JUDGMENT Hari Swarup, J.
1. This is defendant's appeal arising out of a suit for the ejectment of the defendant from the house in dispute and for possession over the same and for a sum of Rs. 180/- as damages for use and occupation. The plaintiff's case was that he was the owner of the house and had let out the premises to the defendant on a monthly rent of Rs. 5/-. Plaintiff served on him a notice to quit on 25-10-1959. The defendant instead of vacating the premises denied the plaintiff's title and claimed title in himself. The plaintiff therefore filed the present suit. The defence was that the house had been given to the defendant twenty-
eight years back by Palakdhari Singh the original owner of the house from whom the plaintiff claimed to have purchased it on 20-7-1949. He also claimed to have acquired title under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act on the ground that he was holding the house and had spent considerable amount in re-constructing the same,
2. The plaintiff could not produce the original sale deed and the trial Court did not admit the secondary evidence of the same produced in the form of a certified copy and accordingly held that the plaintiff had failed to prove his title. The suit was also held to be barred by limitation. On appeal filed by the plaintiff the learned Additional Civil Judge held that the loss of the original sale deed had been sufficiently proved and the certified copy was admissible in evidence. On the basis of the sale deed he held that the plaintiff was the owner of the house. The appellate Court, however, negatived the contention of the plaintiff that the house was let out to the defendant as alleged. But on the finding that the defendant had failed to prove title or possession for more than 12 years prior to the date of the suit, held that he was not entitled to resist the plaintiff's suit The lower appellate court has disbelieved the defendant's case that he had taken the house from Palakdhari about 28 years back. It also disbelieved the defendant's case that he had re-constructed the house. The appellate court with regard to damages held that the plaintiff was entitled to get compensation at the rate of Rs. 2/- per month and not at the rate of Rs. 5/- as claimed by him. On these findings the appellate court allowed the appeal and decreed the plaintiff's suit for ejectment of the defendant and for recovery of Rs. 71/75.
3. Aggrieved by the decree the defendant has come up in Second Appeal. Learned counsel for the appellant contended that the suit was based on forfeiture of lease and as notice requiring the defendant to vacate under Section 111(g) of the Transfer of Property Act had not been given, the suit was liable to be dismissed. The contention has no force. A reading of the plaint shows that the suit was based not on the forfeiture of lease but on the ground that the house was occupied by the defendant as a trespasser. Plaintiff had alleged that the defendant was the tenant and the tenancy had been terminated by a notice under Section 106 of the Transfer of Property Act, but as in reply to the notice the defendant had denied the plaintiff's title, he filed the suit on the basis of title and not on the basis of the contract of tenancy. In paragraph 9 of the plaint the plaintiff valued the suit according to the market value of the house and paid ad valorem court fees as is payable on a plaint in a suit based on title by the owner of property against a trespasser. He did not claim relief in the suit, on the basis of his right under Section 108(q) of the Transfer of Property Act Section 111(g) only says that a lease is terminable by forfeiture. Sub-section (h) of Section 108 makes a lease terminable on a notice to quit. A right to possession on termination of tenancy comes by virtue of Section 108(q) of the Transfer of Property Act. If a plaintiff seeks to enforce that right, it would be a suit between a landlord and a tenant and the plaintiff will have to establish the jural relationship of landlord and tenant But it is open to the plaintiff to give up his right under Section 108(q) of the Transfer of Property Act and accepting, for purposes of the suit, the tenant's denial of the contract of tenancy, to claim the ejectment of the defendant on the ground that he is a trespasser. In such a case, it is not incumbent on the plaintiff to prove the relationship of landlord and tenant and he can succeed simply by proving his title, provided the defendant fails to prove any right to hold the property. The suit not being based on the right to re-enter by reason of forfeiture, cannot be said to be bad because notice required by Section 111(g) of the Transfer of Property Act was not given.
4. Learned counsel then contended that the plaintiff had not proved his title to the property and that the court was in error in holding that the defendant had not acquired title under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. Here too, the learned counsel is not correct. The lower appellate court has considered the oral and documentary evidence produced in the case and believing the plaintiff's evidence and the admission of the defendant in the documentary evidence, recorded a finding that the plaintiff had come into possession in July 1949 and the defendant had come in possession only in 1956. This finding is based on an appreciation of evidence and nothing has been shown as to how it is vitiated in law. On this finding it would be the plaintiff and not the defendant who will get rights in the property under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act
5. The contention that the court below committed an error of law in admitting the certified copy of the sale deed in evidence is also not correct. Section 65(e) of the Evidence Act provides that secondary evidence may be given of the existence, or contents of a document when the original has been destroyed or lost, or when the party offering evidence of the contents of the document cannot, for any reason, not arising from his own default or neglect, produce it in reasonable time. The lower appellate court, disagreeing with the finding of the trial court, held that the plaintiff's evidence was sufficient to prove that the sale deed had been lost and the plaintiff was unable to produce the original in the case. The learned Judge specifically believed the evidence of the plaintiff on this point and held that the loss was fully explained and established. This is a finding of fact. Learned counsel contended that the finding cannot be reached on the basis of the statement of the plaintiff which the court below has believed. But this only amounts to saying that there is not sufficient evidence for the finding. It is not open in the second appeal to set aside a finding arrived at by the court below on the basis of insufficiency of evidence. The statement of the plaintiff in this behalf is to the effect:--
'Asal Bainama Kya Huwa Pata Nahi, Ushke Sambandh Me Koi Ittala Ya Report Nahi Kiya 4-5 Saal Huwa Tab Pata Laga Ki Bainama Gayeb Hai. Kaha Rakhkha Tha Khyal Nahi."
Interpreting these words the court below held that loss had been proved. It cannot be said that the finding is based on no evidence. Learned Counsel for the appellant in support of his contention that the inference drawn by the court below is erroneous relied on the case of Bobba Suramma v. Smt. Chandramma, AIR 1959 Andh Pra 568. In that case, however, the court had found that the person seeking to prove the loss had never seen the document and could not, therefore, testify to the existence of the document. The actual words are -- 'He was only told by someone that he had seen it. How then could he prove its loss, the existence of which he had no knowledge? Moreover he does not definitely speak of the loss of the document. All that he stated was that it was not found by him and therefore it seemed to have been lost....." The case thus turned on the finding that the knowledge of the deponent was not such which could make him in a position to testify about the loss. The case is thus distinguishable from the present case. In the circumstances of the present case the court below cannot be taken to have committed any error of law in admitting the certified copy of the sale deed in evidence and relying thereon for its finding regarding title of the plaintiff.
6. No other point has been pressed. As the decree of the court below has not been shown to be contrary to law, the appeal is dismissed, but as the plaintiff's case about prior relationship of landlord and tenant was found not proved, the parties are directed to bear their own costs in the appeal.