1. It was first argued that the 1st defendant alone is entitled to raise the plea that there was no notice to quit and as he did not appear in appeal, the Appellate Judge was wrong in dismissing the suit on that ground. But we find that the question was raised by the 1st defendant and formed the subject of an issue and though there was no decision on this point by the Court of first instance, it was necessary for the Appellate Court on appeal by the plaintiff to decide that question.
2. It is next argued that the first defendant denied the plaintiff's title and, therefore, was not entitled to notice. The 1st defendant was the 2nd defendant's tenant. Both the plaintiff and the 3rd defendant were simple mortgagees under the 2nd defendant and while a suit by the plaintiff to enforce his mortgage was pending, the 2nd defendant granted a usufructuary mortgage to the 3rd defendant to whom the 1st defendant attorned. The plaintiff became a purchaser in execution of his mortgage-decree. It is not contended that the attornment or payment of rent before his purchase was a denial of his landlord's title because the plaintiff was admittedly not then the landlord. Nor can the subsequent payment of rent under the lease to the 3rd defendant, admittedly valid at the time it was granted, be treated as such denial. The 1st defendant never denied his character as lessee nor did he set up the title of any person against his lessor or any person who may have acquired any title under his lessor. The only question was who was the representative of the lessor? We think, therefore, this contention also must be disallowed.
3. The next question is whether the plaintiff is not entitled to recover arrears of rent. If the plaintiff proves his title we do not see why a decree for rent should not be given to him in this suit. The lower Appellate Court has not decided the question whether he is so entitled. We must, therefore, ask the lower Appellate Court to return findings on issues Nos. 4 to 8 on the evidence on record.
4. The findings should be submitted in six weeks, and seven days will be allowed for filing objections.
5. After the return of the findings of the lower Appellate Court, the Court delivered the following
6. We accept the 'findings of the lower Appellate Court on the issues and dismiss the second appeals with costs.