JUDGMENT
Chaudhary Sia Saran Sinha, J.
1. This second appeal at the instance of the defendant is directed against a judgment of affirmance.
2. The plaintiff’s case was that he inducted Abdul Sayed, father of Bazrul Haque, the defendant, as a tenant in the disputed premises bearing holding No. 26 of Ward No. 6 of Purnea Municipality on a monthly rental of Rs. 20/- Abdul Sayed, undisputedly, died sometime in the year 1969 and his son, the defendant continued in possession of the demised
premises as before. The defendant defaulted in payment of rent for the period from February, 1968 to March, 1969 and made himself liable for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, hereinafter referred to as ‘the Act’. The plaintiff, therefore, instituted the suit against the defendant for eviction and arrears of rent.
3. The defendant contested the suit. He admitted that he was in occupation of the demised premises but pleaded that after the death of his father, there was a special oral agreement between the plaintiff and him that the defendant shall pay rent, settled earlier, namely, a sum of Rs. 20/-, according to his accommodation and the plaintiff agreed that the defendant shall repair the radio and also sew the clothes of the plaintiff and the charges thereof shall be adjusted towards the monthly rental of Rs. 20/-. The defendant also contested the suit on the ground of non-service of notice under Section 106 of the T. P. Act which, according to him, did not terminate the tenancy.
4. The trial court accepted the case of the plaintiff in toto and decreed the plaintiff’s suit for eviction as also for arrears of rent. The defendant carried the matter in appeal but was unsuccessful, the appellate court having dismissed the appeal after agreeing with the findings of the trial court. It is in these circumstances that the defendant has now taken up this matter before this court in second appeal.
5. The only substantial question of law formulated by the learned single Judge of this court while admitting this second appeal was whether on the pleading of the parties, the courts were bound to frame and decade an issue as to whether any relationship of landlord and tenant was constituted between the defendant-appellant and the plaintiff-respondent (landlord) when admittedly the tenant was the lather of the appellant and not the appellant himself. Shri R.S. Chatterjee pressed this substantial question of law which was resisted by the learned counsel for the respondent.
6. The contention of Shri R.S. Chatterjee is devoid of any merit and it must fail. It is undisputed that the respondent let out the demised premises to the father of the defendant who died sometime in 1969 and on the own showing of
the defendant he continued in occupation of the demised premises after the death of his father as a result of an oral agreement agreeing to pay the original rental of Rs. 20/- but according to his accommodation and, further, that the rental payable would be adjusted towards the radio repair and clothes sewing charges payable by the plaintiff to the defendant. Thus, the position about existence of relationship of landlord and the tenant between the plaintiff and defendant was admitted in the written statement. Consequently no issue was framed nor any evidence was adduced by the parties regarding non-existence of relationship of landlord and the tenant. The position remained the same even in the lower appellate court as Shri R.S. Chatterjee frankly conceded that no such plea was raised before the filing of this second appeal. This substantial question of law is a mixed question of law and facts and needs determination of certain facts on appropriate materials. In view of the stand taken by the defendant so far, no occasion arose for determination of the relevant factual aspect and obviously there is no material on record be-fore this court to determine such facts. In such a situation the appellant cannot competently raise this point for the first time in second appeal and the contention of Shri R.S. Chatterjee must fail on this score alone.
7. Assuming, however, for the sake of argument, that the substantial question of law does not involve any determination of facts, the question would arise whether the defendant can be deemed to be a tenant under the plaintiff. The only submission of Shri R.S. Chatterjee was that, according to Section 107 of the Transfer of Property Act (T. P. Act) all other leases of immovable property not covered by the earlier provisions of that section may be made either by a registered instrument or by oral agreement accompanied by delivery of possession, There was indeed an oral agreement, as alleged in the written statement. The submission of Shri R.S. Chatterjee, however, was that since there was no delivery of possession, the defendant having continued in possession of the premises as the son of his father no rightful tenancy between the plaintiff and the defendant can spring up and that being so the plaintiff’s suit was bound to fail. I do not consider it necessary to decide in this case as to whether the provisions of the Transfer of Property
Act shall apply to leases contemplated under the Act, abovementioned, Assuming that the provisions apply though, as we are aware, their Lordships of the Supreme Court held in AIR 1979 SC 1745 (V. Dhanapal Chettiar v. Yesodai Ammal) that no notice under Section 106 of the T. P. Act is necessary for determination of the tenancy under the Act, the contention of Shri Chatterjee is bound to be negatived on the own assertions of the defendants made in the written statement. The assertion was, as it may be repeated, that, after the death of his father, there was an oral agreement between the defendant and the plaintiff settling the terms of the tenancy in the way stated above, and it was only by virtue of that agreement that the defendant continued in possession of the premises. Thus, the pith and substance of the assertions made by the defendant in the written statement was that the defendant remained in possession of the demised premises after the death of his father only as a consequence of the oral agreement and thus continuance of his possession over the demised premises as a result of the said oral agreement can well be regarded in law as delivery of possession having the effect of symbolic delivery of possession and thus the requirements, contemplated in Section 107 of the T. P. Act, stand well satisfied.
8. No other point having been raised by Shri R.S. Chatterjee, the appeal is bound to fail. The result is that it fails and is dismissed with costs. The judgment and decree of the lower appellate court are hereby confirmed.