JUDGMENT 1. - This first appeal filed under section 96, CPC by plaintiff-Santosh is against the judgment & decree dated 16.7.1991 passed by District Judge, Tonk in Civil Suit No. 03/83. The learned Judge dismissed the eviction & rent recovery suit, mainly on the ground that relationship of landlord & tenant has not been established. 2. The relevant brief facts are that the property in question is a house with open land, situated in Tonk. This property was let out on 6.2.1981 at the rent of Rs. 400/- per month by plaintiff- Santosh (appellant herein) to defendant-respondent. A rent-note Ex.1 was also executed to above effect. The tenancy was a monthly tenancy. 3. It is averred in the plaint that only two months' rent was paid by the defendant and thereafter, he failed to pay the rent in spite of demand and therefore, the suit for ejectment and arrears of rent was filed on 30.7.1982. 4. The defendant (respondent herein) in the written statement denied the relationship of landlord & tenant between parties and also denied title of plaintiff- landlord to the suit property. However, defendant admitted that he is tenant in the suit premises from the side of Prahlad Teli, from whom the house was taken on rent. The receipt of notice from the plaintiff has been admitted which has been replied properly. It has been further averred, in the written statement that when plaintiff was not owner of the suit property and when defendant has never taken the property on rent from him nor has paid any rent to him, therefore, the suit is not maintainable. 5. In the special objection it has been further mentioned by the defendant that with regard to suit property, a civil suit is pending between Prahlad/Kishan v. Prahlad & Anr. Suit No. 26/80 was with regard to same property is also pending between Rameshwar Sethi v. Dhapu. In the above suit, Prahlad Teli, his mother and sisters were defendants. Above suit was with regard to ⅕th share in the suit property. In the written statement of suit No. 26/80, defendants therein stated that the suit property belong to them, in which Prahlad Teli had 1 /5th share. It is also mentioned in the written statement that share of Prahlad Teli had been auctioned by Court on 22.10.1975, which was purchased by Rameshwar Sethi. In the written statement of suit No. 26/80, defendants therein stated that the suit property belong to them, in which Prahlad Teli had 1 /5th share. It is also mentioned in the written statement that share of Prahlad Teli had been auctioned by Court on 22.10.1975, which was purchased by Rameshwar Sethi. It has been again stated in the written statement that at the instance of Prahlad Teli, defendants purchased two non-judicial stamps of Rs. 5/- each, for executing rent notes and defendants signed on blank stamp papers as also bland rent notes, upon assurance of Umrao Mal Jain, Advocate, with the understanding that rent will be Rs. 205/- per month and rent note will be executed by Prahlad in his favour. It has also been mentioned in the written statement that defendants paid Rs. 570/- on behalf of Prahlad Teli, which were adjusted towards arrears of rent. 6. Upon pleadings of the parties, trial Court framed following 4 issues:- " 1- D;k fooknxzLr edku oknh }kjk izfroknh dks fnukad 6-2-1981 dks 400@& :0 ekfld nj ls fdjk;s ij nsdj izfroknh ls fdjk;k ukek vius gd esa rgjhj o rdehy djk fy;k vkSj bl izdkj i{kdkjksa ds chp edku ekfyd o fdjk;snkj ds lEcU/k Lfkkfir gq;s\ ------------oknh 2- D;k izfroknh& fdjk;snkj us ebZ] 1981 ls fdjk;k Hkqxrku ugha fd;k gS vkSj bl izdkj og fMQkYVj dh rkjhQ esa vk x;k\ ------------oknh 3- D;k oknh 13 ekg dk cdk;k fdjk;k 5]200@& :0 o vkbZUnk 500@& :0 izfrekg ls vYidkyhu ykHk izkIr djus dk vf/kdkjh gS\ ------------oknh 4- vk;k oknh us izfroknh& fdjk;snkj dks csn[kyh dk uksfVl fn;k o fdjk;snkjh lekIr dh\ ------------oknh " 7. The burden of proof of these issues was on plaintiff, therefore, he examined himself as PW-1, Radhey Shyam as PW-2 and exhibited documents Exs. 1, 2 & 3. On the contrary, defendant-Ram Kishan examined himself as DW-1, Rafiq as DW-2 and Husain Khan as DW-3 and also exhibited some documents as Exs. A-1 to A-7. 8. Thereafter, learned trial Court has decided issues No. 1 & 3 against plaintiff and issue No. 2 has been decided in favour of plaintiff. With regard to issue No. 4, it was held by the trial Court that relationship of landlord-tenant has not been established, therefore, to determine tenancy, notice was not essential. 9. A-1 to A-7. 