M. P. MEHROTRA, J. This second appeal arised out of a suit for the defendants eviction on the ground that the latters tenancy in the suit accommodation, was determined by the plaintiff-landlord and after such determination the defendants were liable to be evicted from the said accommodation. The plaintiff also claimed arrears of rent and damages for illegal use and occupation etc. The brief facts are these: "the plaintiff claimed to be the Karta of his joint family. House No. 261/262, Sadar Bazar, Allahabad, was claimed to belong to the joint family. The defendants were alleged to be the tenants on a monthly rent of Rs. 15/ -. It was alleged that the tenants did not pay the arrears of rent due from them for the period from August, 1961, to September, 1963. After adjustment of two months rent towards repair, a net sum of Rs. 360/- was thus due from them to the plaintiff as arrears of rent for the said period. By a notice dated 3rd October, 1963, the plaintiff asked the defendants to pay the arrears and the tenancy was also determined. However, the defen dants neither paid the arrears of rent nor did they vacate the suit accommodation in their tenancy. Hence the suit. " The defendants contested the suit. Their contention was that the house was originally taken on rent by their brother Nebhan Das from Banwari Lal the father of the plaintiff. Both of them subsequently-died. The defendants continued to reside in the house as tenants there of. On Banwari Lals death, one Prag Das who happened to be a cousin of the plaintiff, approached the defendants alleging that there had been an agreement in the landlords family where under different co-sharers were allowed to manage and realise the rent of different houses allotted to the different co-sharers. Prag Das claimed that house no. 261/262 was allotted to him. Hence he was entitled to realise the rent of the same. On this representation, formerly Nebhan Das and thereafter the defendants used to pay the rent to Prag Das and such rent was paid up to September, 1963. The plaintiff never objected to the said payment of rent to Prag Das. The defendants further asserted that there was no joint family of the plaintiff and the plain- tiff was not the Karta of any joint family. The plaintiff never objected to the said payment of rent to Prag Das. The defendants further asserted that there was no joint family of the plaintiff and the plain- tiff was not the Karta of any joint family. There had been disruption and so the different co-owners became co-lessors of the property. Hence the plaintiff could not sue the defendants. The suit was said to be bad for non -joinder of necessary parties. The notice dated 3rd October, 1963, was said to be bad and illegal. The trial court framed the necessary issues and dismissed the suit. The plaintiff went up in appeal to the lower appellate court and the appeal was allowed and the case was remanded to the trial court for framing additional issues relating to the pleas of joint family and parti tion. The trial court thereafter framed the additional issues and after trial again dismissed the suit. The plaintiff again went in appeal to the lower appellate court but the same was dismissed. The plaintiff has now come up in the instant second appeal and in support therefore, I have heard his learned counsel Sri G. N. Kunzru. In opposition, Sri S. J. Hydern, learned counsel for the defendants-respondents, has made his submissions. Learned counsel for the plaintiff-appellant expressed a grievance that the lower appellate court did not give its findings on all the issues involved in the suit. He emphasised that the remand order passed earlier by the lower appellate court had become final and it was not open to the said court in the subsequent appeal to question earlier remand order. In terms of the said order, the trial court had framed additional issues and the lower appellate court could not take exception to the framing of such additional issues in compliance with the earlier remand order. In my opinion, the lower appellate court, despite the use of phraseology suggesting to the contrary, really never questioned the earlier remand order. Its point of view was that in a suit between landlord and tenant, if the existence of the said relationship is not proved, then the suit has to fail-forgetting for the time being that such suits can in certain circumstances be decreed on the basis of title vide Abdul Ghani v. Musammat Babni I. L. R. 25 Alld. 256 (F. B.) and Balmakimd v. Dalu I. L. R. 25 Alld. 498 (F. B. ). 