Indermeet Kaur, J.

1. This is suit for recovery of possession and also for damages for use and occupation.

2. The disputed premises are Flat No. 406, Milap Niketan, 4th Floor, 8-A, Bahadur Shah Zafar Marg, New Delhi. Parties had entered into a lease agreement dated 20.09.1980 for taking the premises on lease along with the fittings and fixtures at a rental of Rs. 5,155.50. The initial period of lease was for five years which expired on 31.10.1985. The defendant requested the plaintiff for a further renewal of five years which offer was not accepted by the plaintiff. The lease of the defendant had terminated by efflux of time. On 08.08.1989, a notice was served upon the defendant terminating his tenancy with effect from 01.09.1989. Defendant sent his reply dated 08.09.1989. He did not vacate the premises. Present suit was filed.

3. In his written statement, contention of the defendant was that the agreement dated 20.09.1980 was an `agreement to lease'; the defendant had performed his part of the contract; he was protected under Section 53A of Transfer of Property Act (hereinafter called as `TPA'); he could not be evicted. The document dated 20.09.1980 was a document in future; rights which had accrued to the defendant were rights in perpetuity; he could not be effected. Receipt of the notice dated 02.08.1989 was not denied.

4. On the pleadings of the parties on 04.04.1996 following issues were framed:-

(i)

Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for? OPP

(ii)

Whether the plaintiff is entitled to a decree in the sum of Rs. 66,600/- as prayed for? OPD

(iii)

Whether the plaintiff is entitled to damages from the period 1.3.90, if so, at what rate? OPP

(iv)

Whether the agreement between the parties dated 20.9.80 was only an agreement to lease and not a lease agreement and if so, its effect? OPD

(v)

Whether the defendant is entitled to protection under Section 53A of the Transfer of Property Act as has been alleged? OPD

(vi)

Whether the alleged acceptance of the enhanced rent by the plaintiff amounts to a waiver of his right to terminate the tenancy of the defendant? OPD

(vii)

Relief.

Thereafter on 16.05.2001 additional issues were framed which read as under:-

(i)

Whether the premises in question were let out in perpetuity? If so, to what effect? OPD

(ii)

Whether the plaintiff and other co-owners handed over the possession as a single and composite unit by creating a lease? OPD

(iii)

Whether the entire IVth floor of the building constructed on plot No. 8-A, Bahadurshah Zafar Marg, New Delhi belonging to different owners qua their respective flats including the portion of the plaintiff was taken on lease by the defendant as a single and composite unit and if so, to what effect? OPD

(iv)

Whether the defendant financed the plaintiff to pay for the cost of the flat alongwith other co-owners of their respective flats with the understanding to have the lease on perpetuity as a single and composite unit? OPD

5. Oral and documentary evidence was held by the respective parties. The main contention was the document dated 20.09.1980, what rights had accrued to the respective parties in terms thereof?

6. The Trial Judge held that this document did not create a lease in perpetuity in favour of the defendant; the protection under Section 53A of TPA is not available to him as a harmonious construction has to be given to the provisions of Section 53A and Section 107 of the TPA. The document, in fact, was a lease and not an agreement to lease. The legal notice had validly terminated the tenancy of the defendant. The plaintiff was also held entitled to mesne profits. Suit of the plaintiff was accordingly decreed.

7. The impugned judgment had endorsed this finding of the Trial Judge. Relevant extract reads as follows:-

14. At the outset, the main controversy for determination is whether the document dated 20.09.1980 is an "Agreement to Lease" or "Lease Agreement".

15. It was contended on behalf of the appellant that on a true constru