A notice under section 106 of the Transfer of Property Act is valid if it does not determine the tenancy in present but gives the tenant a reasonable time to hand over vacant possession.

N. Varma, J.

1. In Model Town, Ghaziabad, there is a kothi no. 168 (new no. 84) belonging to the plaintiff respondent Smt. Persandi Devi. IN the southern part of this kothi there was some vacant land measuring 10' towards the East, 11' towards the West, 28' towards the North and 28' towards the South. This vacant piece of land was let out to the defendant-appellant on a monthly rental of Rs. 29/- under a rent deed dated 8-11-1966. The present suit is for the eviction of the defendant-appellant from this land. Though filed in the year 1971 it has not terminated even after the lapse of nearly two decades. Both the courts below have accepted the claim of the plaintiff- respondent and decreed the suit holding that, firstly, the tenancy of the defendant-appellant was validly determined and, secondly, that, in any case, he has illegally sublet the tenanted property to the second defendant Kunj Behari Lal. The second appeal was admitted in the year 198U and it has taken ten years for that appeal to come up for hearing. It is, however, unnecessary to dilate further on how claims which are perfectly legitimate and valid are frustrated by the Laws' delays. Indeed, the lady who riled the suit could not live long enough to see the end of this litigation in her lifetime. She died during the pendency of this appeal.

2. The plaint case is very simple. It was that the aforesaid open piece of land was let out to the defendant, no. 1 the appellant in this court, under the aforesaid rent deed in the year 1966. In breach of the terms of the rent deed, the defendant no. 1 sublet the land to the second defendant. Consequently by means of a notice under section 106 of the Transfer of property Act served on the defendant-appellant on 24-8-1971 the plaintiff determined bis tenancy and asked him to vacate the disputed land. THE defendant appellant neither vacated the land nor paid the arrears demanded under the notice and, therefore, the suit. THE relief claimed in the suit was for possession after the eviction of the defendant-appellant from the disputed land after the removal of the constructions unauthorisedly made by the defendant- appellant.

The defendant appellant alone contested the suit. His defence was that he had not sublet any portion of the disputed land to the second defendant; that as there is a pucaa shop existing over* the disputed land, the suit is covered by the provisions of U. P. (Temporary) control of rent and eviction Act and is consequently liable to be dismissed on that ground alone.

3. The plaintiff filed a replication denying the allegations contained in the written statement of the defendant appellant. In the replication it was reiterated that what was let out was an open piece of land. Under the rent deed, the defendant was authorised to put up only a temporary chhapper supported by 4 or 5 pillars. THE existence of this chhappar would not attract the application of the aforesaid Act.

4. On the pleadings of the parties, several issues were framed by the trial court. The first and second issues are material for our purpose and the same read as under : 1. Whether the plaintiff has let out vacant land to the defendant no. 1 ? 2. Whether the defendant took shop on rent from the plaintiff as asserted in written statement ? The sixth issue was- "whether rent control act is applicable to the disputed property as asserted in para no. 18 of the written statement ?."

The trial court answered all these issues in favour of the plaintiff and against the defendant-appellant. It held that what was let out to the defendant no. 1 was an open piece of land a shop. The U.P. '(Temporary) Control of rent and Eviction Act was hence not applicable to the premises ia suit.

5. These findings have been affirmed in appeal by the lower appellate court. Aggrieved by the decision of the courts below the defendant filed this second appeal.

6. Though as many as six grounds have been mentioned in the memorandum of appeal, and though five questions were