Arup Kumar Goswami, J.

1. Heard Mr. G.N. Sahewalla, learned Senior Counsel for the appellant. Also heard Ms. P. Bhattacharjee, learned counsel appearing for the respondents.

2. The second appeal is preferred by the defendant No. 1 against the judgment and decree dated 05.10.2005 passed by the learned Civil Judge (Sr. Divn.), Jorhat in Title Appeal No. 14/2005, dismissing the appeal by confirming the judgment and decree dated 06.12.2004 passed by the learned Civil Judge (Jr. Divn.), Jorhat in Title Suit No. 92/1997, whereby the suit of the plaintiff was decreed.

3. This second appeal was admitted to be heard by an order dated 18.01.2006 on the following substantial questions of law:

"1. Whether a tenant under a void lease becomes a lessee once rent is paid and accepted and whether courts below acted illegally in holding the appellant as permissive occupier only and granting the benefit of a lease?

2. Whether notice under Section 106 of T.P. Act, is a must and is to prove even if the tenancy is treated as monthly and whether courts below erred in holding that no notice under Section 106 of T.P. Act is required merely because lease deed was not registered although rent was accepted?"

4. The learned counsel for the parties submit that in substantial questions of law No. 1 the word "not" after the word "and" before the word "granting" is dropped. It is also pointed out that "is to prove" in substantial question of law No. 2 should be read as "is to be proved". It is apparent that inadvertently some mistakes had cropped up in framing the substantial questions of law and the substantial questions of law framed have to be considered in the light of the submissions of the learned counsel for the parties.

5. The case of the plaintiff is that 4 Bigha 3 Katha 4 Lecha of land in Dag Nos. 1063 and 1064 of Periodic Patta No. 137 situated at No. 2 Gharpholia Gaon belonged to Baneswar Gogoi @ Ahom. The plaintiff and defendant Nos. 2 and 3 were nephews of Late Baneswar Gogoi and they lived in a joint family. Baneswar Gogoi died as a bachelor on 30.11.1987 leaving behind the plaintiff and the defendant Nos. 2 and 3 as his only heirs. Baneswar Gogoi was looked after by the plaintiff and the defendant Nos. 2 and 3. Baneswar Gogoi had executed a Gift Deed on 08.10.1985 in favour of the plaintiff and the defendant Nos. 2 and 3 in respect of land including the aforesaid 4 Bigha 3 Katha 4 Lecha. All of them had equal shares and they divided the suit patta land amongst them during the lifetime of Baneswar Gogoi and the suit land measuring 1 Bigha is a portion of the land which had fallen in the share of the plaintiff. Baneswar Gogoi had executed an unregistered lease agreement with the defendant No. 1 in respect of the suit land for the period 16.11.1984 to 30.11.1987, whereupon the defendant No. 1 had installed a Stone Crushing Mill. After expiry of term, the plaintiff requested the defendant No. 1 to vacate the suit land with no avail. Thereafter, a legal notice was issued through an advocate to the defendant No. 1 to vacate the suit premises within 15 days from the date of receipt of the notice. It was also pleaded that Baneswar Gogoi had never executed any deed of agreement of sale of the suit land which was referred by the defendant No. 1 in reply to the legal notice issued on behalf of the plaintiff. It was pleaded that the defendant No. 1 was in unauthorized occupation of the suit land from 01.12.1987 and that he was a trespasser liable to be evicted in law. Accordingly, the plaintiff prayed for declaration of right, title and interest and for recovery of khas possession of the suit land, permanent injunction, compensation at the rate of Rs. 20/- per day against the defendant No. 1 from 01.12.1987 till the date of actual eviction of the defendant No. 1.

6. The defendant No. 1 filed a written statement stating that Gift Deed was not accepted by Golap Chandra Gogoi, defendant No. 2. It was denied that suit land was ever possessed by the plaintif