J. M. Srivastava, J.-'This plaintiff's appeal is directed against the judgment and decree dated 22. 12. 77 passed by the learned District Judge, Jorhat, whereby the suit was partly decreed for declaration of title to the second house but the suit for ejectment of the defendant was dismissed. The defendant respondent has filed cross-objection, against the declaration of plaintiff's title to the second house. 2. The plaintiff appellant, hereafter the plaintiff had filed suit for declaration of title to the second house, for recovery of possession of both the first and second house, arrears of rent and compensation. The plaintiff's case was that he was the owner of the house building as described in the Schedule with the plaint. The respondent, hereafter the 'defendant' had agreed to take the said building on rent of Rs. 350/-per month and had paid an advance of Rs 4200/-on J. 1. 56. The said building then was in unfinished state and the stipulation was that the tenancy would commence from the date the defendant occupied it. The building was completed and the defendant occupied it on 1.2.56 when the tenancy -Commenced. This is referred as the first house. The plaintiff constructed another two storeyed building referred as the second house on laud adjacent and on the back side of the first house and rented it to the defendant. Since the plaintiff was short of money a loan of Rs. 17,700/-was taken from the defendant, by execution of several promissory notes, in the defendants or in the name of his brother one Ratan Prakash Sharma. The second house was completed in August, 1960. The defendant occupied the same on 1.9. CO and agreed to pay Rs 200/-per month as rent.. The advance of Rs 17,700/- for the second house was adjusted from the rent of the two houses. The plaintiff required the premises for his own business. The defendant stopped payment of rent of the first house from 1st. April 1965 and also stopped payment of rent for the second house from 16th February, 1965. The rent for the first house was due from 1st April, 1965 and the rent for the second house was due from 16th February 1965. The plaintiff made demands The defendant failed to pay rent. The plaintiff served registered notice dated 25th June, 1966 and terminated the tenancy from the midnight of 31st July, 1966. The rent for the first house was due from 1st April, 1965 and the rent for the second house was due from 16th February 1965. The plaintiff made demands The defendant failed to pay rent. The plaintiff served registered notice dated 25th June, 1966 and terminated the tenancy from the midnight of 31st July, 1966. The defendant did not vacate and also did not pay Rs. 9100/-arrears of rent till 31st July 1966. The defendant, in reply dt. 9th August 1966 to notice admitted that the rent of the first house was due from 1st April, 1965. but denied the plaintiff's title in respect of the second house and asserted that the defendant himself had constructed the said second house, that the defendant had deposited Rs. 5,600/-which was in arrear in respect of the first house till 31st July, 1966, in Court and contended that be had offered the rent but the plaintiff had not accepted the same. The plaintiff alleged that in view of the defendant's denial of title to the second house, the plaintiff had to file the suit for declaration of his title and for the aforesaid reliefs. 3. The defendant contested the suit on the grounds that the claim,, for ejectment from the second house was barred under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act XII of 1955), hereinafter the 'Act of 1955', that the tenancy of the front house commenced from 1st August, 1956, when the defendant occupied the same, after its completion as per contract of lease dated 3. 1. 56; that the second house had been constructed by the defendant. It was denied that the defendant was tenant in the second house. It was also denied that the plaintiff took loan of Rs. 17,700/-from the defendant by executing promissory notes and that the defendant took the hand notes in his or in the name of his brother Ratan Prakash Sharma. It was denied that the plaintiff required the first house for his own use. It was further contended that there was no fixed time and place for payment of rent and the plaintiff used to take it whenever needed. It was denied that the plaintiff required the first house for his own use. It was further contended that there was no fixed time and place for payment of rent and the plaintiff used to take it whenever needed. The defendant expected the plaintiff to come and take rent but the plaintiff served notice in June, 1966: The defendant had asked the plaintiff to accept rent for the period between 1.4.65 to 28.7.66 but as he refused to accept, the defendant duly deposited it in Court. There was no default on the part of the defendant to pay rent and no question of eviction of the defendant from the first house, therefore, could arise. 4. The learned trial Court framed the following issues : 1. Whether the plaintiff has any cause of action ? 2. Whether the suit is maintainable in the present form ? 3. Whether the suit is bad for mis-joinder of causes of action ?. 4. Whether the adjacent two storeyed house was constructed by the plaintiff and whether the plaintiff took Rs. 17/700/-from the defendant by executing promissory notes in favour of the plaintiff's brother, Ratan Prakash Sarma ? 5. Wherher the plaintiff requires the house for his own business ? 