H. R. MALHOTRA, J.

( 1 ) THIS appeal arises out of the judgment rendered by the trial court dated 30. 8. 1997 whereby the suit of the plaintiffs/appellants for recovery of possession of the first floor of 8, Ishwar Nagar (East), Mathura Road, New Delhi was dismissed as also the claim of the plaintiff for damages was turned down.

( 2 ) THE claim of the plaintiffs for damages/mesne profits was also turned down by the same judgment.

( 3 ) FEELING dissatisfied with the impugned judgment dated 30. 8. 1997, the appellants have preferred the appeal.

( 4 ) IT is necessary for us to narrate the facts of the case as set out by the plaintiffs/appellants in their plaint.

( 5 ) THE appellants let out the entire first floor of Premises bearing No. 8, Ishwar Nagar (East), Mathura Road, New Delhi and servant quarter above the garage to the defendant/respondent on a monthly rent of Rs. 4000/- and executed the lease deed on 24. 4. 1984 which was got registered on 3. 5. 1984. The lease deed was for a period of three years commencing from 3. 5. 1984 and ending on 2. 5. 1987.

( 6 ) ACCORDING to the plaintiffs/appellants, the tenancy came to an end on 2. 5. 1987 by efflux of time but the defendant/respondent did not vacate the premises necessitating the appellants to serve the legal notice against the defendant/respondent.

( 7 ) THOUGH, according to the appellants tenancy came to an end by efflux of time, yet by way of abundant precaution, the appellants served legal notice upon the defendant on 13. 9. 1989 by registered post and respondent was called upon to vacate and deliver the vacant possession of the premises to the appellant, but the defendant did not do so and continued in unauthorised possession despite service of notice on them, nor did they pay mesne profits for use and occupation of the suit premises, thus necessitating the appellants to institute suit against them seeking recovery of possession of the demise premises besides charges for use and occupation at the rate of 4,000/- p. m.

( 8 ) DEFENDANT/respondent contested the suit denying the claim of the appellants on merits as well as by taking few preliminary objections to the maintainability of the suit including challenging that the provisions of Delhi Rent Control Act were ultra vires and unconstitutional, the suit premises being not within the ambit of Delhi Rent Control Act, rent being more than 3,500/ -. Defendant/respondent also assailed the notice of termination of tenancy on the ground inter alia that the appellants have waived their right to seek possession of the disputed premises after having received rent from them for the period subsequent to the termination of tenancy.

( 9 ) ON merits, the defendant though admitted that the lease deed was executed between them and it was only for a period of three years but simultaneously stated that the understanding between the parties was that the defendant/respondent would continue to remain in occupation of the premises in dispute till such time he continued to pay rent to the plaintiffs/appellants regularly. According to the defendants the tenancy was perpetual and, therefore, the plaintiffs/appellants have no right to terminate the tenancy of the defendant.

( 10 ) THE defendant/respondent also denied the service of legal notice on them and further stated that it was not validly terminated. These are the only objections which defendant/respondent raised before the trial court.

( 11 ) THE appellants have filed replication reiterating what was averred by them in the plaint and repudiating the allegation made in the written statement. The trial judge on the basis of the pleadings framed the following issues.

1. WHETHER the suit is bad being for eviction of the partial tenancy? OPD. 2. Whether the lease stood determined by efflux of time as pleaded in the plaint in terms of the lease-deed between the parties. If so the effect? OPP. 3. Whether a notice of termination of tenancy was required to be given as pleaded in the written-stateme

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