1. In this cape the Secretary of State and the three persons who purchased the lands which were the subject-matter of Second Appeal No. 1025 of 1921, in which judgment has just now been delivered are the plaintiffs. They sue to receiver possession of the lands from the defendant on the ground that the defendant's lease had been terminated by a proper notice to quit and they are entitled to possession. The decree was asked to be given in favour of plaintiffs Nos. 2 to 4. The lower Courts, have granted the decree asked for and the defendant appeals.
2. It is contended on his behalf that his tenancy has not been properly terminated by a proper notice to quit and that, therefore, he was not bound to surrender possession. The argument is that the notices as issued by the Government, Exhibits O and P, were not issued by the party entitled to issue notices, as by the time they were issued, the Government had parted with all its rights to plaintiffs Nos.2 to 4 and they were the proper parties to issue notices; it is argued that notices should consequently be held to be bad. Before considering this matter, it must be observed that in the plaint an allegation was made that notices--(Exhibits O and P) dated 14th December 1916 and 21st February 1917 were given by the Government to the defendant and that, as the time fixed under them had expired, the defendant's tenancy had been, properly terminated before suit. The defendant raised no objection to this averment in his Written statement and no issue was framed as to the sufficiency or the validity of the notices. In the appeal memo, in the lower Appellate Court, the point was, however, taken and the affidavit filed by the learned Vakil for the appellant in that Court says that the point was argued before the Subordinate Judge, but no notice Was taken by the Subordinate Judge of this contention possibly because the point had not been raised in the Court of first instance.
3. The first question then which arises for decision is whether it is open to the defendant now in second appeal to insist upon the point being raised and considered. He has relied upon two cases reported in Abdullah Rawutan v. Subbarayyar 2 M,P 346 : 3 Ind. Jur. 160 : 1 Ind. Dec. (N.B.) 511 and Subba v. Nagappa 12 M.P 353 : 13 Ind. Jur.256 : 4 Ind.Dec. (N.S.) 595 in which questions of notice were allowed to be taken in second appeal when they were not taken in the lower Courts but these decisions were subsequently considered by this Court in several cases which have been brought to my notice and the view taken in the later cases is that though it is open to the Court, to allow such a point to be taken in second appeal, it is not bound to do so; and it seems to me that ordinarily it should not allow it to be taken, because if a point like that is allowed in second appeal, when it was not taken in the First Court, the result will be that the plaintiff will be prejudiced as he would lose the advantage of withdrawing his suit, when he finds that his notice was not a proper notice, and of bringing a fresh suit at once after giving a proper notice. The authorities cited for the respondents are L.P.A. 102 of 1913, Armugam, Pillai, In re 15 Ind. Cas. 584 Muthu Reddi v. Muthu Venkatapathi Reddi : (1916)31MLJ354 Venkatappier v. Ramaswami Aiyar 52 Ind. Cas. 517 : 10 L.W. 137; (1919) M.W.N. 548 and Kunhu Kuttan Nair v. Govindan Nambuduri 62 Ind. Cas. 390 : 13 L.W. 397 . In all these cases, it was held that the point should not be allowed to be raised for the first time in second appeal. No doubt, as Mr. Menon points out, in the cases of Venkatappier v. Ramaswami Aiyar 52 Ind. Cas. 517 : 10 L.W. 137; (1919) M.W.N. 548 and Kunhu Kuttan Nair v. Govindan Nambuduri 62 Ind. Cas. 390 : 13 L.W. 397 some point was made of the fact that the question was not raised even in the lower Appellate Court, but I do not think there is any valid distinction, between a case where the point is taken in the lower Appellate Court, but not in the Court of first instance and a case where the point is taken in neither of the lower Courts. If the point is to be treated as a necessary part of the allegation by the plaintiff (the landlord) which he should prove to obtain a decree in ejectment, it would not matter whether it was not taken in the First Court or in both the lower Courts, but that view has not been adopted and I consider that the proper view is that, when the point is not taken in the lower Courts, it should not be allowed to be taken in second appeal. In this ease, so far as the property, for which patta has been given to plaintiffs Nos. 2 and 4 is concerned, proper notice was given to the defendant by the Government before the pattas were issued to those plaintiffs. It is clear, therefore, that the principle relied upon by Mr. Menon that, when a landlord parts with the right of possession of his property to a third party by either mortgaging or by selling away the property, he has no longer any right to give notice to quit as the proper person to give the notice is the transferee as held in Wordsley Brewery Co. v. Halford (1904) 90 L.T. 89, will not apply, for the English cases recognise that the person who is the landlord and entitled to possession on the date of the notice to quit is the proper person to give the notice and that an assignee within the currency of that notice can take advantage of the notice sent by his assignor and rely upon it when he brings a suit for recovering possession. As regards the third plaintiff it may be that there is some difficulty as the notice regarding his land seems to have been issued after the patta was granted to him. It is, however, very doubtful whether the principle laid down in Wordsley Brewery Co., v. Halford (1904) 90 L.T. 89 will apply to this case. That was a case where the owner of a certain property at first gave an oral lease to the defendant and subsequently during the continuance of the tenancy granted to the plaintiffs as period lease of 14 years; After granting this lease a notice to quit in writing addressed to the first tenant signed by the husband of the owner of the premises as her agent to deliver possession of the property was served upon the tenant. The question then was; whether that was a proper notice to quit and their Lordships no doubt held that it was not a proper notice, but their reasoning was as follows. They held that, as soon as the second lease was granted, it took effect at once, that the grant of the lease 'passed the reversion and not merely the attornment', and that, therefore, the grantor had no longer any right of possession and could not exercise the right, of giving notice to quit to terminate the tenancy. The argument turned upon the question whether the granting of the period lease amounted to the passing of the reversion or not, and their Lordships say after discussing about some authorities 'it is said that some authorities are inconsistent with that view, that is, the view that it did pass and to some extent they may be, but even if that is so, we have to choose between them all. We must hold that the reversion passed'. In the present case the Government granted pattas to the plaintiffs. If there was an arrangement, as suggested by the Government Pleader, between the Government and the plaintiffs that the Government's right to recover possession was to continue and that they should get possession from the tenant and hand it over to the pattadars, the right to possession for the limited purpose will still remain in the Government, though pattas may have been granted. If this is so, I do not see why the Government is not the proper authority to issue the notice to quit.
4. The point as to notice has not been tried; it was not taken in the First Court and to allow it to be taken now will involve a fresh trial on facts. I do not think I am bound to allow such a point to be taken in second appeal.
5. The second appeal fails and is dismissed with costs one set.