with a balconi facing west, one Tibara, one Chandani facing north, one Mahal two Medies and one room on the roof shown in yellow colour in the plan attached to the plaint were admittedly rented out to the defendant-appellant on 17-9-1949 at a monthly rent of Rs. 10/- by Shrinath Bhat, who gifted the whole house in which the above mentioned apartments are situated to the plaintiff respondent Govindlal by a registered gift-deed, dated 25-1-1965. The plaintiff thereafter-served a notice of termination of tenancy and filed the present suit for ejectment from the premises in question on the ground that the same were required reasonably and bonafide for his own occupation as well as for the occupation of his family. The defendant resisted the plaintiff's suit. He denied alleged gift by Shrinath that in favour of the plaintiff and further pleaded that Shrinath Bhat had no right to gift away the disputed property which was an inalienable grant made in favour of Shrinath by the former State of Jaipur. He also denied the requirement of the premises in question by the plaintiff for his own occupation.
3. On the pleadings of the parties the trial court framed five issues. Under issue No. 1 it held that the execution of the gift deed by Shrinath in favour of the plaintiff was proved. Issue No. 2 pertained to the right of Shrinath to gift away the property in question. This issue was struck off by the trial court's order dated 20-4-1968. The defendant filed revision from that orders in this Court which was, however, dismissed on a preliminary ground that the revision was not maintainable. Issue No. 3 was with respect to the alleged personal necessity of the landlord. This was decided against the plaintiff, with the result that the suit was dismissed. Issue Nos. 4 and 5 pertain to arrears of rent and relief.
4. Aggrieved by the judgment and decree by the trial court the plaintiff filed appeal which was allowed by the Additional Civil Judge No. 1, Jaipur City by his judgment dated 25-10-1970 and the plaintiff's suit for ejectment was decreed. Consequently, the defendant has come in second appeal to this Court.
5. Learned Counsel for the appellant has urged that issue No. 2 had been wrongly struck off by the trial court consequently the defendant could of not lead evidence to show that the plaintiff did not get a valid title to the property in question. It is contended that Section 119 Indian Evidence Act, did not operate as a bar in the way of the defendant from challenging the derivative title of the plaintiff. The other point argued on behalf of the appellant that the plaintiff-respondent has miserably failed to prove his bonafide and reasonable requirement for the premises in question.
6. Issue No. 2 was undoubtedly struck off by the trial court on the application of the plaintiff. Nevertheless, it appears that the defendant did give evidence on this point. It has been stated by the defendant No. 1 Brijbhushan Lal in his statement as D W. 1 that half the house, referring thereby to the premises in question belonged to Public Works Department. In the course of cross-examination the plaintiff confronted him with the Jagir Collector's Order dated 26.6.1957 marked Ex. D.W. 1/C wherein it has been mentioned that the property in dispute has been declared as the personal property of the Jagirdar Srinath Bhat. It further appears that inspite of the issue having been struck off the learned trial court while deciding the case gave its finding on issue No. 2 also and held that there was no convincing evidence to show that Shrinath Bhat was not the absolute owner of the property in question and was therefore not competent to transfer the same. It appears from the judgment of the learned first appellate court that the finding of the trial court in this respect was not called into question, nor any argument was advanced before that court that issue No. 2 had been wrongly struck off and thereby the defendant's case had been prejudiced. This is clear from the following observation contained in the judgment of this first appellate court:
At the outset it may be mentioned that findings of the trial court on issues, other than issue No. 3 have not been challenged as incorrect by any of the counsel for the parties.
In these circumstances it is not open to the appellant to urge this ground in second appeal. Apart from that it is admitted by the defendant that he took the premises in question on lease from Shrinath Bhatt. It has been found by the trial court and not challenged either before the first appellate court or here that the execution of the gift deed by Shrinath Bhatt in favour of the plaintiff is established. It is not the defendant's case that the title of the original lessor came to an end subsequent to the commencement of the tenancy. learned Counsel for the appellant has put strong reliance on Krishna Prosad v. Beraboni Coal Concern AIR 1937 P.C. 251, and Dahchand v. Dudamchand 1963 (13) I.L.R. (Raj.) 881 in support of his contention that after Shrinath Bhatt, had transferred the property in question to the present plaintiff, the defendant acquired a right to challenge the competency of Shrinath to gift away the property in question to the plaintiff, and the rule of estoppel contained in Section 116 of the Evidence Act would not in such circumstances operate as a bar against the defendant.
7. On the other hand learned Counsel for the respondent has referred to Udaichand v. Surajmal 1969 RLW 468 and Smt. Charubala Basu v. Garman Gomes AIR 1934 Cal. 499 in support of his submission that the defendant would be estopped under SI 16 the Evidence Act from disputing that Shrinath Bhatt, who had inducted defendant into the premises in question as a tenant was the owner of the property. There is no doubt that what a tenant is precluded from denying is that the lessor had a title on the date of lease and this principle does not apply to disentitle a tenant to dispute the derivative title of a person who claims to have become entitled to the property by transfer from the original landlord, but, here what is being denied is the title of Shrinath Bhatt himself who had admittedly leased out the property to the defendant. It is not the defendant's case that Shrinath lost his title sub-sequent to the commencement of the tenancy. This what is in fact being denied is not the derivative title of the plaintiff but the title of Shrinath Bhatt to the property in question. This, in my opinion, the defendant is not entitled to do. In Udaichand v. Surajmal AIR 1934 Cal. 499, the right of Bhoordas, the original owner and landlord of the defendant-tentant, was denied and it was pleaded that Bhoordis had no rights to alienate he leased premises to the plaintiff. It was held that it was no doubt open to the defendant to show that Bhoordas subsequently lost his title to the property, but sale this was not the case the defendant's plea was rejected. In this view of the matter I am of opinion that the defendant is estopped from denying the title of Shrinath Bhatt to the property in question.
8. This brings me to the question of personal necessity of the landlord. The learned Additional Civil Judge has found that the plaintiff and the numbers of his family were previously living in 'Badal Mahal' belonging to the Maharaja of Jaipur with whom his father was in service, and that since the accommodation there was very short the plaintiff wanted to shift to the premises in question. He has further found that there are 7 members in the family of the plaintiff and the accommodation in his possession falls short of his requirement. learned Counsel for the appellant has, sterneously urged that the first appellate court has misread the content of para No. 6 of the written statement, and, therefore, his finding in this connection is vitiated. In part No. 6 of the written statement the defendant has stated that all the apartments in the ground floor of the house which were previously occupied by Kunjilal Bhatt maternal uncle of the plaintiff are now lying vacant and if the plaintiff so chooses, he can occupy the same now, However, in the course of evidence the defendant state that the five 'Kotaries' in the ground floor of the house in question were still in possession of Kunjilal Bhatt. It further appears from Sue judgment of the court below that it was not disputed before it that they were in occupation of Kunjilal Bhatt. Even apart from that, the plaintiff had a choice in the matter and in case his requirement for a suitable accommodation in the house in question is proved the tenant cannot insist that the landlord must squeeze his needs and comforts and live in the 'Kotaries' on the ground floor. I have been taken through the relevant portions of the evidence produced by the parties and do not find anything wrong with the finding arrived at by the first appellate court.
9. 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.
10. Learned Counsel for the appellant prays for grant of time to enable his client to find out a suitable alternative accommodation. In the circumstances of the case, I grant six months' time to the appellant to hand over vacant possession of the premises in question to the respondent on the condition that he pays arrears of rent, upto the end of April 1971 within the month from to-day and goes on paying month to month rent hereafter within 15 days of its falling due.
11. Learned Counsel for the appellant prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.