Aggrieved by the judgment and decree dated 11-8-1994 in O.S. No.510 of 1991 of the Principal Subordinate Judge. Visakhapatnam, the unsuccessful defendant filed the present appeal and on his death during the pendency of the appeal appellant Nos. 2 and 3 were brought on record as his legal representatives.

2. O.S. No. 510 of 1991 was filed by the respondent herein alleging that the house bearing No.16-6-13. Official Colony, Visakhapatnam belonging to the plaintiff was leased out under an oral agreement to the defendant on a monthly rent of Rs.3,500/-from 12-2-1989 and a notice was issued by the plaintiff on 10-9-1991 terminating the tenancy with effect from 28-9-1991 and a correction 10tice was issued on 18-9-1991 demanding delivery of vacant possession by 12-10-1991. In the absence of any reply from the defendant, the suit was filed for eviction recovery of arrears of rent till termination and recovery of damages for use and occupation thereafter at Rs.1 0,000/- per month as well as the electricity charges paid by the plaintiff.

3. The defendant resisted the suit on various grounds and primarily questioned that the quit notice and the rejoinder were not legal or adequate and do not duly determine the tenancy. A reply was sent accordingly. Hence, the defendant sought for dismissal of the suit.

4. The trial Court framed the following issues for trial:

1. Whether there is valid quit notice terminating the tenancy?

2. Whether the plaintiff is entitled for damages for use and occupation?

3. To what relief?

5. The trial Court examined P.W.1 and D.W.1 and marked Exs.A-1 to A-5 and Exs.B-1 to B-4 during trial. By the impugned judgment, the trial Court also disposed of O.S. No.295 of 1993 filed by the tenant for a permanent injunction against the landlord from interfering with his possession and for a mandatory direction against defendants 2 and 3 therein to restore electricity connection. In O.S. No. 510 of 1991, the trial Court found that quit notices Exs.A-1 and A-3 were validly issued and decreed the suit for eviction with proportionate costs, while directing the determination of the mesne profits from the date of termination of lease i.e. 12-10-1991 till the date of delivery of possession by the tenant on a separate application. The claims of the plaintiff for arrears of rent and electricity charges were dismissed and the defendant was granted two months time for vacating the premises.

6. Against the judgment and decree in O.S.No.510 of 1991, the defendant/tenant filed the present appeal primarily questioning the validity of the notice to quit. It was specifically pleaded that the lower Court failed to see and ought to have seen that under Section 110 of the Transfer of Property Act, 1882, the date of commencement (i.e.) 12th has to be excluded and the tenancy lasts up to 12th of the succeeding month of tenancy and as such the tenancy commences from 12-9-1991 and lasts up to 12-10-1991 and does not terminate by 11-10-1991 as determined by the respondent under EX.A-1 read with EX.A-3. (AIR 1975 SC 1111). The challenge to the grant of mesne profits to be determined in a separate enquiry on termination of tenancy, was also consequential to the challenge to validity of termination of the tenancy under the suit quit notice. The defendant/appellant herein also filed transfer Appeal Suit No. 1733 of 2002 against the judgment and decree in O.S.No.295 of 1993 to the extent they went against him.

7. These two appeals were heard and decided by common judgment, dated 26-11-2004, in which it was held that in the light of Dattonpant v. Vithalrao1 and N. Venkatesam v. Jadao Bai2, the quit notice was defective terminating the tenancy with effect from 11-10-1991 calling upon the tenant to deliver possession by 12-1 0-1991, instead of terminating the tenancy with effect from 12-10-1991 calling upon the tenant to deliver possession on 13-10-1991. The judgment under challenge in the Transfer Appeal Suit. No.1733 of 2002 was found to be not susceptible