6. Whether the sum of Rs. 17,700/-advanced for the second-house was adjusted towards the rent of the two houses ? 7. Whether there is valid and sufficient notice ? 8. Whether the defendant is protected U/S 5 of the Assam Non- Agricultural Urban Areas Tenancy Act in respect of the second-house ? 9. Whether the defendant is a defaulter ? 10. Whether the defendant advanced a further sum of Rs. 6311/- for the construction of the second-house ? 11. Whether the plaintiff has right, title and interest over the second-house ? 12. To what relief or reliefs, the parties are entitled ? 13. Did the defendant make accounts of the advances made by him for the construction of the house and did be record account due from the plaintiff? 14. Is the plaintiff is entitled to arrears of rent and compensation ? The learned, trial Court held, that the defendant had constructed the second abuse, but for and on behalf of the plaintiff, and there was relationship of landlord and tenant in respect of the aforesaid house even though no rent was agreed upon. The defendant was protected U/S 5 of the Act of 1955. The learned, trial Court held, that the defendant had constructed the second abuse, but for and on behalf of the plaintiff, and there was relationship of landlord and tenant in respect of the aforesaid house even though no rent was agreed upon. The defendant was protected U/S 5 of the Act of 1955. It was further held that the defendant was not defaulter and was not Viable to ejectment from the premises in suit. The trial Court partly decreed the suit for declaration of title to the second house as stated earlier. 5. Aggrieved, plaintiff has come in appeal. Shri B M. Goswami, learned counsel .appearing on his behalf, has submitted that the defendant was not entitled to protection under section 5 of the Act of 1955 that the finding of the trial Court that the defendant had constructed the second house was erroneous and not sustainable from the evidence on record, that the defendant had admittedly not paid rent from 1.4.65 and the rent had not been paid as stipulated in section 5 (4) read with 5(l),e) of the Assam Urban Areas Rent Control Act, hereafter the Act and therefore, having committed default the defendant was liable to ejectment. The learned counsel for the appellant has, therefore, submitted that the plaintiff is entitled to the relief of ejectment. Shri P.G. Barua, learned counsel for the defendant on the other hand, in support of the cross-objection, has submitted that the findings of the trial Court that the defendant is not a defaulter and was not liable to ejectment an i that he is protected under section 5 of the Act of 1955 that the defend­ant had constructed the second house are correct, but the finding that the defendant had constructed the second house for and on behalf of the plaintiff is erroneous, and hence the plaintiff's suit for declaration of title to the second house was wrongly decreed and the plaintiff's entire suit should have been dismissed. 6. We have considered the submissions. for the parties and the evidence on record. The points for determination are firstly that whether the defendant was entitled to protection under section 5 of the Act of 1955 which also involves the question, whether the defendant had constructed the second house, and secondly that whether the defendant had committed default and was liable to ejectment. 7. for the parties and the evidence on record. The points for determination are firstly that whether the defendant was entitled to protection under section 5 of the Act of 1955 which also involves the question, whether the defendant had constructed the second house, and secondly that whether the defendant had committed default and was liable to ejectment. 7. It any be noted that in the Schedule to, the plaint, two houses are mentioned. The second house is described as one brick built two storeyed pucca house to the back of the front house. The two houses were, described as standing on 4 kathas 16 lechas of land of Holding No. 325 of Ward No. 1, Balibat. There is no dispute that the defendant has been tenant in the first house also described as front house. The dispute is in regard ,to title to the second house described as two storeyed pucca house to the back of the front house. Point No. 1: In so far as the first point is concerned, the pleadings of the parties, in particular the defendant's written statement, show that the premises were taken on rent by the defendant when only the front house was constructed. There was some land on its back side The second house was constructed on the said vacant land, Giridharilal Sharma, defendant, as DW 14 stated that he had entered agreement with the plaintiff relating to his land and house. It was a written agreement dated 3.1.56, executed in counterparts one by him and the other by the plaintiff. Ext. 7 was executed by him and given to plaintiff and Ext. A was executed by the plaintiff and given to him. He further stated that by the agreement he was let out a shop, house and a vacant plot of land behind the shop house, that he had constructed the pucca house behind the shop in the eastern part of the vacant land, that land was a part of the property leased to him in 1956. 