8. Thereafter, learned trial Court has decided issues No. 1 & 3 against plaintiff and issue No. 2 has been decided in favour of plaintiff. With regard to issue No. 4, it was held by the trial Court that relationship of landlord-tenant has not been established, therefore, to determine tenancy, notice was not essential. 9. In the above factual matrix, solitary point for determination before me is that-whether between the parties relationship of landlord & tenant has been established or not? 10. Learned counsel for plaintiff-appellant has submitted with all force that when rent-note was executed on non-judicial stamp of Rs. 5/- and when signature over it has been admitted by the defendant and when same has been proved not only by PW-1 Santosh but also by one of the attesting witness - PW-2 Radhey Shyam; then trial Court ought to have believed the same and must have decided issue No. 1 in favour of the plaintiff. On the contrary, learned counsel for defendant-respondent has supported the impugned judgment on this issue. 11. The main thrust of argument of the learned counsel was that in the examination-in-chief PW-1 Santosh has admitted that the property belonged to his mother-in-law and her 3 daughters, to the extent of ⅘th share and remaining ⅕th share was in the ownership of Prahlad. Thus, when no power-of-attorney has been given by these owners in favour of Santosh, how can he file a suit on their behalf and how can he lease out the property without authority. It has also been submitted by learned counsel for defendant-respondent that there is variance between the pleadings and proof because in the plaint, nowhere it has been stated E that the property belonged to heirs of Kalyan Bux, his widow & 3 daughters & son Prahlad whereas, for the first time, in the Court testimony PW-1 Prahlad has disclosed that the property belonged to I ; of Kalyan Bux and he was authorised to manage that property, give it on lease over rent etc. There being variance between pleadings and proof, the trial Court has rightly held that plaintiff has no right to institute the suit on behalf of widow and daughters of Kalyan Bux. Both the learned counsel relied upon a spate of pronouncement in support of their contentions. 12. There being variance between pleadings and proof, the trial Court has rightly held that plaintiff has no right to institute the suit on behalf of widow and daughters of Kalyan Bux. Both the learned counsel relied upon a spate of pronouncement in support of their contentions. 12. I have carefully considered the rival contentions and, have perused pronouncements referred by the learned counsel. I have also carefully considered the judgment impugned and the reasoning prevailing with the trial Court vis-a-vis, evidence produced, ocular & documentary, available on the file. 13. Though plaintiff-appellant has not mentioned any fact in the plaint that property belonged to widow & daughters of Kalyan Bux and he has been authorised to lease them out or recover the rent; it has also not been mentioned in the plaint that plaintiff has been authorised to institute suit on behalf of heirs of Kalyan Bux. However, above objections were taken in the written statement and an application under Order 10, Rule 1, CPC r/w Section 151, CPC was filed on 13.10.1986 before the trial Court on behalf of Mst. Dhapu widow of Kalyan Bux, Mst. Foli wife of Santosh & daughter of Kalyan Bux, Mst. Madi widow of Shravan Lal & daughter of Kalyan Bux and Mst. Panchi widow of Gopal & daughter of Kalyan Bux; to be impleaded as party in the suit. Another application was also filed on behalf of Prahlad to be impleaded as party. 14. The defendant contested both these applications and learned trial Court by its order dated 17.11.1990 dismissed both the applications, observing that heirs of Kalyan Bux were not necessary party to the suit. 15. In the above factual matrix, it has to be looked into whether the suit was maintainable or not. It is established legal principle that even a treaspasser can lease it out and the rightful owner can claim possession from him. If a property is leased out by a trespasser and tenant has taken possession from him then relationship of landlord & tenant stands established. The tenant is liable to said landlord, whatever be his title to the property. 16. If a property is leased out by a trespasser and tenant has taken possession from him then relationship of landlord & tenant stands established. The tenant is liable to said landlord, whatever be his title to the property. 