256 (F. B.) and Balmakimd v. Dalu I. L. R. 25 Alld. 498 (F. B. ). Both the courts below have concurrently held that the plaintiffs allegation that a joint family was in existence of which he was the Karta was incorrect. The former joint family stood disrupted and as a result of such disruption, the house in question came to be owned by the members of the former joint family as co-owners and as tenants in common. It was, therefore, held that the plaintiff as one of the several co-owners could not sue the defendants for ejectment and for arrears of rent and damages. The trial court and the lower appellate court differed on the consequence of the rent being paid by the defendants to Prag Das. The trial court held that the defendants had paid rent up to September, 1963 to Prag Das and that discharged the tenants; liability up to the said period. It was for the plaintiff and the other landlords to settle their account. The lower appellate court, however, held that the rent should have been paid to the entire body of co-owners and "by paying rent to only one co-sharer, the defendants cannot absolve themselves of the liability. " I think that this controversy should not be decided in the instant appeal. A decision on this point should be given only when the entire body of co-owners is before the court. In the instant litigation, all the co-owners owing the property are not before the court and, there fore; this question will be left open. The lower appellate court also held that the notice dated 3rd October, 1963, was a bad one on the ground that "the tenancy in question was with respect to a manufactur ing concern and not for residential purposes and so one months notice was illegal. " It may be mentioned that this point was never canvassed before the trial court and no such point was raised by the defendants in their written statement. In my view, when a defendant does not ques tion the validity of a notice explicitly on the ground that he was entitled to a six months notice in view of the nature of his tenancy, then it is not open to a court at the appellate stage to allow the said question to be raised. In my view, when a defendant does not ques tion the validity of a notice explicitly on the ground that he was entitled to a six months notice in view of the nature of his tenancy, then it is not open to a court at the appellate stage to allow the said question to be raised. It is true that in the written statement, the notice was alleged to be bad and illegal but no ground for the said contention was set out. In para 18 of the written statement it was simply said that the notice is bad and illegal, in the eye of law and no suit can be filed on its basis. In such a situation, it was incumbent on the part of the trial court to have got the pleadings clarified under the provisions of order X Rule 1 C. P. C. However, the trial court failed to do so. From the judgment of the trial court, it seems that before the said court, the notice was contended to be bad on the ground that it was given by the plaintiff alone and not by the entire body of co-owners of the property. As the trial court had held that there was no joint family in existence on the material date and the plaintiff was not the Karta, therefore, the notice was necessarily a bad one as being not on behalf of the entire body of co-owners but only on behalf of one of such co-owners The second point on which the notice was held to be bad was that the rents were really not in arrears inasmuch as they had been paid to one of the co-owners, namely, Prag Das. From the judgment, therefore, it is clear that no point was raised before the trial court that the notice was bad on the ground that it had to be six months notice. The lower appellate court, however, gave a finding that Ext. 1 which was the lease deed by which the tenancy was alleged to be created in 1954 shows that the pre mises had been let out for running a flour mill etc. Therefore, it was held that it was a tenancy for manufacturing purposes and hence six months notice was required. 1 which was the lease deed by which the tenancy was alleged to be created in 1954 shows that the pre mises had been let out for running a flour mill etc. Therefore, it was held that it was a tenancy for manufacturing purposes and hence six months notice was required. In my view, the lower appellate court was not entitled to hold the notice to be bad on the said ground when the defendants had not questioned it on the said ground in their written statement and the parties had not gone to trial on the said question and the controversy was never raised before the trial court. Apart from the said consideration, I think that the lower appellate court was wrong in holding that a six months notice was required in the facts of the case. In para 1 of the plaint, it was alleged as follows:- "yeh ki muddai ka khandan mushtarka hai aur wuh apne khandan ka karta hai aur muddalehum uske makan no. 261/262 Sadar Bazar, Allahabad me beadaye keraya mubligh 15/- rupiya mahwar muqeem hai aur Kerayadari bar mah ke yakum tareekh ko shuru hoti hai. " The clear allegation in the said paragraph was that it was a monthly tenancy and the month of tenancy commenced from the first day of each English calendar mouth. In para 1 of the written statement, it was stated "that in para 1 of the plaint, occupying house nos. 261 and 262, Sadar Bazar at a monthly rent of Rs. 15/- and tenancy beginning from first is admitted. " It is obvious that the defendants admitted the plaintiffs case that it was a case of monthly tenancy which started on the first day of each English calendar month. This admission will be wholly inconsistent with a case of yearly tenancy, where six months notice is required. 