9. While there is naturally slight variation in the language of Ext. 7 and Ext. A the substance of the transaction is the same. The agreement clearly shows that the tenancy created was for one premises with comprised of the house and some land appurtenant to it. 9. While there is naturally slight variation in the language of Ext. 7 and Ext. A the substance of the transaction is the same. The agreement clearly shows that the tenancy created was for one premises with comprised of the house and some land appurtenant to it. The defendant in his deposition asDW-14 categorically staled that it was just one lease, which means that there was no separate or different lease in respect of land. Its para 5 provided "when in addition to the aforesaid house I will require a house, I shall be able to construct with my own money a house or a shed in the land which is there in back side and you shall not raise any objection to that. On expiry of the term I shall dismantle the house or the shed at my own cost". The above stipulation in the agreement mani­festly shows that the lease created by Ext 7 was in respect of the house with land appurtenant to it on its back side and the defendant had been given the option to raise construction on the said land in case he needed it. 10 The defence plea is that the provisions of sections of the Act of 1955 protect the defendant in regard to the second house. It may be noted that the above plea means that in respect of one tenancy which was created by Ext. 7, so far as the first house is concerned the 'Act' applies 7 but for the land' "appurtenant to the said house, on which the second house was constructed the Act of 1955 shall apply. Section 2 of the said Act provides: "2. 7, so far as the first house is concerned the 'Act' applies 7 but for the land' "appurtenant to the said house, on which the second house was constructed the Act of 1955 shall apply. Section 2 of the said Act provides: "2. Application -Notwithstanding anything contained in any contract or in any law for the time being in force, the provisions of this Act, shall apply to all non-agricultural : '-' tenancies whether created before or after the date on which this Act comes into force : (i) Provided that the provisions of this Act shall not apply to:- (a) Government land held under an 'annual' or "short lease" as defined in the rules made under the Assam Land and Revenue Regulation, 1886 (Regulation 1 of 1886); or (b) land held by the Government of India or by any Local Authority or by the State Government, or (c) any hoHing which contains one or more buildings owned by the landlord and which has been let out to any person, or (d) land used for residence of the landlord or reserved for being used for such purpose in its vicinity and let out to persons or let out in lieu of service merely in consideration of relationship or affection." Under Section 3 (a) 'holding' means a parcel or parcels of land or an undivided share thereof, held by a tenant, and forming the subject-matter of one and the same tenancy; (b) 'land' means land which is let or occupied for residential or business purposes or for purposes incidental thereto, and includes sites for buildings, water, water-ways, drains, ditches, canals, tanks and wells appertaining to such land; (f) 'rent' means whatever is lawfully payable in money or in kind by a tenant to his landlord on account of the use and occupation of his holding under such landlord; (g) 'tenant' means a person who holds land under another person, other than Government and who is, but for a special contract liable to pay rent for that land to the latter, and includes a person who derives his title from a tenant, and a person who continues in possession of any land after termination of his tenancy in respect of that land." Under section 2(c) the provisions of this Act would not apply to any holding which contains building owned by the landlord and which has been let out. la the present case on the holding let out by Ext. 7 there was a house which was let out to the defendant and so the said Act would not apply. Section 5 of the Act of 1955 reads as under : "5 Protection from eviction.-(1) Notwithstanding anything in any contract or in any law for the time being in force (a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent: Provided that where a tenant having built a permanent stru­cture within the period specified above and for any of the purp­oses mentioned therein, renews the tenancy on expiration of the original contract, he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed contract. Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stands, shall not be ejected except on the ground of non-payment of rent. 11. A. consideration of the above provision shows that only when under the terms of contract the tenant raises construction on the land of the tenancy that it is attracted and the tenant becomes entitled to the protection thereunder. The provisions of section 5, in our opinion, would not be attracted in a case like the present, where the lease was for a house which also had some land appurtenant to it and on which, as agreed in the terms of lease between the parties, some construction had been raised. The provisions of section 5, in our opinion, would not be attracted in a case like the present, where the lease was for a house which also had some land appurtenant to it and on which, as agreed in the terms of lease between the parties, some construction had been raised. In our opinion, section 5 of the Act of 1955 would operate only when the tenant makes construction on land of tenancy,, i.e. the tenancy created is of 'land' and not otherwise. The defence plea is not tenable for contract of tenancy of