If, on determination of a lease, lessee continues in possession and landlord accepts rent from such lessee, expressing assent, a new tenancy comes into existence.

(Second Appeal preferred under Section 100 CPC as against the judgment and decree dated 26.7.2003 rendered in A.S.No.44 of 2001 by the learned Subordinate Judge, Poonamallee, thereby confirming the judgment and decree dated 21.3.2001 rendered in O.S.No.243 of 2000 by the learned District Munsif, Poonamallee.)

Under the impugned judgments, rendered by the Courts below, the defendant/appellant was directed to deliver possession, which caused grievance and the result is this Second Appeal.

2. The parties are referred to as per their ranking in the original suit.

3. The respondent/plaintiff is the owner of the suit property, which was leased out to the defendant/appellant, on his agreeing to pay a monthly rent of Rs.1,150/=. The plaintiff, being the owner, requested the defendant/appellant to vacate the premises, by issuing notice and terminating the tenancy, since the property is required for his personal occupation, not conceded by the defendant/appellant, resulting the suit.

4. The defendant/appellant, admitting the tenancy, as monthly one, as well as agreeing the monthly rent also at Rs.1,150/=, opposed the claim, contending that the suit property is not required for the additional accommodation of the landlord or for her personal occupation and if the defendant is evicted, she will be deprived of the livelihood, since she is surviving only on the business conducted in the suit premises.

5. The defendant further alleging, that her possession is likely to be disturbed, has also filed the suit for bare injunction in O.S.No.206 of 2000 against the landlord, which was opposed.

6. The trial Court, by the common judgment dated 21.3.2001, dismissed the suit filed by the appellant/defendant in O.S.No.206 of 2000 and decreed the suit filed by the landlord, ordering eviction of the defendant/appellant. The appellant, who is the plaintiff in O.S.No.206 of 2000, has not preferred any appeal, as said before this Court, against the verdict in O.S.No.206 of 2000, whereas she has preferred the appeal only against the judgment and decree rendered in O.S.No.243 of 2000 before the first appellate Court in A.S.No.44 of 2001.

7. The learned Subordinate Judge, considering the short point involved in this case viz. was there proper termination of the tenancy, felt, that the requirement of Section 106 of the Transfer of Property Act is fully complied with and this being the position, there is no other defence available to the tenant and in this view, confirming the decree and judgment of the trial Court, the appeal came to be dismissed on 26.7.2003, which is impugned in this Second Appeal.

8. This Court, while admitting the Second Appeal, had formulated the following Substantial Questions of Law:

"1. Whether the suit is maintainable?

2. Whether there is a valid notice to quit in terms of Section 106 of the Transfer of Property Act?

3. Whether the notice to quit under Ex.A.1 is valid when there is contract stipulation three months notice for termination of tenancy?"

9. Heard Mr.V.Subramani, learned counsel for the appellant and Mr.M.M.Abdul Razack, learned counsel for the respondent.

10. Mr.V.Subramani, learned counsel appearing for the appellant, would submit that in this case, there is an agreement between the landlord and tenant, contemplating three months notice and this being the position, when, admittedly, no notice has been issued terminating the tenancy, giving three months, the suit filed itself is not maintainable, deserves to be dismissed, but unfortunately, especially the first appellate Court, before whom this point was urged, has not considered the materials at all, resulting injustice and therefore, the interference of this Court is an absolute necessity.

11. The learned counsel for the respondent/landlord would argue, responding to the above said submission of the learned counsel for the appellant/tenant that in this case, there was no pleading challenging the notice; that as per the case of the parties before the Courts below, it is onl