16. In the matter at hand, case of defendant-respondent is not this that he is owner of the property but he has specifically pleaded that the ownership to the extent of ⅕th share is in the name of Prahlad and also admitted that two non-judicial stamp papers of Rs. 5/- each were purchased by the defendant-tenant for execution of rent note in favour of Prahlad. Similarly, two proforma of rent notes were also purchased by the defendant. It has also been admitted that defendant- Ram Kishan has signed all the four papers, at the assurance of Shri Umrao Mal Jain, Advocate that rent note will be executed on them, for rent at the rate of Rs. 205/- per month and in favour of Prahlad. 17. What was to be seen by the Court below was whether version of the defendant was correct or not. When signature on rent-note Ex.1 had been admitted by Ram Kishan-defendant, even assuming that two months' rent, as alleged by the plaintiff, was not paid by the defendant; that by itself was not sufficient to throw away the documentary and oral evidence of the plaintiff. As expressed above, in ejectment suits, title and ownership of the property is not germane. What is sine qua non in such a litigation is the relationship of landlord & tenant between the parties. Neither in the written statement nor in his ocular testimony Ram Kishan (defendant) has stated that he ever paid any rent to Prahlad or he ever handed over stamp papers to Prahlad. Prahlad has not been examined from either side. Shri Umrao Mal Jain, Advocate has also not been examined from either side though an affidavit of Shri Umrao Mal Jain, attested by the Oath Commissioner has been filed on 18.3.1983 on behalf of defendant in the trial Court but that was with regard to assessment of provisional rent by the Court under section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. This affidavit of Shri Umrao Mal Jain, Advocate can not be looked into so far as determination of issues are concerned because it has never been put to cross-examination by the plaintiff. This affidavit of Shri Umrao Mal Jain, Advocate can not be looked into so far as determination of issues are concerned because it has never been put to cross-examination by the plaintiff. In its affidavit, Shri Umrao Mal Jain, Advocate stated that two non- judicial stamp papers were purchased for executing rent notes for ⅕th share in favour of Prahlad and ⅘th share in favour of his mother & sisters. Nowhere it has been stated nor proved that what happened to another Rs. 5/- non-judicial stamp paper on which also defendant has put his signature. No such rent note was executed else there would have been any eviction suit on that behalf. Even DW-1 Ram Kishan has not stated that he had ever paid rent to Prahlad or his mother & sisters. 18. There is another aspect of the matter, not considered by the trial Court. When in the written statement it was specifically mentioned that with regard to ownership of the suit premises two civil suits were pending; one between Prahlad/Ramkishan v. Prahlad and another between Rameshwar Sethi v. Dhapu etc. Copies of plaints of above suits have also been filed which were Exs. A-2 & A-3. After the institution of this present suit, Ram Kishan also filed a suit for cancellation of rent-note dated 6.1.1981 against Prahiad and Santosh. Copy of that suit is Ex.A- 1. A perusal of Ex.A-3, copy of plaint of the suit filed by Rameshwar Sethi indicate that he purchased ⅕th share of Prahlad in auction sale on 5.3.1979. These are documents of defendant and binds him to some extent. When ⅕th share of Prahlad in the suit premises was sold in Court auction in the year 1979 how can he still lease it out to defendant on 6.2.1981. Prior to it, even Rameshwar also filed a partition suit on 29.11.1980 with regard to 1 /5th share of Prahlad so purchased by him. Had Prahlad been even owner of ⅕th share of the property, he too could lease out to the extent of his share. The documentary evidence available on the file, more so Exs. A-2 & A-3, makes it clear that Prahlad was not owner of even 1 /5th share of the house after 5.3.1979, therefore, there was no question of executing any rent note in favour of Prahlad to the extent of 1 /5th share of the suit property. The documentary evidence available on the file, more so Exs. A-2 & A-3, makes it clear that Prahlad was not owner of even 1 /5th share of the house after 5.3.1979, therefore, there was no question of executing any rent note in favour of Prahlad to the extent of 1 /5th share of the suit