house being one, it should not be considered or treated as spitted into one for the house and the other for land appurtenant to the house. We, therefore, hold that the finding of the learned trial Court to the contrary is erroneous and can not be sustained. The defendant, even if he made the construction was not entitled to any protection of, secrion 5 of the Act of 1955.; 12. Shri P.G.Barua, Jearned counsel for the defendant, has contended that the lease executed on 3.1.56 was not covered by the provisions of the Act because the earlier Act XIII of 1949 had expired rand ceased .to be in force from 1.10.55 and the new Act the Assam Act XII: of 1955 which replaced it commenced and came into force from 11.1.56 so that on 3.1.56 no provision of the said law was applicable and as such the present lease would not be covered by the provision of the Act. i.e. the Assam Urban Areas Tenancy Act but would be the provisions of the Transfer of Property Act. We think this contention does not have any material bearing on the facts of this case, for when the next Act came into force w.e.f. 11.l.56, its provisions applied to all tenancies within the area to which the Act. XII of 1955 extended. It is not disputed that the said Act applied to the premises in suit and so notwithstanding that the premises, were let out by lease dated 3.1.56, the provisions' of Act XII of 1955 would have applied to the tenancies. 13. The next, question is whether the defendant had constructed the second house ? The learned trial Court has held that the defendant had constructed the house but for the benefit of the plaintiff. 13. The next, question is whether the defendant had constructed the second house ? The learned trial Court has held that the defendant had constructed the house but for the benefit of the plaintiff. This finding is assailed by both the plaintiff arid the defendant and it may be noted that it is not the plaintiff's case that the defendant constructed the second house for and on his behalf. 14. The lease dated 3.1.56 stipulated that in case the defendant needed accommodation he could construct with his own money a house or shed in the land on the back-side which on the expiry of the term, he could dismantle at his own cost. The admitted facts of the case are that the defendant has been in occupation of the second house which was admittedly constructed after the commencement of the lease in respect of the first house, which ia itself shows that the defendant had needed some more accomm­odation. It is unlikely that the .plaintiff would have constructed another house for defendant's use and it is more likely that the defendant having needed more accommodation constructed the second house; as .had been agreed. 15. The land admittedly belongs to the plaintiff, .although it farmed parts of the premises which had been let out to the defendant. I he plaintiff's 'contention is that he had constructed t be second house for which he had taken money from the defendant and executed promissory notes. The plaintiff has produced Ext. 8 permission from the Municipal, 'Board for construction of house. Ext.8 does not mention the specification of the building. here is no plan of construction with it. The plaintiffs Statements that this permission was for the construction of the; second ho use, which had been accorded to him by the Municipal Board. The defendant has not produced any such permission to show that he had 'obtained permission, from the Municipal Board for construction of the house. There is no such case for the defendant that even though the plaintiff had taken permi­ssion for construction of the house the defendant had utilised the permission for construction of the house although it is also not very unlikely or improbable. However, the fact that 'plaintiff had obtained permission from the Municipal Board4is in favour of the plaintiff's case. 16 As PW 3 plaintiff deposed in support of his version that he had constructed the house. However, the fact that 'plaintiff had obtained permission from the Municipal Board4is in favour of the plaintiff's case. 16 As PW 3 plaintiff deposed in support of his version that he had constructed the house. PW 2 Bashan Stngh carpenter stated that he had constructed the two storeyed building 'for the plaintiff, and had fitted the doors, windows and C. I. sheets roof of the house. In cross-examination he stated that 2/3 years later he had fitted 'net' to the doors and windows to make them mosquito -proof and that the expenses had been paid by the defendant. He denied that money for doing aforesaid timber work had been paid to him by Giridharilal, defendant. He said he did not know if the plaintiff had worked under the defendant or that the plaintiff had taken any money from the defendant. The evidence of PW 2 Bashan Singh is not conclusive but it does appear that he had done work when the house in question was under construction. The fact that for making the house mosquito -proof the defendant had incurred expenditure is in favour of defence version but would not by itself be sufficient to show that the house itself had been constructed by the defendant. 