The main legal point established in the judgment is that the requirement of a notice to quit under S. 106 of the Transfer of Property Act is necessary for effectually terminating a tenancy for a landlord to earn the right to obtain possession of a leased premises.

( 1 ) THIS is a tenant's petition under S. 26 of the Hyderabad Houses (Rent, Eviction and lease)Control Act, 1954. It is directed against an order in appeal made by the learned District Judge raichur, in C M A No. 1/5 of 1965, on 30-10-1965. The said appeal had been preferred by the respondent-landlord against an order of the Asst. Commissioner and Rent Controller, Koppal, in file No. 8/rc/58-59, made on 25-11-1964.

( 2 ) THE petition for eviction was filed by the landlord on the ground of arrears of rent. The tenant, the petitioner before this Court, among other grounds, had raised the objection that there was no tenancy and, in fact, he was the owner of the premises in question. He has claimed ownership on the ground that be had purchased the property from the mother of the petitioner and that owing to subsequent differences an understanding was arrived at that he should relinquish his rights in favour of the vendor on her repaying him a sum of Rs. 300. Since this sum was not paid, he continued to be in possession. This is denied by the original petitioner. It is unnecessary to set out the other facts and circumstances alleged by the parties as they are not necessary for the purpose of disposal of the present petition.

( 3 ) THE Controller dismissed the petition on the ground that tenancy alleged by the landlord had not been proved. In appeal, the learned District Judge, Raichur, came to the conclusion that the tenancy had been proved and consequently directed eviction by his order which is impugned herein. This finding of fact is not assailed before this Court by the petitioner.

( 4 ) SRI S. R. Kagalkar, the learned Counsel of the petitioner, urged only one contention relating to the right of the landlord to evict him pursuant to the provisions of the concerned Rent Control act. He submitted that the petition for eviction would not be maintainable in the absence of a proper notice to quit under S. 106 of the Transfer of Property Act, thus determining the tenancy, in accordance with law. In support of his submission he relied on two decisions of this Court reported in Md. Abdul Rahaman v. Md. Osman Ali Saheb, 1964-2 Mys LJ 465 and Bipathumma v. Mariam Bibi, 1966-1 Mys LJ 162.

( 5 ) BEFORE adverting to these decisions, one relevant fact has to be noticed. It is not disputed that no such notice determining the tenancy had been issued before lodging the petition for eviction. Sri V. H. Ron, appearing on behalf of the present respondent, submitted that the tenant could not be permitted to raise this objection at this highly belated stage, not having made it a ground in the objections filed by him before the Controller. But this objection is met by Sri Kagalkar by a reference to the case reported in 1964-2 Mys LJ 465. In that case also a similar objection was allowed to be taken by this Court for the first time in revision. Since it goes to the very root of the maintainability of the petition for eviction as his very right to obtain possession depends on the termination of tenancy in accordance with law, and in the facts and circumstances of the case, it may not be just or proper to prevent the petitioner from urging this ground. Hence, the argument of Sri Ron in this behalf cannot be accepted.

( 6 ) IN Mohamed Abdul Rahman's case, 1964-2 Mys LJ 465 this Court was directly concerned with a case arising under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. It was held therein that an application for eviction under S. 10 (1) of the Hyderabad Act could not be maintained before the tenancy has been determined by a notice to quit under S. 111 (h) of the t. P. Act. The case of Bipathumma, 1966-1 Mys LJ 162 has reference to a case of eviction under s. 21 of the Mysore Rent Control Act. Here also it is held that before a landlord could initiate proceedings under S. 21 of the Act, it is necessary that the lease should have been determined either by notice or by other mode appropriate to the nature of the lease. Hen

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