JUDGMENT:

The appellant is the defendant in O.S.No.928 of 2014. The respondent herein, being plaintiff filed suit O.S.No.928 of 2014 seeking ejectment of the defendant and to deliver vacant physical possession of the schedule property. The appellant herein filed suit O.S.No.425 of 2013 seeking injunction. Both the suits were clubbed and tried together. Evidence was recorded in O.S.No. 928 of 2014.

2. By common judgment dated 18.10.2019, the trial Court dismissed suit O.S.No.425 of 2013 and decreed suit O.S.No.928 of 2014 with costs. The appellant/defendant was granted three months time to vacate the premises. Trial Court also held that plaintiff is also entitled to recover Rs.85,400/- from the defendant towards arrears of rent. It was further held that the plaintiff has to file a separate application seeking damages.

3. Aggrieved by the judgment and decree in O.S.No.928 of 2014 the tenant/defendant filed A.S.No.439 of 2019. Against the judgment and decree in O.S.No.425 of 2013, A.S.No.438 of 2019 was filed. The first appellate Court vide judgment dated 14.06.2021 dismissed the appeals confirming the judgment of the trial Court. Against the judgment and decree in A.S.No.439 of 2019, the present second appeal was filed. No appeal was filed against the judgment and decree in A.S.No.438 of 2019.

4. This Court admitted second appeal on 04.08.2021 and framed the following substantial questions of law:

1) Whether the Courts below are justified in ordering eviction without considering whether the appellant is a tenant holding over and if found so, whether the notice issued under Section 106 of the Transfer of Property Act is valid?

2) Whether the lease which is oral is to be treated as a lease from month to month or the same is a lease for a fixed period and whether the quit notice is to be given on the basis of the nature of the lease or otherwise?

5. This Court granted interim stay of all further proceedings in E.P.No.64 of 2020 in O.S.No.928 of 2014 subject to the petitioner depositing Rs.85,400/- towards arrears of rent and Rs.19,992/-

towards suit costs.

6. The respondents entered appearance and filed counter vide I.A.No.2 of 2021 to vacate the interim stay granted by this Court. When I.A.No.2 of 2021 was listed before the Court, learned counsel on either side requested the Court to hear the second appeal itself.

Accordingly, the second appeal itself is taken up for hearing.

7. The averments in O.S.No.928 of 2014, germane to decide the appeal, are as follows:

The plaintiffs are the absolute owners of the plaint schedule property; that the 1st plaintiff purchased the property under a registered sale deed dated 02.05.2007 and let out the schedule property to the defendant for a period of five years from November, 2007 on a monthly rent of Rs.11,000/-. According to the plaintiffs, lease is oral and no advance amount was received. As per the terms and conditions agreed, rent shall be payable on or before 5th of every succeeding month, however, the defendant always delayed in payment of rents; that the rent payable from February, 2012 to September, 2012 was Rs.16,500/- per month; that the lease was expired by October, 2012 by afflux of time and there was neither express nor implied extension of lease; that the defendant failed to vacate the suit schedule property by the end of October, 2012 and also fell in arrears of rent of Rs.4,800/- per month for four months between February, 2012 to January, 2013 and postponing the payment of arrears of rent; that the rent has to be increased at least 10% every year; that since oral lease was expired by afflux of time, defendant is not entitled to any quit notice, however, by way of abundant caution, quit notice dated 23.04.2014 was issued demanding the defendant to vacant the schedule premises by 31.05.2014 by paying arrears of damages/rent; that the defendant filed suit O.S.No.425 of 2013 on the file of VI Additional Senior Civil Judge, Visakhpatnam against Sampathirao Karunasri, Sampathirao Rohit and Sam