17. The plaintiff's own statement is that he had constructed the house even though the defendant too had at times helped him to maintain attendance register and some accounts (Ext. 15). during the plaintiff's illness when he was admitted in hospital. PW-l Dr. A. Goldsmith had been examined to show that the plaintiff had been sick and admitted in the Jorhat Mission Hospital during some period. The defendant's version is that the attendance register (Ext. 15) had been maintained by the plaintiff who had been engaged as his employee and was paid Rs. 100/-per month to maintain the attendance re­gister for the construction of the house which was made by the defendant except for some period when the defendant himself had done so Ext. 15 however was produced by the plaintiff The defendant's explanation is that the plaintiff had taken it away. There is however no evidence to show that the defendant had asked the plaintiff to return the account book (Ext- 15) or had ever complained that it had been taken away by the plaintiff. 15 however was produced by the plaintiff The defendant's explanation is that the plaintiff had taken it away. There is however no evidence to show that the defendant had asked the plaintiff to return the account book (Ext- 15) or had ever complained that it had been taken away by the plaintiff. However if the defence version that plaintiff had been engaged for maintaining the attendance record, be true its having been with the plaintiff is not such cir­cumstance, as may go against the defence version, for after all it was just an Hazira register with some accounts which could have just remained with the plaintiff. Ext. 5 has some entries regarding expenditure incurred for the plaintiff when he was in the hospital and the contention for the defendant is that the said amount had been adjusted towards remuneration of the plaintiff as employee of the defendant for construction of the said house. The defe­ndant's explanation though not conclusive is reasonable for otherwise why should expenses paid by the defendant for treatment etc. of plain­tiff, while the plaintiff was in the hospital have been noted in Fxt. 15. 18. PW 4 it. C. Kataki, Head Assistant, Jorhat Municipal Board had been asked to bring the original application dated 18. 12. 59 made by the plaintiff to the Municipal Board for permission for construction of house. The permission was granted by order dated 20. 1.60. He said that Ext. 8 is the copy of order permitting the plaintiff to construct house. He, however, deposed that the original application and the orders were not available because the same were destroyed by white-ants. PW-5 Prabhat Chandra Bordoloi, Tax-Oaroga of Jorhat Municipal Board, deposed about the Valuation Form Ext. 31 and holding No. 446 in the name of the plaintiff. His evidence is to the effect that the plaintiff had paid tax for the holding No. 446. It was said that the second house was in holding No. 446. PW-5 Prabhat Chandra Bordoloi, Tax-Oaroga of Jorhat Municipal Board, deposed about the Valuation Form Ext. 31 and holding No. 446 in the name of the plaintiff. His evidence is to the effect that the plaintiff had paid tax for the holding No. 446. It was said that the second house was in holding No. 446. It may be noted that in the Schedule with the plaint, both the houses were stated to be in holding No. 326 The learned counsel for the defendant has argued that this evidence is of no use because it is not connected with the house in question, that in the plaint the plaintiff had said that the holding number of the two houses was 326' but now it is said the holding number of the second house is 446'. There is inconsistency in plaintiff's case and evidence in the holding number relating to the house, but the fact remains the land and the first house admittedly belong to the plaintiff and the ownership of the second house alone is in question and therefore in our opinion the difference in holding number does not render the plai­ntiff's version improbable or incorrect. All that may be said in the facts of the present case is that the holding number had not been properly ascertained before it was stated in the Schedule to the plaint. The evidence of PW-5 Prabhat Ghandra Bordoloi only shows that the house in holding No. 446 is in the name of the plaintiff in the Municipal records for which tax is paid by the plaintiff. Shri P. G. Barua, learned counsel for the defendant, has argued that the tax has been paid by the defendant and that during the pendency of this suit the plaintiff paid the tax, but there is nothing to show that the defendant has paid any tax of the house at any point of times and even if it be so, since the house stands in the name of the plaintiff mere payment of tax by the defendant/even if he did so, would not be evidence of ownership of the house. 19. On the other hand, the defendant examined DW-1 Nursing, a working partner of the N. K. Trading Company dealing in electrical goods, who deposed that he had sold certain electrical goods in the name of the defendant and proved the counter foil of a receipt Ext. 19. On the other hand, the defendant examined DW-1 Nursing, a working partner of the N. K. Trading Company dealing in electrical goods, who deposed that he had sold certain electrical goods in the name of the defendant and proved the counter foil of a receipt Ext. 1, and credit memo. DW-2 Kamal Singh Baid of a hardware store proved cash memo Ext. J for sale of some item. It is, however, not clear from his evidence who was the purchaser of the goods. DW-3 Ved Prakash Sarma, of another hardware store who sold goods by cash memo Ext. K(l) and K (2) also proved Exts L(l), L(2) and L(3) the cash roemos for goods purchased in cash. He also proved some other similar cash memos. DW-4 Kalipada Sharma Biswas, Inspector of Income.