M JAYALAXMI Vs. G GOVERDHAN REDDY

JUDGEMENT

(1.) Leave granted.

(2.) This is an appeal by the landlord in a suit for eviction. The premises were let out to the respondent under an agreement granting lease for a period of 11 months from 1/4/1984. In the lease agreement it was stated that the lease shall be according to the English calendar month. By a notice dated 28/1/1985 the appellant sought to terminate the tenancy by midnight of 28/2/1985 and informed the respondent that his occupation on and after 1/3/1985 shall be regarded as unauthorised. The respondent was called upon to vacate the premises and to hand over vacant possession. The respondent failed to vacate the premises and thereupon the appellant filed the suit for eviction (OS No. 332 of 1985 which has given rise to this appeal. The said suit was decreed by the trial court by judgment dated 26/7/1989. The said decree of the trial court was affirmed in appeal by the appellate court by judgment dated 19-3-1992. By the impugned judgment dated 15/4/1994, the a. P. High court, in second appeal, has reversed the said decree and has dismissed the suit on the view that the notice was not a valid notice under Section 106 of the Transfer of Property Act, 1882. Relying upon the provisions contained in Section 110 of the Transfer of Property Act the High court has held that since, as per the agreement the lease started from 1/4/198484, the date of commencement of the tenancy was 2/4/1984 and the noticeterminating the tenancy with effect from the midnight of 20/2/1985 was invalid.

(3.) In this context it may be stated that no issue was raised in the suit regarding invalidity of the notice and before the trial court no contention regarding invalidity of the notice was urged by the respondent. Before the first appellate court the only objection that was raised by the respondent to assail the validity of the notice was that by the notice the tenancy had been terminated from the date of the notice. The said objection was overruled by the appellate court on the view that in para 4 of the said notice it was clearly indicated that tenancy was being terminated from the midnight of 28/2/1985. The High court permitted the respondent to raise the plea about the notice being invalid on the basis of Section 110 of the Transfer of Property Act for the first time in second appeal. Having regard to the facts of this case we are of the view that the High court was in error in non-suiting the appellant on this ground. We cannot lose sight of the fact that the tenancy was for a fixed period of 11 months. It came to an end by efflux of time on 1/3/1985. No notice for terminating the tenancy under Section 106 was required for the purpose of filing the suit after 1/3/1985. The respondent cannot be treated as a tenant holding over in view of the express indication given by the appellant by his notice dated 28/1/1985 that he did not propose to continue the tenancy of the respondent,