15/- and tenancy beginning from first is admitted. " It is obvious that the defendants admitted the plaintiffs case that it was a case of monthly tenancy which started on the first day of each English calendar month. This admission will be wholly inconsistent with a case of yearly tenancy, where six months notice is required. Section 106 of the Transfer of Property Act lays down as under:- "in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee, by six months notice and a lease of immovable property for any other purpose shall be deemed to be d lease from month to month, terminable, on the part of either lessor or lessee, by thirty days notice. Every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. " In view of the aforesaid admission of the defendants in the written statement, it was not open to the court to come to a finding that it was a case of yearly tenancy requiring six months notice. Even if the tenancy be for manufacturing purposes, it is open to the parties to contract that the tenancy will be a monthly one. The presumption referred to in section 106 would come into play only when there is no contract to the contrary between the parties. In the instant case, when the defendants themselves were admitting in reply to the plaintiffs allegation that it was a case of monthly tenancy, then it should have been held that the-parties had entered into such a contract stipulating for a monthly tenancy and not for an yearly tenancy even though by the terms of the contract it was open to the lessee to carry on manufacturing activity also. More over, the interpretation of relevant document by the lower appellate court is not correct. More over, the interpretation of relevant document by the lower appellate court is not correct. In fact the said court has, by mistake, referred to Ext. 1 which is the lease deed dated 8th January, 1949, and not the Sarkhat of 1954. The document of 1954 is a lease deed dated 5-3- 1954 executed by both the lessor and the lessee. It is this document which the lower appellate court had in view but by mistake the said court men tioned Ext. 1. It is stated in this document that the lessee was for the time being running a four mill but it was open to him to use the tenanted accommodation for running an oil crusher or a fodder cutting machine or for running any other business. I shall hereafter consider the im plication of the said term but I may point out that in the opening part of the lease deed, it is clearly stated that the lessee was occupying the tenanted accommodation as a monthly tenant "bataur kirayedar mahana. " In view of this clear statement that the lease was a monthly one, it was not open to the lower appellate court to seek to consider the nature of the tenancy on the basis of the purpose or the user of the tenanted accom modation for manufacturing purposes or non-manufacturing purposes. Irrespective of whether the user was for manufacturing purpose or for other purpose, if the parties clearly agreed that the tenancy was to be a monthly one, there was no scope for invoking any presumption under Section 106 of the Transfer of Property Act because the Section itself opens with the words "in the absence of a contract or local law or usage to the contrary. " In view of what I have stated above, it is really not necessary for me to consider whether the tenanted accommodation was meant to be used for manufacturing purpose or for other purpose. However, as the lower appellate court has alluded to the said purpose on the basis of the recital in the lease deed and as the learned counsel for the parties have also addressed long arguments on this controversy, I shall briefly deal with the same. Sri Kunzru placed reliance on the following cases:- 1. Sati Prasanna v. Md. Fazel, A. I. R. 1952 Calcutta 320. 2. Sri Kunzru placed reliance on the following cases:- 1. Sati Prasanna v. Md. Fazel, A. I. R. 1952 Calcutta 320. 2. Benoy Kumar v. I. T. Commissioner, A. I. R. 1954 Calcutta 224. 3. L. A. Sounders v. Land Corporation of Bengal, A. I. R. 1955 Calcutta 169. Sri Hyder, on the other hand, placed reliance on the following cases: 1. Bhagwati v. Chandramaul, A. I. R. 1966 S. C. 135. 2. Allenbury Engineers v. S. R. K. Dalmia, A. I. R. 1973 S. C. 435. 3. Balwant Singh v. Murari Lal, A. I. R. 1965 Allahabad 187. 4. Behart Lal v. Smt. Chandrawati, A. I. R. 1966 Allahabad 541. 5. Umrao Mai v. Heera Lal, A. I. R. 1973 Rajasthan 337. 6. Narayanan Nair v. Kunhan Mannadiar, A. I. R. 1949 Madras127. 7. Niranjan Pal v. Chaitnya Lal, A. I. R. 1964 Patna 401. 8. Yeshwant v. Malchand, A. I. R. 1951 S. C. 16. 