OAK, J. :- This special appeal arises out of a suit for ejectment and damages. Shiv Nath brought the suit against Ram Bharosey Lal in the Court of the Munsif of Moradabad on these allegations.

2. The plaintiff is the owner of a certain shop situate in the city of Moradabad. Baldeo Das was the tenant of this shop on a monthly rent of Rs. 10. Baldev Das is dead. Ram Bharosey Lal, defendant is his son. He continued to occupy the shop after his father's death. Defendant's occupation is unlawful. The plaintiff served upon the defendant a notice to quit. But he did not vacate the shop. In fixing a certain machine in the shop, the defendant caused substantial damage to the building. The defendant has wilfully caused a nuisance by fixing this machine in the shop. The plaintiff, therefore, brought the suit for the defendant's ejectment from the shop and to recover a sum of Rs. 60 as damages for use and occupation of the shop.

3. The defendant admitted that he was in possession of the shop. But it was denied that the occupation was unlawful. The defendant pleaded that he was in possession as plaintiffs tenant. It was denied that the defendant received a valid notice to quit. It was denied that the defendant created any nuisance, or caused substantial damage to the building. It was denied that the defendant is liable to ejectment.

4. The learned Munsif held that the charges of nuisance and substantial damage to the building have not been proved. The Court held that the defendant received a valid notice to quit. The Court accepted the plaintiff's case that occupation of the shop by the defendant was unlawful. The Court, therefore, passed in plaintiff's favour a decree for ejectment from the shop, for the recovery or Rs. 60 for damages up to the date of the suit, and for future damages at the rate of Rs. 10 per mensem.

5. The defendant appealed. The appeal was disposed of by the Additional Civil Judge, Moradabad. He agreed with the trial Court that the notice to quit was valid, and that there was not sufficient evidence to prove that the defendant created nuisance or caused wilful damage to the building. Tha Court, however, disagreed with the trial Court as regards the defendant's status. The Court held that the defendant was plaintiff's tenant, and was entitled to protection tinder Section 3 of U. P. Act No. 3 of 1947. He was not liable to be ejected except as provided under Section 3 of the Act No. 3 of 1947. The appeal was, therefore, partly allowed. All that the Court granted to the plaintiff was a decree for Rs. 60 towards arrears of rent. Other reliefs were refused. A second appeal by the plaintiff was dismissed by a learned single Judge of this Court. The plaintiff has, therefore, filed this special appeal.

6. When the special appeal came up for hearing before a Division Bench, the teamed Judges entertained some doubt as to the correctness of a previous decision by another Division Bench in a similar case. The special appeal has, therefore, been referred to this Full Bench for decision.

7. The main question for decision in this special appeal is whether the defendant is a trespasser as alleged by the plaintiff, or is plaintiff's tenant as pleaded by the defendant. This question in its turn depends upon the question whether the defendant's father, Baldeo Das was a tenant at will or a monthly tenant. It is, therefore, necessary to ascertain the status of Baldeo Das at the time of his death. Initially, Baldeo Das obtained the shop in dispute from the plaintiff's predecessor-in-interest, Kedar Nath through lease (Ext. 1) dated 22-3-1941. That lease was for a period of 11 months only, and expired in February 1942. But Baldeo Das continued to occupy the shop even after February 1942. It has been found that Baldeo Das died in July 1951. The question, therefore, arises whether occupation of the shop by Baldeo Das between February 1942 and July 1951 was as a tenant at will or as a tenant from month to month. These two expressions have not