This is an appeal by defendant in a suit in which the plaintiffs prayed for a declaration of their title to certain lands des­cribed in the schedule to the plaint and for re­covery of khas possession of the same. The plaintiffs' case was that they had purchased the lands from defendants 3 and 4. The suit was contested by defendant 1 who contended that prior to the purchase by the plaintiff-defendants 3 and 4 had agreed to sell to him the lands. He contended that he had paid the full purchase price, and that the plaintiffs' suit should be dismissed. The Court of first instance held that there was no such prior agreement and that the plaintiffs' title was established and he accord­ingly decreed the suit in full. Defendant 1 appealed. [2] The Court of appeal below also held that there was no such prior agreement and that the plaintiffs had acquired title to the lands by their purchase. The learned Judge in the Court of appeal below allowed defendant 1 to raise a question which had not been raised in the pleadings, namely, whether defendant 1 who as­serted that he was an adhiar under defendants 3 and 4 before the purchase by the plaintiffs and was, as such, a tenant, was liable to be evicted without due service of notice. The learned Spe­cial Subordinate Judge of the Court of appeal below held that he (defendant 1) was a tenant at sufferance and was not entitled to any notice to quit and that therefore no notice to quit was necessary. The learned Court of appeal below accordingly dismissed the appeal and confirmed the decree of the Court of first instance. [3] Defendant 1 has preferred this second appeal. The learned advocate for the appellant has conceded that in any view of the findings of fact he cannot challenge the plaintiffs' title to the lands in suit, nor can he now urge before us that the defendant appellant bad acquired any title by virtue of the alleged prior agreement to sell to him. The learned advocate did wish to contend that the appellant was a tenant origi­nally under defendants 3 and 4 and, as such, he was entitled to a notice to quit, and, as there was no such notice served upon him, plaintiffs respondents were not entitled to a decree for khas possession. The learned advocate did wish to contend that the appellant was a tenant origi­nally under defendants 3 and 4 and, as such, he was entitled to a notice to quit, and, as there was no such notice served upon him, plaintiffs respondents were not entitled to a decree for khas possession. It has been objected to by the learned advocate for the respondents that no case was made out in the pleadings either that the present appellant was a tenant or that any notice to quit was necessary. The written state­ment has been read over to us and we are satis­fied that this defence was not in fact taken in the Court of first instance. It is true that the Court of appeal below allowed the appellant in that Court to argue this point. In our opinion, he did so wrongly; but in any case the consequences are the same. Even on the pleadings and on the material on record, there is nothing to show that the present appellant was anything but an adhiar under defendants 3 and 4. It does not follow from this that he was, therefore, a tenant, and unless he was a tenant, he was not entitled to any notice to quit. In our opinion, the judgment and decision of the Court of appeal below is right and there is no ground for our interference. [4] We, therefore, order that this appeal be dismissed with costs. Appeal dismissed.