G. M. LODHA, J. - (1.) THIS is a plaintiff's revision petition in a suit for arrears of rent, which has been partially decreed.
(2.) THE premises in question were let out to the defendant the State of Rajasthan on a monthly rent of Rs. 113/ -. In addition to this, water and electricity charges were to be paid by the defendant tenant. The defendant informed vide letter dated 24-2-1972 and then on March 17, 1972, that the house has been vacated. The plaintiff gave a reply mentioning that the tenancy has not been terminated according to law and that he is not recognizing the vacation of the property. The first appellate court has come to the conclusion that the premises were vacated on 23-2-1972 and information was sent on 24-2-1972. The lower court was of the view that so far as the date of commencement of tenancy is concerned, there is some dispute but since the tenancy was at Will, the landlord cannot claim rent after the vacation of the premises i. e. after 24-2-1972. The intimation of vacation was sent by registered letter Exhibit No. 2. The principal point urged by Mr. Rastogi learned counsel for the plaintiff is that the tenancy was not terminated according to Section 106 of the Transfer of Property Act and therefore, the landlord, can claim rent inspite of the alleged vacation of the premises on 24-2-1972. In support of his conten- tion, Mr. Rastogi relied upon the judgment of this Court in Rameshwar vs. Kameshwar (1), in which in a suit for ejectment and arrears of rent, the question in what circumstances the tenancy at Will, can be construed or considered, it was held as follows : "held that a court cannot make out a new contract for the parties when the terms of the original contract cannot be proved owing to the absence of a property registered document. According to Section 106 T. P. Act (corresponding Sec. 107 of the Jaipur Transfer of Property Act) a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, could be made only by a registered instrument. The actual contract between the parties, whether oral or reduced into writing, was one which the law did not allow to be proved and given effect to in the absence of registration and, therefore, it must be held that there was no valid contract between the parties The case for either party being that the plaintiffs were landlord and the defendants were tenants, the tenancy can only be deemed to be one from month to month terminable on the part of either the leasor or the leasee by fifteen day's notice, expiring with the end of a month of the tenancy, under Section 106 of the Transfer of Property Act. Held further that the view taken by the two lower courts that the defendants were tenants at Will is entirely incorrect. A tenancy at Will can only be created by express agreement terminable at the Will of either party or by implication where no rent is recorved, and it is taken for granted that the occupation is terminable at the request of either party at any time. Where, in a case like the present, the tenancy is created by express contract between the parties, there is no scope for characterising the tenancy as one at Will. Where there is no provision as to the duration of a tenancy, Sec. 106 of the Transfer of Property Act comes into play, and it will be presumed to be one from year to year or month to month according to the purpose of the tenancy, and not a tenancy at Will. " Mr. Rastogi pointed out the mistake which has been committed by the lower court should be corrected in revisional jurisdiction and for that purpose, he relied upon the decision of this Court in Gidumal vs. Ramlal{2) - "the learned Additional District Judge, in my opinion, has acted in complete disregard of the well recognised principles relating to the admissions made in the pleadings and the statements of the parties. When he made out a case, wholly inconsistent with what was set up by the plaintiff in his plaint and the statement I have no doubt that he has committed an illegality or at least a material irregularity which has affected the decision of the case. It is clear that the basic rent of the shop was Rs. 8. 00 per month and it was first let out to Sindhi Vaidraj (Vishandas Sindhi) soon after the construction of the house in which the shop is situated in the year 1943. ''
(3.) IN the instant case the broad feature of the case, which are not id dispute are as under:- (1) That there was no written agreement of the tenancy from which the promise date and terms of the tenancy can be ascertained. (2) That inspite of a registered notice served on the defendant which was sent on 24. 2. 1972, all that the plaintiff is contesting is that the ntoice was not in accordance with section 106 of the Transfer of Properly Act. (3) That there is no dispute and in any case it is not the finding of the lower court that the premises were not vacated on the date mentioned in the notice. On the appreciation of evidence of the parties the first appellate court has come to the conclusion that it is not possible to give a positive finding about the terms of the tenancy. He distinguished and held that the judgment of the above court extracted above reported in W. L. N. 1979 (SC) Page 418 in Gidumal vs. Ram Lal is not applicable. Mr. Rastogi also pointed out that the case has been decided and, therefore, clause (A) of Proviso of section 115 would apply. ;