A. GANGADHARA RAO, J.

( 1 ) THIS second appeal is filed by the plaintiff appellant. He filed a suit against the defendant tenant for tviction and for vacant possession of the suit house and for mesne profits. The plaintiff is the owner of the plaint schedule house. According to him, it was constructed after 26--8-1957 and therefore the provisions of the Andhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960 are not applicable to the suit house. The defendant took the bouse on lease in 1964 on a monthly rental of Rs. 40/-for 11 months. The defendant paid rent upto January, 1973. The plaintiff issued a notice to him on 1-7-73 terminating the tenancy by the end of July, 1973 and asking the defendant to vacate the premises by that date and also demanding the rent dated from 1-1-73. The defendant issued a reply on 3-8-73 and he also sent an amount of Rs. 280/-by draft for the period from 1-1-1973 till 31-7-1973 at she rate of Rs. 40/per mon h. For the subsequent periods the rents wers deposited into Court The plaintiff also contended that he needed the building for his personal use.

( 2 ) THE petition was resisted by the defendant on a number of grounds. It is unnecessary for me to refe rto all of them,

( 3 ) THE principal District Munsif, Vijayanagaratn held that the plaintiff failed to establish that the building was constructed after 26-8-1957 and therefore the provisions of the Aridhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960 did not apply to the suit building. He held that the defendant did not commit wilful dejauli in payment of rent and therefore the notice dated 1-7-73 given by the plaintiff to the defendant terminating the tenancy was not valid and binding up on the defendant. He found that the plaintiff did not require the suit house for his personal use or occupation. In the result he held that the SUK was not maintainable and that the plaintiff was not entitled to vacate possession of the suit building and therefore he dismissed the suit.

( 4 ) QUESTIONING that decree, the plaintiff filed an appeal in the Court of the Subordinate Judge, Vijdyanagaram. The learned Judge held that the suit house was ccmtiucted in 1959 and therefore the Andhra Prandesh Buildings (Lease, Rent and Eviction) Control Act 1960 had no application. He also found that the tenancy was from month to month and the plainiiff gave the notice Ex,a1 under section 106 of the TRANSFER OF PROPERTY ACT, 1882 on 1-7-1973 termina ing the tenancy by 31-7-73 and calling upon the defendant to deliver possession of the suit house before that date. He observed that ihe notice was received by the defendant on 7-7-73. But he observed that the grounds mentioned in the notice for determining the notice i e. , default of payment of rent and for effecting repairs, are not true. Therefore he held that the notice Ex. A1 dated 1-7-73, was not valid. He found that the defendant sent back draft for the rent upto July, 1973, and for August, 1973 he sent the rent by money order and thereafter he was depositing the rents in the Court. He had that the defendant was not a trespasser and his possession was not wrongful and therefore he was not liable to pay mesnune profit but he had to pay only the rents. In ihe rtsult he dismissed the appeal.

( 5 ) IN this second appsul hied by the plaintiff, the substantial question of hw that is raised by ihe learned counsel for the appellant is that when once the lower appellate Court had fouad thai the suit was maintainable and when a notice was given according to the provisioins of Section 106 of the transfer of the Property Act, the learned Judge, erred in dismissing the suit or the ground that the plaintiff had failed to make out that there was default is payment of rent and also that the house was in need of repairs. It is argued that in a rent control petition these questions may be genuine but not in a suit, 1 agree with this contention. The learned Subordinate Judge has found deferring with the Distric

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