9. Firm Srinivas Ram v. Mahabir Prasad, A. I. R. 1951 S. C. 61 177. There are some other -cases to which also a reference may be made:- 1. L. F. Chanel v. Mst. Radha Rani, 1956 A. L. J. 625. 2. Radha Ballabh v. Bahora Ram Chand, 1955 A. L. J. 304. 3. Inder Singh v. Biashambhar Nath, A. I. R. 1952 Allahabad 634. 4. C. Mackartich v. Steurat & Co. , A. I. R. 1970 S. C. 839. In A. I. R. 1952 Cal. 320 it has been laid down as follows; "the word manufacturing in S. 106 should be given its com monly understood meaning which is neither the etymological mean ing nor the technical meaning as applied to mechanical industry or commerce. The popular concept is that there must be production of a new or a different article or the process must be such as con verts one kind of article into another. In this sense printing simpliciter is not necessarily manufacture. A lease or a tenancy must be by agreement between the landlord and the tenant and both the parties must know that the lease is for manufacturing purpose at the time of the grant. If that is not so then the nature of subsequent user of the premises by the tenant without agreement of the landlord will not convert such a lease into one for manufacturing purpose. If that is not so then the nature of subsequent user of the premises by the tenant without agreement of the landlord will not convert such a lease into one for manufacturing purpose. A lease for mixed or multiple purposes like dwelling purpose, for setting up a printing press and for ordinary business purposes is not a lease for manufacturing purpose within the meaning of S, 106 but is within the meaning of the words "any other purpose in that section. " In AIR 1954 Cal. 224 it was held that the preparation of sweet meats would not answer the test of manufacture for the purposes of section 106 of the Transfer of Property Act. In A. I. R. 1955 Cal. 169, following AIR 1952 Cal. 320 , it was held: "where the tenancy is for residential and manufacturing purposes as distinguished from manufacturing purposes these mixed and multiple purposes would take it outside the earlier clause and bring it within the later residuary clause, for any other purpose. " In A. I. R. 1973 S. C. 425 a question arose whether section 106 of the Transfer of Property Act is controlled by section 107 of the said Act which lays down that a lease from year to year can be made only by a registered instrument. The controversy was whether in view of the said provision it was possible in law to contemplate a valid yearly tenancy by oral agreement when the lease was for manufacturing pur poses. The Supreme Court has noticed the contention raised by Mr. Chhagla in these words: "according to him, if the appellant company can establish that that tenancy was for manufacturing purposes, the presumption laid down in section 106 of the Transfer of property Act, under which such tenancy has to be recorded as a tenancy from year to year terminable by a six months notice, and not by a months notice must apply. It is true, said he, that under section 107 of the Act a lease from year to year can be made only by a registered instrument, but that provision in no way controls the presumption laid down in section 106 under which once it is proved that the parties were under the position of a landlord and a tenant and the tenancy was for manufacturing purposes it has to be presumed to be one from year to year. According to him, the two sections are independent of each other, the one dealing with the user and notice, and the presumption arising from such user, and the other dealing with compulsory registration for a lease from year to year, or for a term exceeding one year. Mr. Tarkunde, appearing for the Corporation, on the other hand, disputed the construction of these two sections suggested by Mr. Chhagla. " The Supreme Court, however, left the said controversy undecided and based its decision on the ground that there was no element of manu facture where the land was used for keeping automobiles, jeeps etc. which were in the damaged condition and which were sold after some repairs. It was also laid down that the: "burden of proving that the lease was for manufacturing purposes, must for the purpose of section 106 lie on the party who claims it to be so. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. The expression manufacturing purpose" in section 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having applied any dictionary of its own for that expression. The word manufacture implies a charge, but a mere change in the material is not a manufacture. There must be such a transformation that a new and different article must emerge having a distinct name, or character or use. " In A. I. R. 1966 S. C. 735 it was emphasised that the relief to be granted to a party should be founded on the pleadings. However, even "if a plea is not specifically made and yet it is covered and by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. " In A. I. R. 1970 S. C. 839 it was emphasised that a point which was not raised in the written statement should