1. The defendant is the appellant. He obtained a permanent lease of a house site from the trustee of a religious trust in 1911. The successor in the trusteeship brought this suit in 1915 to eject him. That the permanent lease is invalid against the trust cannot be denied and though the 2nd ground in the appeal memorandum contends that it is valid against the trust, the point was not seriously argued [see Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 19 Bom. L.R. 567(1917) M.W.N. 477 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147
2. The next contention was that the defendant, who has built a house on the leased site, is entitled to compensation before his evictment and is not merely entitled to be allowed to remove the materials of the house (which he has been allowed to do by the decrees of the lower Courts). Mr. T.V. Venkatarama Aiyar conceded that he cannot rely on Section 51 of Act IV of 1882 (Transfer of Property Act) in support of his claim to compensation [see on this point our judgment in Perumal Gramani v. Mohamad Kasim Sahib 28 Ind. Cas. 840
3. He, however, relied on Section 2 of Act XI of 1855 (Mesne Profits and Improvements Act). That Act applies only to cases tried on the Original Side of the High Courts to which English Law applies and even in such oases, we are not, as at present advised, prepared to agree with certain obiter dicta quoted by Mr. T.V. Venkatarama Aiyar that the words 'other absolute estate' in Section 2 of Act XI of 1855 include the estate of a lessee with permanent occupancy rights.
4. Lastly, it was contended that the plaint does not allege that the tenancy from year to year created by payment of rent [see Municipal Corporation of Bombay v. Secretary of State 29 B. 580 at p. 588 : 7 Bom. L.R. 27 had been put an end to by a proper notice to quit and that, therefore, the suit should be dismissed as not disclosing a complete cause of action in ejectment.
5. It may be conceded that though this point was not taken in the lower Courts, this Court even in second appeal can allow the point to be taken and argued and can decide the case on that point [see Subba v. Nagappa 12 M.P 353 : 13 Ind. Jur. 256 : 4 Ind. Dec. (N.S.) 595 and Abdulla Rawutan v. Subbaroyyar 2 M.P 346 : 3 Ind. Jur. 160 : 1 Ind. Dec But we do not think we are bound to consider it and to decide this second appeal on a point not taken in the lower Courts. In Subba v. Nagappa 13 Ind. Jur. 256 : 4 Ind. Dec. (N.S.) 595 the tenant had been in possession from 1869 and the case was finally decided against the tenant on the finding submitted after remand that reasonable notice had been given.
6. In Abdulla Rawutan v. Subbarayyar 2 M.P 346 : 3 Ind. Jur. 160 : 1 Ind. Dec. also, the tenants had long been in possession and though the suit was remanded for a finding, the ultimate result of the case is not known.
7. We do not think that these Cases decide that we are bound in second appeal to consider a ground of defence not taken in the lower Courts, unless perhaps it is a question of limitation arising out of proved or admitted facts.
8. Order XLI, Rule 2, Civil Procedure Code, says: 'The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal but the Appellate Court shall not be confined to the grounds set forth, etc.'
9. Now no ground of objection was set forth in the appeal memorandum presented to the lower Appellate Court on the question of want of notice and it was not argued there. The lower Appellate Court, therefore, was not bound to take the point itself and its decision on the grounds argued before it is correct. The defendant in this case obtained his lease only 4 or 5 years before this suit was brought and though we are entitled to consider the question of want of notice and to remand the suit for getting findings on the facts relating to that question after, if necessary, allowing plaintiff to amend his plaint, we do not think we are bound in second appeal to do more than decide whether the lower Appellate Court's decision was wrong in having been contrary to law, etc., or failed to determine an issue of law, etc., or vitiated by substantial error or defect in procedure (section 100 of the Civil Procedure Code), If the lower Appellate Court was not bound to take notice of a question not raised in the appeal memorandum presented to it, it cannot be said that its decision was vitiated by any errors in procedure or defect in determination of points which it was bound to have considered.
10. We do not think that, on the facts found in this case, our discretion should be exercised in favour of the question of want of notice being allowed to be raised and argued before us.
11. In the result, the second appeal is dismissed with costs. Three months' time from this day is allowed to the appellant for the removal of the superstructure.