S.S. Byas, J.
1. This civil second appeal has been filed by the plaintiff, whose suit for recovery of possession over immovable property was decreed by the trial Court but was dismissed is appeal by the lower appellate court.
2. Plaintiff Nakoo Singh instituted a suit for recovery of the possession over the house described in para 1 of the plaint, situate in the town of Jaisalmer against the defendant in the Court of Munsif, Jaisalmer on April 20, 1968. The case set-up by him in that the house in dispute was declared an evacuee property and later on it was put in the compensation pool. It was sold by the Managing Officer, Jaisalmer. In that auction it was purchased by Govind Ram on July 19, 1967 for a sum of Rs. 1500/-. Afterwards, Govind Ram sold this house to the plaintiff for a sum of Rs. 1700/- on Feb, 9, 1968 and executed sale deed in his favour. The house in dispute is in possession of the defendant. He hid no lawful authority to remain possession of it. His possession was unauthorised. In alternate, it was pleaded that in case the defendant was taken as a tenant in the suit house, he was still then liable for eviction, His tenancy was determined by a written notice to quit. It was also urged that the defendant had denounced the title of the plaintiff. The relief claimed was the recovery of possession over the house is dispute, taking the defendant as a trespasser over it. The suit was resisted by the defendant, categorically denying all the averments made in the plaint. It was denied that the house in dispute was an evacuee property or was sold in public auction. It was also denied that it was purchased by Govind Ram in public auction or that the plaintiff purchased it from Govind Ram. According to him, the house was of his ownership. In alternate, ha also pleaded that in case he is taken to be a tenant, the suit is not maintainable because the tenancy was not validly determined. Some other objections were also raised. The learned Munsif raised as many as eleven issues, the last being that of relief. Both the parties adduced evidence during trial. On the conclusion of trial, the leaned Munsif held that (1) the house in dispute was an evacuee property, (2) it was sold in public auction and Govind Ram purchased it on July 19, lvf.7 for a sum of Rs. 1500/-, (3) Govind Ram sold it to the plaintiff for a sum of Rs. 1700/-, (4) the plaintiff was, thus the owner of the house in dispute, (5) the tenancy between the parties did not stand proved and the defendant was a trespasser and (6) since the suit was based on title, no question of determining the tenancy arose the learned Minsif on the basis of his findings, decreed the plaintiff's suit. The defendant went in appeal, which was heard by the learned Additional Civil Judge, Jodhpur. He recorded his findings as under:
the defendant's tenancy was not validly determined in accordance with the provisions of Section 106, Transfer of Property Act;
(2) the Custodan and Govind Ram were necessary parties. The suit could not proceed without impleading them; and
(3) the plaintiff could not prove his title over the house in dispute because the sale certificate Ex. 2 was not proved.
He, therefore, allowed the appeal and dismissed the plaintiff's suit. Aggrieved against the judgment and decree of the lower appellate Court, the plaintiff has come up in appeal.
3. I have beard the learned Counsel for the parties and gone through the case tile carefully.
4. It was argued by the learned Counsel for the plaintiff that the finding of the trial court is that no relationship of landlord and tenant exist between the parties. Thus there was no question of tenancy and the defendant was not living in the house in dispute as a tenant of the plaintiff, Govind Ram or the Custodian. This finding was not set-aside by the lower appellate Court. And yet the suit was dismissed simply because the notice determining the tenancy was held to be invalid. It was argued that without first deciding the question of relationship of landlord and tenant between the parties, the question of notice should not have been decided by the lower appellate Court. Mr. M.K. Trivedi, learned Counsel appearing for the respondent frankly conceded that the question of tenancy between the parties was not decided by the first appellate Court. According to the trial Court, no tenancy came into existence between the parties and the defendant's possession over the house in dispute was not in his capacity as tenant. Mr. Trivedi submitted that in case the appeal is allowed, the case should be sent back to the lower appellate court with direction to decide the appeal afresh in accordance with law.
5. In view of the above submissions of the learned Counsel or the parties, I need not detain myself for long. The trial Court decreed the suit against the defendant, taking the plaintiff to be the owner of the house in dispute and the defendant as a trespasser in it. The trial court held that the defendant was not occupying the house in dispute as a tenant of the plaintiff or the Custodian or Govind Ram. The learned Judge of the lower appellate Court has not set-aside the finding of the trial Court on the question of tenancy. And yet without deciding the question of tenancy and without coming to the conclusion that the tenancy exists between the parties, the question of validity of notice was taken and the suit was dismissed, holding the notice to be invalid and that the tenancy did not validly stand determined. It was putting the cart before the horse. Unless the question of tenancy was first decided in favour of the defendant, no question of determining it arose. The suit could not be dismissed on the ground of invalidity of the notice unless the question of tenancy was first decided. The lower appellate court has not decided the question of tenancy and left the matter open. I he dismissal of the suit, in these circumstance on the ground of the invalidity of the notice is unsustainable.
6. The only proper course for me is to send back the appeal to the lower appellate court for hearing the parties & there after deciding the appeal afresh on merits.
7. In the result, the plaintiff's appeal is allowed. The appellate judgment and decree of the learned Additional Civil Judge, Jodhpur dated January 31, 1973 are set-aside. The appeal is sent back to him with directions to hear the parties afresh and thereafter decide the appeal keeping in view the observations made above. The parties are left to the bears their own costs of this Court.