-tax who produced some papers relating to assessment of the defendant for the assessment year 1961-62 deposed the case was re­opened under section 148 of the Income Tax Act, as some income had escaped assessment. He further said that in Ext. R details of investment in dwelling house had been shown by the defendant which came to Rs. 16,700/-, which is the amount the case is was (sic) spent by the defendant on the construction of the house. Ext. S letter had with it site and building plan Ext. S/l and Ext. S/2. In Ext. Q details had been given of advance and payment of rent to Harishankar (the plaintiff) upto 31.3.69. The above evidence shows that the defendant had shown Rs 16700/-as invested in house and had also submitted a site and building plan. DW-5 Sudhir Chandra Paul undertook electric contract in the shop Ext. X his bill for Rs. 179/-. M/S Gaylord the shop in the front house was owned by the defendant. DW-6 Prabhudayal Damaui proved cer­tain cash memos for sale of 40 bags of cement in the name of Harishankar and 60 bags of cement in the name of the defendant. It is said that since one person could not get all the cement required it was purchased in the name of plaintiff DW-7 Narsingh Das of another hardware store sold some electrical goods, and proved cash memos Ext. Z(l) and Ext. Z (2)-Z(5) but the evidence only shows some electri­cal goods were purchased. DW-8 Manoharlal Bhardwaj, owner of a brick kiln deposed that the defendant used to take bricks from him. Z(l) and Ext. Z (2)-Z(5) but the evidence only shows some electri­cal goods were purchased. DW-8 Manoharlal Bhardwaj, owner of a brick kiln deposed that the defendant used to take bricks from him. His testimony is not of any substantial help. DW-9 Jassai Keot deposed that he had worked at the place of Giridharilal Sharma as a mason about 16/17. years ago In cross-examination he could not give any details of the neighbourhood of the building which he had constructed and admitted that he had not worked at Jorhat after that. DW 10 Ramkishore Agarwalla deposed that one Giridharilal Sharma had obtained a loan of Rs. 2700/ in 1960 and the amount had been returned in 3r4 instalments. D W 11 Biren iranath Thakur, Head Assistant in A.S.E B., Jorhat said to. it' on 11.8.56 \1/S Gay lord applied to put a sub meter in their name in the newly constructed house by Harishankar. His evidence relates to the first house for in 1956, the second house was not even in existence. DW 12 Panadhar Das, Tax Daroga of the Muni­cipal Board, Jorhat deposed that he was summoned to bring Demand Register, Rating list and Valuation Form of 1966 and he could not find Valuation Form as that had been sent to Government. His evidence is of no use. Similar is the statement of PW-13 Kanak Chand Bhattacharjee, an Office Assistant in the Municipal Board, Jorhat. His evidence, therefore, is of no help to the defendant. DW-14 is the defendant himself and he has deposed in support of his case, that he had constructed the house, and that the plaintiff had worked as his employee. According to the defendant he had spent Rs. 16.700/- for the construction of the house. According to the plaintiff, he had spent Rs. 17.700/- for the construction of the house. The plaintiff produced a number of promissory notes, which according to the plaintiff had been discharged by payment of the dues which are Exts. 8, 9,10,11, 12 and 13. According to the plaintiff the promissory notes had been executed by him as desired by the defendant either in the name of the defendant or in the name of his brother Ratan Prakash Sharma. 8, 9,10,11, 12 and 13. According to the plaintiff the promissory notes had been executed by him as desired by the defendant either in the name of the defendant or in the name of his brother Ratan Prakash Sharma. The defendant has denied this version and has said that he has nothing to do with the plaintiff's transaction with Ratan Prakash Sharma and that some of the promissory notes were in relation to the advance he had given for the construction of the first house. 20. We have considered the evidence for the parties. It is signifi­cant that the plaintiff has not produced any reliable evidence at all to show that the defendant after he occupied the second house had paid any rent of Rs. 200/-per month, as stated by the plaintiff The plain­tiff's solitary statement in support of his case is not considered reliable, because we consider it improbable that if the defendant had taken the second house also on rent no agreement, likes Ext. 7 for the first house, would have been executed or that there would have; been no writing at all for rent or any receipt for payment of rent as adjustment against loan. This fact that no rent was paid in our opinion strongly militates against the plaintiff's version but is consistent with the defence version. The facts that the laud belongs to the plaintiff, that he had obtained some permission for the construction of a house, that the plaintiff paid tax, that the holding stands in the name of the plaintiff in the municipal record, are not enough to dislodge the weight and import of the fact of non-payment of any rent and also the absence of any agreement in regard to the same for the second house which is in conformity with the defendant's version that since in pursuance of Ext. 7 the second house was made by the defendant for his own use and occupation, no fresh or further agreement was needed and so no fresh agreement was executed. We therefore believe the defendant's evidence and hold that the second house was constructed by the defendant, as has also been found by the trial Court. 