ORDER
K.K. Gupta, J.
1. Mst. Fazal Bibi, respondent-plaintiff filed suit in the Court of City Judge, Srinagar for ejectment of the appellant-defendant from a house situate at Batmaloo Dhobi Mohalla, Srinagar leased out for running a Girls Primary School and also claimed Rs. 980/- as arrears of rent. The rent fixed was Rs. 30/- per month but later on, on the representation made by the plaintiff it was raised to Rs. 49/- per month with effect from 17-5-1969 but the plaintiff wanted enhanced rent of Rs. 150/- per month and she made the same as basis for ejectment. The defendant-State contested the suit on various counts and according to it, the amount of rent was to be fixed after getting the assessment made by the P.W.D. authorities and also the rent could not be increased because the plaintiff had forcibly occupied one room and one verandah of the premises.
2. On the pleadings of the parties, the trial Court raised the following issues :
1. Whether in the absence of a notice Under Section 106 of the Transfer of Property Act. suit is not maintainable? O. P. D.
2. Whether the suit is non-maintainable for want of notice Under Section 80, C. P. C? O. P. D.
3. Whether plaintiff is entitled to ejectment and recovery of Rs. 980/- as arrears of rent from the State? O. P. D.
4. Whether plaintiff has occupied forcibly part of the leasehold and thereby disentitled herself to claim any rent for the tenement? O. P. D.
5. To what relief, if any, plaintiff is entitled?
The plaintiff besides himself examined three witnesses but the defendant did not adduce any evidence. Learned City Judge after hearing both the sides, decreed the suit of the plaintiff regarding her claim for arrears of rent but dismissed her suit with regard to ejectment mainly on the ground that notice under Section 106 of the Transfer of Property Act (T. P. Act, for short) had not been served upon the defendant. The plaintiff filed appeal against the said judgment and decree of the City Judge and the learned Second Additional District Judge, Srinagar, vide judgment dated 29-12-1978 accepted the appeal of the defendant and decreed her suit for ejectment as well. Aggrieved by this judgment and decree, the defendant-State has come up in second appeal before this Court.
3. Vide order of this Court dated 11-11-1980, the case was ordered to proceed ex parte against the respondent as she refused to accept the service.
4. Mr. Bashir, learned counsel appearing for the appellant has argued that under Section 106, T. P. Act a lease of immovable property could be terminated only through a valid notice and such notice must expire with the end of the month of tenancy but the plaintiff in the present case had not served any such notice upon the State-defendant prior to the filing of the suit and non-service of such notice was a fact sufficient to non-suit the plaintiff so far the relief of eviction was concerned. In this regard I have perused the relevant record. The plaintiff has produced on record a copy of notice served by her on the defendant-State under Section 80, C. P.C. This copy has not been proved despite the fact that a specific issue had been raised in this behalf. But even if we take this into consideration, we find that it was a notice under Section 80, C. P. C. requiring the State to raise the rent of the premises or to hand over possession of the building with arrears of rent. Learned 2nd Addl. District Judge has relied upon the concluding part of the notice treating it to be a notice served under Section 106 of the T. P. Act. This last para of the notice stipulates that under the said notice the defendant was informed to hand over possession of the premises on August 1, 1969 or on any other date which the defendant considered to be a date of tenancy.
5. Admittedly, the tenancy in the instant case is to be deemed to be a lease from month to month. It is well settled that a notice terminating a monthly tenancy is essential before a suit can be filed for eviction. A monthly tenancy does not come to an end by mere efflux of time as in the case of a tenancy for a fixed term. In such a case demand of possession or intimation to the tenant determining his tenancy is pre-requisite to the institution of the suit for ejectment. In the case in hand, the plaintiff has served only a notice under Section 80, C. P. C. which is also a mandatory provision. No doubt, there, is no bar for serving a composite notice under Section 80, C. P. C. and Section 106 of the T. P. Act, but the notice should specifically specify the ingredients of both the abovementioned provisions of law. The copy of the notice placed on record does not specify that it is also a notice under Section 106 of the T. P. Act. The plaintiff in her suit has also mentioned specifically in para 5 that she served a notice Under Section 80, C. P. C. upon the defendant. She is completely silent in the plaint regarding the service of notice Under Section 106 of the T. P. Act. Her statement also does not contain the plea that she ever served notice Under Section 106, T. P. Act prior to the filing of the suit. Under such circumstances it cannot be said that the plaintiff had intention, by serving a notice under Section 80, C. P. C., to treat the said notice under Section 106 of the T. P. Act as well. The finding arrived at by the learned Second Addl. District Judge in this regard cannot, therefore, be maintained and is set aside.
6. The appeal as such is accepted and the judgment and decree of the 1st appellate Court, are set aside whereas the judgment and decree of the trial Court are maintained. The parties are, however, left to bear their own costs.
