Appeal against order of vacating the premises allowed.

1. The appellants, the owners of the suit property let out the same to the respondent on 15.2.1991 for a period of 11 months. The lease was not renewed. Since the property was constructed within 5 years before the suit was filed, the property was not subject to the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. However, the appellants had file rent control proceedings which were dismissed on 27.7.1993 on the ground that the Tamil Nadu Act 18 of 1960 will not apply. Another notice was given by the appellant on 3.9.1993 calling upon the respondent to vacate the premises on or before 31.10.1993. The respondent did not vacate and so the suit was filed.

2. The respondent attacked the notice as being invalid in law and not according to the provisions to the Transfer of Property Act and also denied the averments in the plaint of wilful default in paying rents.

3. Actually, two suits were filed by the appellant against two tenants. Both the suits were decreed on 10.12.1997, giving each of the defendants two months time to vacate the premises. Both the defendants filed appeals. One appeal was dismissed confirming the decree for possession. But the appeal filed by the respondent herein was allowed and therefore, the present second appeal has been filed. The question of law that arises in this second appeal is whether the occupation of the respondent after the expiry of lease would confer on him the status of a tenant holding over entitled to a notice of termination of tenancy?

4. Mr.P.K. Sivasubramaniam, learned counsel for the appellants submitted that there was no intention on the part of the appellants to continue the lease after 15.1.1992. He referred to Ex.B1 dated 1.8.1991 wherein the appellant had clearly informed the respondent that he should handover possession on the expiry of the lease on or before 15.1.1992 and that they are not willing to extend the lease. Therefore, according to the learned counsel the tenancy came to be determined by efflux of time and thereafter there was no necessity for the appellant to issue any further notice. The learned counsel also submitted that after 15.1.1992 they have not accepted any rents which is why when the appellants had mistakenly filed R.C.O.P.No.1029 of 1992, the respondent had to resort to Section 8(5) of the Tamil Nadu Act 18 of 1960 for deposit of rents. The learned counsel submitted that it was true that the word tenant by holding over was used in the plaint but the conduct of the parties and also the evidence both oral and documentary must be taken into account and by no sketch of imagination could the court have found any material to come to the conclusion that the appellants had recognised the respondent as tenant after 15.1.1992. The learned counsel referred to the following judgments to support his case.

(1) Arulmighu Thandumariamman Thirukkoil v. Erammal , 1998 (1) L.W 236, wherein this court held that when a lease is for a fixed period the lease automatically terminates by virtue of Section 111(a) of the transfer of Property Act and no notice is necessary under Section 106 of the same Act.

(2) Kal Khushroo Bezonjee Capadia v. Bai Jerbal Hirjibhoy Warden and another , AIR 1949 F.C. 124. The learned Judges of the Federal Court have held that, “ the tenancy which is created by the “holding over” of a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral Act.” The following words were extracted.

“ The assent of the landlord which is founded on acceptance of rent must be a acceptance of rent as such and in clear reconginition of the tenancy right asserted by the persons who pays it.”

(3) M/s Sudarshan Trading Company Limited v. MMrs. L. D’ Souza , AIR 1984 Kar. 214, where the Division Bench of the Karnataka High Court have hold that,

“if, after the expiry of the period of lea