7 the second house was made by the defendant for his own use and occupation, no fresh or further agreement was needed and so no fresh agreement was executed. We therefore believe the defendant's evidence and hold that the second house was constructed by the defendant, as has also been found by the trial Court. However, as regards the trial Court's further finding that the defen­dant had constructed the house for and on behalf and for the benefit of the plaintiff, Shri P. G. Barua for the respondent has assailed this find­ing and we think that part of the finding is not sound and correct, for the reason that it is neither the plaintiff's nor the defendant's case and hence it was not open to the learned trial Court to build up a third case. The finding of the trial Court therefore that the defendant had construc­ted the house as said before is correct but that it was constructed for and on behalf of the plaintiff is erroneous and should not be sustained. The result is that the declaration of right, title in respect of second house granted cannot be sustained and should be set aside. We hold accordingly. Point No. 2 The plaintiff's case is that the defendant had committed default in payment of rent and was liable to ejectment. On consideration of the evidence for the parties, we think that it could not be said that the defendant had committed default in payment of rent hence was not liable for ejectment. The premises except the second house comprised the tenancy. The defendant in pursuance of agreement Ext. 7 was bound to remove the second house whenever he was to vacate the premises under his tenancy, i. e. the first house with land appurtenant to it. In so far as the first house is concerned, admittedly rent was due from 1. 4. 65. The same was deposited in Court some time in July, 1966 after the plaintiff had served notice. Section 5 (i) (e) of the Act, reads as under : "5. In so far as the first house is concerned, admittedly rent was due from 1. 4. 65. The same was deposited in Court some time in July, 1966 after the plaintiff had served notice. Section 5 (i) (e) of the Act, reads as under : "5. Bar against passing and execution of decree and orders for ejection-(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy Provided that nothing in this sub section shall apply in a suit or proceedings for eviction of the tenant from the house:- (a) ......... (b) ......... (c) ......... (d) ......... (e) where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due." The above provision clearly means that before it can be said that the tenant had committed default, the landlord should prove firstly when the rent became payable and was due and secondly the tenant failed to pay the rent as stipulated in the above law within the specified period of a fortnight. In the present case; the plaintiff has just not proved when the said rent had fallen due. The defendant has produced receipts Ext. D which shows that on 22. 12.61 the annual rent from 1. 4. 60 to 31. 3. 61 had been paid after deduction of Rs. 717.44 P. from Rs. 4200/- which was the annual rent. Ext.E date 23. 3. 62 shows that Rs. 4200/- annual rent for the period 1. 4. 61 to 31 3. 62 had been paid, which means the rent was paid even before the expiry of the year on 31. 3. 62. Ext. Fdated 21. 1. 63 shows that annual rent of Rs. 4200/- had been paid for the period 1.4. 62 to 31. 3. 63 much before the expiry of the period on 31. 3. 63. Ext. G dated 25. 3. 64 shows that annual rent of Rs. 4200/-had been paid for the period 1. 4. 63 to "M. 3.64 again before the expiry of the period on 31. 3. 64. Ext. H shows that Rs 4200/- had been paid as rent for the period 1. 4.64 to 31.3.65. The date is, however not given. Ext. Ext. G dated 25. 3. 64 shows that annual rent of Rs. 4200/-had been paid for the period 1. 4. 63 to "M. 3.64 again before the expiry of the period on 31. 3. 64. Ext. H shows that Rs 4200/- had been paid as rent for the period 1. 4.64 to 31.3.65. The date is, however not given. Ext. H shows that last payment as for the period ending 31.3.65. which means that rent from 1. 4. 65 was due. The receipts clearly show that under some arrangement or agreement the rent was not payable monthly but annually. By Ext. D it was paid in the month of December, 1961 for the period ending 31. 3. 61. Exts. E and G show that the annual rent had been paid even prior to the expiry of the period. Ext. F shows that the amount was paid much earlier in January, and that Ext. H, although it does not give the date of payment also shows that the rent had been paid, for a year. While it may be said that in a case of monthly tenancy the rent would fall due on the expiry of the tenancy i. e. either on the last date of the tenancy or the next day following the end of the month, its payment is however subject to agreement or arrangement between the parties for it is upto them to have some arrangement as to when the landlord would take payment of rent due. The word 'due' in clause (e) of sub­section (1) of section 5 of the Act merely means «payable*. The land lord should in our opinion, establish when under the arrangement the rent was payable and it could be said to be due so that if not paid within a fortnight the tenant could be said to have committed default, for otherwise it would not be possible or