JUDGMENT

K.B. Asthana, J. - The only question that arises for determination in this Second Appeal is whether a notice terminating the tenancy of the defendant appellant and asking him to quit on the expiry of thirty days from the receipt thereof was a valid notice.

2. The undisputed facts of the case are that the plaintiff respondent is the owner of a building in which the defendant appellant took on rent rooms in the ground floor including some machinery fitted therein for grinding wheat flour and Dals. A rent at the rate of Rs. 150/- per month was paid. The plaintiff served upon the defendant the notice in dispute terminating the tenancy and asking him to quit on the expiry of thirty days from the receipt thereof. Since the defendant did not comply with the terms of that notice hence the suit for ejectment, recovery of arrears of rent and mesne profits, which has given rise to this appeal. It was averred in the plaint that a deed of lease was executed stating the terms of the tenancy which was a monthly tenancy and was terminable by a month's notice. The plaintiff did file the said document as evidence in the suit but it was impounded as it did not bear the requisite stamp duty and the plaintiff declined to make good the deficiency together with the penalty. Thus the documentary evidence as to the terms of the lease was not available. The courts below, however, took into consideration the admission of the defendant to the effect that he was a tenant on a monthly rent of Rs. 150/- in the premises in suit. The learned Munsif on the question of the validity of the notice held that the lease being for manufacturing purpose would be deemed to be a lease from year to year terminable on six months' notice, hence one month's notice served upon the plaintiff was ineffective. The suit of the plaintiff thereupon for ejectment was dismissed but a decree for recovery of a certain sum was passed as arrears of rent. The plaintiff then appealed. The learned Judge of the court below who heard the appeal reversed the decree of the learned Munsif in so far as the relief for ejectment was concerned and decreed the plaintiff's suit. The learned Judge held that the admission of the defendant that a monthly rent was payable at the rate of Rs. 150/- proved that the duration of the tenancy was from month to month though the object of the tenancy was for manufacturing purpose; hence the notice in question terminating the tenancy and asking the defendant to quit ,on the expiry of period of thirty days was valid and effective. However, the learned Judge of the court below did not pass any decree for recovery of mesne profits. Thereafter a review application seems to have been made before the learned Judge for decreeing mesne profits but that application was rejected. The defendant has now come up in second appeal before this Court questioning the validity of the decree for his ejectment and the plaintiff has filed a cross objection in regard to his claim for mesne profits at the rate of Rs. 150/- per month.

3. I have heard Sarvasri Jagdish Swarup and K.M. Dayal, learned counsel for the defendant appellant and Sri V.K. Burman for the plaintiff respondent.

4. On behalf of the appellant it was contended that the document of lease in which the terms of the contract were reduced in writing having become inadmissible all oral evidence in regard to the proof of its terms was barred under Section 91 of the Evidence Act and the learned Judge of the court below legally erred in relying upon the so called admission of the defendant made in his statement before the court which was nothing but oral evidence in regard to the terms of the lease. The submission was that Section 91 of the Indian Evidence Act barred from consideration as evidence that part of the statement of the defendant wherein he said that a monthly rent of Rs. 150/- was paid which was inadmissible as evidence to support t he finding that the tenancy was monthly. The finding of the learned Judge of t