not be subsequently allowed to be raised. A point was raised before the court that under sec. 106 before a lease could be treated as one for manufacturing purpose it was necessary that it had exclusively to be for the said purpose. A point was raised before the court that under sec. 106 before a lease could be treated as one for manufacturing purpose it was necessary that it had exclusively to be for the said purpose. The other side, however, contended that it was sufficient it the dominant purpose of the lease was for manufacturing purpose. Noticing these two rival contentions the Supreme Court observed: "but we do not propose in this case to express our concluded opinion regarding section 106 of the Transfer of Property Act. " In A. I. R. 1973 Rajasthan 337 a learned Judge of the said court held that fodder cutting machine which cuts stocks of fodder into pieces of smaller size does not result in any manufacture. However, when the grain is ground in flour that would be manufacture. Hence, running a four mill amount to a manufacturing activity. The learned Judge observed: "where the case was one of letting out the premises for a multiple purposes which could be manufacturing, residential or any other like the carrying on of a trade, and there was no exclusive purpose of manufacturing involved in the lease and the rent that was settled right from the beginning was the monthly rent, the lease could not be said to be one which falls under the first part of section 106. " In A. I. R. 1966 All. 541 it was laid down that when a lease was given for residential purpose but the - leased property was used for trade purposes, the lessor was not estopped from seeking an injunction preventing the tenant from running a flour mill in the demised premises. In A. I. R. 1965 All. 187 a learned Judge of this court held that section 106 is not subject to section 107 of the Transfer of Property Act. I have already stated above that the said controversy was not noticed by the Supreme Court in A. I. R. 1973 S. C. but was left undecided. In 1956 A. L. J. 625 a learned Judge of this court laid down as follows: "what a collateral purpose is cannot be precisely defined. It must vary with the circumstances of each case. In 1956 A. L. J. 625 a learned Judge of this court laid down as follows: "what a collateral purpose is cannot be precisely defined. It must vary with the circumstances of each case. Leases which were not registered but were required to be registered and were, therefore, inadmissible for a purpose other than a collateral one have been looked at in reported cases in order to ascertain the nature of possession of the tenant, the date from which the tenancy began and for determining the period of tenancy and for finding out what the rent reserved was. Where the tenant is holding over and is a tenant under Sec. 116 of the T. P. Act by virtue of the fact that the land lord has received rent from him and he is not a tenant directly under the lease because the period of lease has expired, in such circum stances, the term of the expired lease which provides, that the tenant can be ejected on one months notice can be looked a because looking at that term in connection with the holding over would be look ing at the lease for merely a collateral purpose the collateral purpose being to find out whether it is to be one months notice or a six months notice to quit to determine the holding over. " In 1955 A. L. J. 304 it was laid down as follows: "renewal of a lease from year to year or from month to month, according to the purpose for which the property is leased, is to be presumed only when there is no "agreement to the contrary. " The agreement referred to in Sec. 116 may be an agreement after deter mination of the original lease or it may be in the original lease itself. Where in the original lease itself which was for a manufac turing purpose the agreement was that the rent was to be paid every month and the period of the lease was elevan months, there was an agreement to the contrary and it could not be held that by holding over the lessee acquired greater rights than what he possessed under the original lease. By holding over the lessees tenancy never became a tenancy from year to year but remained a tenancy from month to month and fifteen days notice was sufficient to terminate the lease. By holding over the lessees tenancy never became a tenancy from year to year but remained a tenancy from month to month and fifteen days notice was sufficient to terminate the lease. " In A. I. R. 1952 All. 634 Verma, J. laid down as follows: "when a person holds over, after an unregistered lease pf a shop for a manufacturing purpose for one year, which fixed only monthly rent, the holding over cannot be from year to year as that would amount to negativing the provisions of section 107. The tenancy must be held to be from month to month, so far as the period of holding over is concerned. " In my opinion, A. I. R. 1964 Patna 401 is not relevant