atleast extremely difficult to determine as to when could it be said that the rent was due but had not been paid within a fortnight thereafter. The receipts above noted in the instant case clearly establish that the landlord used to accept rent in one lump-sum for the whole year whenever he needed in all probabilities under some arrangement. The receipts above noted in the instant case clearly establish that the landlord used to accept rent in one lump-sum for the whole year whenever he needed in all probabilities under some arrangement. It is clear that he had never insisted on payment of rent after the end of the month but received payment of rent for one year it appears whenever he wanted it. It may be noted that the plaintiff had not pleaded any specific date or time as to when the rent was payable. In his statement as PW-3 even though the plaintiff had said that it was not true that the defendant paid rent at any time and said that the agreement was that the defendant would pay rent monthly, the statement is shown to be clearly wrong in view of the above noted receipts which show that the rent every time had been paid and accepted for the whole year. The plaintiff himself also however later said in cross-examination that payment of rent was to be six monthly according to agreement. As a matter of fact he contradicts the above statement and said that "it is not a fact that I deposed in my examination-in-chief that the rent was to be paid monthly." There is no other evidence for the plaintiff on the question as 10 when the rent was to be paid, and therefore we think that the plaintiff has not proved that the rent was to be paid by any particular date or time and it appears that as is the defence version it was paid and accepted when­ever the plaintiff wanted. It cannot therefore be said that the plaintiff has established the first requirement of the provisions of section 5 (1) (e) read with sub-sect on 4 of section 5. Shri Goswami, learned counsel for the appellant, has argued that the receipts show the rent had. been paid even before the closure of the year i.e. 31st March and therefore it should be clear that the rent was payable immediately after the closure of thereat; We do not accept this argument firstly because it is a case of monthly tenancy secondly even the first receipt Ext. D shows that the rent had been paid for the whole year ending 31.3.61 sometimes in December, 1961 and thereafter the rent had been paid before 31St March of every year. D shows that the rent had been paid for the whole year ending 31.3.61 sometimes in December, 1961 and thereafter the rent had been paid before 31St March of every year. It shall not be reasonable to infer from the above that the rent was payable after the closure of the year because there was no such pleading for the plaintiff and, consequently there is no evidence in Support, to that effect. We, therefore, .cannot speculate about the date when the rent was due and payable. The defendant's case on the contrary clearly was that it was agreed between the parities that the plaintiff would take rent as and when he needed money and the fact that the plaintiff had been accepting rent, for the whole year at one time supports the defendants contention that the plaintiff took rent as and when he needed it. We therefore, think that it is not possible to take the view that the plaintiff has established by any satisfactory or reliable evidence that the rent had become due and was payable on a particular day and where after the defendant tenant not having paid it within a fortnight had committed default and was liable to ejectment under section 5 (i) (e) of the Act. The defendant had after receipt of the notice from the plaintiff deposited the rent in Court because the landlord had not accept the rent. The landlord later withdrew the amount deposited. The plaintiff had served notice dated 25.6.66 Ext. 22. The defendant had given reply dated 9th August, 1966 (Ext. 2j) wherein it was stated that the amount of rent had not been taken by the plaintiff landlord and when it was tendered on several occasions he refused to accept it and hence it was deposited in Court. Earlier, by notice dated 29. 7.66 (Ext. 24) the defendant had informed the landlord's counsel that the plaintiff having had refused to accept the rent the amount had been deposited in the Court of Munsiff at Jorhat. We are satisfied that on the facts of this case and on the evidence on record, it is not reasonable to accept that the plaintiff had established when the rent become due and was not paid within a fortnight. We therefore, hold that the defendant not having committed default, was not liable to ejectment. We are satisfied that on the facts of this case and on the evidence on record, it is not reasonable to accept that the plaintiff had established when the rent become due and was not paid within a fortnight. We therefore, hold that the defendant not having committed default, was not liable to ejectment. In view of the above findings, the defendant not being liable to ejectment, the plaintiff's suit for ejectment was rightly dismissed by the trial Court. ORDER The plaintiff's appeal fails and is dismissed. The defendant's cross objection is allowed, the judgment and decree of the trial Court for declaration that the plaintiff was the owner of the second house is set aside and the plaintiffs entire suit is dismissed. Parties shall bear their own costs throughout. A Raghuvir, CJ.-I agree.