property. Even Prahlad was not examined on behalf of defendant. His application filed under Order 10, Rule 1, CPC for impleading a party was also dismissed by the trial Court. The widow of Kalyan Bux and his three daughters also filed an application under Order 10, Rule 1, CPC to be made party, that too was dismissed by the trial Court. Both these applications were resisted by defendant. Had his plea been genuine, he must have at least not objected to make them party to the suit. It seems that defendant-respondent wanted Ito fish in troubled water. On the other hand, he has stated in the written statement that ownership of the property belonged to Prahlad and her mother & sisters and that he signed on blank papers, on the assurance that rent-note will be executed in favour of Prahlad, to the extent of 1 /5th share and his mother & sisters, to the extent of ⅘th share. On the contrary, when these persons wanted to become par to the suit, defendant strongly objected to it. The trial Court also, in spite of averments to the contrary in the written statement, has dismissed both the applications. 19. The trial Court should have appreciated and analysed evidentiary value of ocular and documentary evidence, keeping in view factual and legal aspects of the matter. PW 1 Santosh has stated on oath that the house in question belonged to his mother- in-law, wife and two sisters-in-laws, who being old and infirm, have authorised the plaintiff to manage the property and give on rent to anybody. Though PW-1 Santosh has admitted that he has filed the suit on behalf of his mother- in-law but that by itself is not sufficient to hold that there is difference between pleadings & proof or that plaintiff has no right to file the suit. In eviction suits, rights of parties with regard to ownership and title can not be gone into. In eviction suits, rights of parties with regard to ownership and title can not be gone into. If it is proved that possession of the suit premises has been given by the plaintiff to the defendant-tenant and rent has been agreed to be paid, the relationship of landlord and tenant has been proved. 20. In the matter at hand, PW-1 Santosh has specifically stated that the suit premises were let out by him to Ram Kishan, who has executed a rent note Ex.1 in his favour. The rent note was on a non-judicial stamp paper of Rs. 5/-. He has further stated that this rent note was written by Nathu at the hotel of plaintiff in presence of Phool Chand Teli and Radhey Shyam Sundar. This witness further stated that Ram Kishan has signed at place A to B on Ex. 1 in his presence and in the presence of above witnesses. The monthly rent was agreed at Rs. 400/-. No effective cross- examination was conducted on this witness and no suggestion was given to him that the rent-note Ex.1 was executed by playing fraud or mis-representation. PW I Santosh has denied the suggestion in cross-examination that Ram Kishan has signed on a blank stamp paper of Ex. 1. No suggestion was made to this witness that plaintiff has wrongfully removed the stamp Ex. 1 from custody of Umrao Mal Jain, Advocate. The suggestion, to the contrary, was that Prahlad Teli took away Ex.l stamp paper, having signature of Ram Kishan, by playing fraud on Umrao Mal Jain, Advocate. Neither Umrao Mal Jain has been examined on behalf of defendant nor he has stated so in his affidavit dated 18.3.1983. When relationship between Santosh and his brother-in-law Prahlad were not cordial, the possibility of Prahlad giving away blank stamp papers of Ex.1 to plaintiff is also ruled out. 21. PW-2 Radhey Shyam was an independent witness. He has no axe to grind on either side. He was neither related to plaintiff nor was of his caste & creed. This witness has proved execution of rent note Ex.1 and has deposed that Ram Kishan brought stamp paper of Ex. 1 and has put his signature at place A to B in presence of this witness. He has no axe to grind on either side. He was neither related to plaintiff nor was of his caste & creed. This witness has proved execution of rent note Ex.1 and has deposed that Ram Kishan brought stamp paper of Ex. 1 and has put his signature at place A to B in presence of this witness. He has further stated that Nathu Lal scribed Ex.1 and thereafter this witness has also signed it at place C to D. Though in the cross-examination this witness has abruptly stated that the rent note was written in favour of mother-in- law and sisters-in-law of plaintiff, however, on re- examination, he clarified