The acceptance of rent after the expiration or determination of the lease does not create a new tenancy and does not afford ground for holding that the landlord had assented to a new contractual tenancy.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 03.09.2003 in A.S.No.68 of 2002 on the file of the District Judge, Kanyakumari at Nagercoil confirming the Judgment and Decree dated 22.02.2002 in O.S.No.845 of 1987 on the file of the Principal District Munsif, Nagercoil.)

1. Being aggrieved by the Judgment of the First Appellate Court namely District Court, Kanyakumari at Nagercoil in A.S.No.68 of 2002 dated 03.09.2003, the first defendant, Y.Davidson has preferred this Second Appeal.

2. For the sake of convenience, parties are referred to as per their litigative status before the Trial Court.

3. On behalf of Nagercoil Home Church CSI, a suit was laid against Davidson, Syed Mohamed, Daniel and Chelladurai for recovery of possession of plaint schedule properties - non residential building bearing Door Nos.679 and 680 from the defendants 1, 2 and 4 and for permanent injunction restraining the first defendant from evicting the third defendant from the plaintiff's shop No.681 as per the Judgment in O.S.No.527 of 1984 and for future mesne profits.

4. According to the plaintiff, the lease has expired on 27.10.1986 by efflux of time. It was further claimed that notice was issued to the first defendant on 19.02.1987 terminating the lease in his favour by 27.03.1987 and requesting him to surrender the vacant possession of the leasehold buildings by 28.03.1987. It was further claimed that though the first defendant received the notice on 21.02.1987, he has not surrendered the leasehold buildings.

5. Counteracting to the plaint details, per contra, it was claimed by the first defendant that the tenancy was commenced in the year 1969 for a period of 11 years and 9 months. Thereafter, it was extended for five years from 28.10.1980. From 18.10.1985, for an year, lease was further extended. It was further claimed that though, thereafter, lease was not extended, he continue to be a lessee and has been paying rent to the plaintiff as lessee holding over. Evenafter the issuance of notice dated 19.02.1987, the plaintiff continues to receive rent from the first defendant accepting his status as lessee. Therefore, the possession of the first defendant is legal and as there is no cause of action arose to file the suit and the suit has to be dismissed.

6. The Trial Court framed relevant issues. At trial, PW1 and PW2 have been examined. Exs.A1 to A20 were marked. On the side of the defendants, DW1 and DW2 were examined. Exs.B1 to B11 were marked. Two Documents have been marked as Exs.X1 and X2.

7. After hearing both sides and upon considering the oral and documentary evidence, Trial Court decreed the suit, against which, the first defendant Y.Davidson preferred the First Appeal in A.S.No.68 of 2002, which was allowed in part by modifying the Judgment of the Trial Court as follows.

(i) The suit is decreed for recovery of plaint schedule properties except shop No.681.

(ii) The quantum of mesne profits will be decided in separate proceedings.

(iii) Time for eviction is one month.

(iv) The suit is dismissed regarding the prayer for injunction without costs.

8. Aggrieved by the said Judgment, the first defendant has preferred this Second Appeal on various grounds besides suggesting some substantial questions of law.

9. Pending Second Appeal, the appellant, namely, Y.Davidson has passed away and therefore, his LRs are brought on record as appellants 2 and 3 in this appeal.

10. The learned counsel appearing for the appellants would vehemently argue that the notice which was issued by the plaintiff on 19.02.1987 was received by the first defendant on 21.02.1987. As the rent was being paid continuously by the first defendant, it has to be taken that the first defendant was continuing as a tenant holding over. He would stress upon the fact that after the receipt of the notice, as the plaintiff has been receiving rents from the first defendant an