to the present controversy. In A. I. R. 1951 S. C. 16 it has been laid down that a question of law can be raised for the first time in the final court of appeal even though it has not been raised in the courts below and there is no ground in the grounds of appeal relating to such a question. In A. I. R. 1949 Mad. 127 also this principle was emphasised, namely, that a question of law going to the root of the case can be raised for the first time in an appeal even though it has not been raised in the courts below. It seems to me that while the Supreme Court has left undecided the question whether under section 106 of the Transfer of Property Act a lease for manufacturing purpose must not be exclusively for the said purpose, there can be no doubt that at least the dominant purpose must be a manufacturing one. When it is a case of multiple purposes, which are agreed to in the lease deed then it cannot be said that the dominant purpose of the lease is manufacture. The mere fact that subsequently the lessee concentrates on manufacture does not mean that the initial agreement contained in the lease deed stands replaced by a subsequent agreement confining the purpose of the lease of manufacture only. Whether in the circumstances of a case, there has been a modification of the original contract will depend on the circumstances and facts of the case. Whether in the circumstances of a case, there has been a modification of the original contract will depend on the circumstances and facts of the case. But when the initial lease is for multiple purpose the mere fact that the lessee concentrates on one purpose cannot per se be a ground for inferring that there has been a subsequent modification of the original agreement between the parties. It is open to a lessee to concentrate on one purpose at time without giving up his option to use the demised 59 premise for other purpose as and then it suits him to do so. In the facts of the instant case, there is no question of a modification of the original terms of the lease by subsequent conduct of the parties. No such plea was raised in the pleadings and I do not think that such a contention can be allowed to be raised. In fact, it has not been raised before me. Now the explicit term in the lease deed dated 5th March, 1954 (Ex. 2) is that even though the tenant is for the time being running a Sour mill it is open to him to use the tenanted accommodation for running an oil crusher or a fodder cutting machine or for any other purpose. In this view of the matter, it has to be held that it was open to the tenant at his option to utilise the tenanted accommodation either for manufacturing purpose or for business or for residential purpose. All the three options were open to him and the fact that manufacturing activity was being done could not lead to the inference that was the dominant purpose of the lease. There was no dominance of one purpose over another and from time to time it was open to the tenant to utilise the demised premises for different purposes. In such a situa tion it cannot be said that the dominant intention of the lease was for manufacturing purpose and in this view of the matter the former part of section 106 did not apply and the lease would be governed by the latter part of the said provision. Therefore, one months notice was sufficient to determine the tenancy in the instant case. Therefore, one months notice was sufficient to determine the tenancy in the instant case. So far as the finding of both the courts below about the non-existence of a joint family is concerned, I do not think that the appel lant can question the same in the facts and evidence of this case. There is a concurrent finding giving by both the courts below that the joint family stood disrupted and the property came to be owned by the co-parceners as co-owners of the property and as tenants in common. It is not necessary to advert to the evidence which has been examined by the courts below in arriving at the said finding. It has not been suggested that the courts below have disregarded or overlooked any important piece of evidence, documentary or oral on this controversy. When there was no joint family in existence there could be no karta and the plaintiffs claim that he was a karta of the joint family stood rejected by the fact that the existence of the joint family was itself disproved. In such a situation, the courts have rightly held that the notice given by the plaintiff alone seeking to terminate the tenancy was invalid. The plaintiff was only one of the co-owners of the property and the tenancy could not be determined by one co-owner alone, particularly when it was claimed that he was giving the notice on behalf of a non existent joint family. Similarly, a suit could not be brought for the eviction of the tenant by one co-owner alone. In this view of the matter, the courts below have rightly dismissed the plaintiffs suit. This appeal lacks merit and is hereby dismissed with costs. .