the above fact that the rent note was written in favour of plaintiff-Santosh and he has wrongly stated the same being written in favour of mother-in-law and sisters-in-law of Santosh. It is just possible that the semi-literate witness may have some mis-understanding because the property belonged mother-in-law and sisters-in-law of the plaintiff. His wife also had equal share along with mother-in-law and sisters- in-law in the suit property. f 1 22. In the face of above documentary and ocular evidence led by the plaintiff- defendant-Ram Kishan examined himself, repeating some of averments of his written statement. In the cross-examination, DW-1 Ram Kishan has admitted that he has not paid any rent to Prahlad nor has he paid rent to anybody else. Thereafter, he has admitted that except Kailash and Santosh none else demanded rent of this property from him. DW-3 Hussain Khan had been examined to prove that Prahlad owed some money to him which was paid to them by Ram Kishan. DW-2 Rafiq was examined to corroborate version of defendants that Ram Kishan signed on a blank stamp paper, at the assurance of Umrao Mal Jain, Advocate and handed over stamp papers to Prahlad. Name of Rafiq has not been suggested even in the cross-examination of PW 1 Santosh or PW 2 Radhey Shyam that at the time when Ram Kishan has put his signature on Ex.1, this witness was present. It seems that at the fag end of the trial, DW-2 Rafiq was examined because he readily agreed to get pursuad by defendant. Testimony of such witness can not be given any credence in the face of documentary and other reliable evidence of plaintiff. 23. It seems that at the fag end of the trial, DW-2 Rafiq was examined because he readily agreed to get pursuad by defendant. Testimony of such witness can not be given any credence in the face of documentary and other reliable evidence of plaintiff. 23. The logic and reasoning prevailing with the trial Court is not tenable because the Court below seems to have fell into quagmire of ownership of the property, forgetting that in ejectment suits, questions of title and ownership of property are not germane. Even a trespasser can lease out the property of his possession. What was to be seen by the trial Court was whether possession of the suit property was given to the defendant by the plaintiff or not and, what was the agreed rent. 24. In the matter at hand, no suggestion worth the name was given in the cross-examination to PW-1 Santosh nor has same been mentioned in the written statement, that possession of the suit property was received by the defendant from Prahlad or somebody else. When Prahlad was not having cordial relations with mother & sisters and 1 /5th of his share in the property was already sold in Court auction prior to execution of the rent note, the possibility of giving possession of suit property by him does not arise. 25. In the above factual and legal matrix, there is no merit in the impugned judgment. The relationship of landlord & tenant has been established between the parties and therefore, issue No. 1 is decided in favour of plaintiff-appellant and against defendant-respondent. 26. Issue No. 2 has already been decided in favour of plaintiff because defendant has not paid rent and was rightly held to be defaulter. Issue No. 3 is with regard to rent note Ex.1. According to rent-note Ex. 1 and ocular statements of PWs 1 & 3, monthly rent was Rs. 400/-, which has been proved and therefore, the plaintiff-appellant was entitled to receive the rent at that rate from 6.2.1981, upto filing of the suit i.e. on 30.7.1982 and thereafter, at the above rate, plaintiff is entitled to receive amount as mesne profit for use and occupation of the premises in question. Therefore, issue No. 3 is also decided in favour of plaintiff- appellant. Even in the written statement, receipt of notice has been admitted which was also replied by defendant. Therefore, issue No. 3 is also decided in favour of plaintiff- appellant. Even in the written statement, receipt of notice has been admitted which was also replied by defendant. In such a situation, this issue does not arise.Consequently, the appeal is accepted. The judgment & decree dated 16.7.1991 passed by the trial Court is set aside and the suit is decreed in favour of plaintiff, for ejectment as also for recovery of arrears of rent and mesne profits, as stated A above. A decree to above effect be framed. The defendant-tenant is given two months' time to vacate the premises.Appeal allowed. *******