LODHA, J. - (1.) THE only point argued in support of this appeal by the defen-dant-appellants arising out of a suit for eviction and arrears of rent is that since the plaintiff-respondents have failed to prove that a valid notice for termination of tenancy under sec. 106 of the Transfer of Property Act had been given before the institution of the suit, the decree for ejectment should be set aside.
(2.) IN order to appreciate the arguments advanced by the learned counsel for the appellants if would be proper to narrate a few facts giving rise to this appeal. The plaintiff-respondents leased out the premises in question which consist of four shops situated in the town of Karauli to the defendant-appellants on monthly rent of Rs. 28/-by a lease deed dated 4-5-1958. It was mentioned in the lease deed that the tenancy would be for one year and that it would be open to the parties to renew the lease deed. The plaintiffs case as set out in the plaint was that the defendents had committed default in payment of rent on three occasions within 18 months prior to the filing of the suit and the suit shops were also required by the plaintiffs for their reasonable and bona fide personal necessity. It was also averred that the plaintiffs had terminated the defendants' tenancy by notice dated 13-1-1964 which was received by the defendants on 14-l-1964 and that by the said notice the tenancy had been terminated from 4-2-1964. The defendants pleaded inter alia that they had not received any valid notice of ejectment. One of the issues framed in the case was as follows - "issue No. 7 - Did the plaintiffs terminate the tenancy by giving the defendants a valid notice of ejectment dated 13-1-1964 as a result of which the defendants' tenancy came to an end and consequently the plaintiffs are entitled to get the possession of the shops in question ? After recording the evidence produced by the parties the learned Mun-siff and Magistrate, First Class, Karauli held that the shops in question were required by the plaintiffs for their reasonable and bona fide personal necessity and that the plaintiffs had also proved that a valid notice for ejectment had been served on the defendants before the institution of the suit. In this view of the matter the trial court decreed the plaintiffs' suit for ejectment besides granting a decree for arrears of rent. Aggrieved by the judgment and decree of the trial court the defendants filed an appeal in the Court of Addl. District Judge, Gangapur who upheld the judgment and decree of the trial court and dismissed the defendants' appeal. Consequently the defendants have come in second appeal to this Court. Learned counsel for the appellants has submitted that the first appellate court has erred in coming to the conclusion that no notice of ejectment under sec, 106 of the Transfer of Property Act was necessary for the present case. His contention is that after the expiry of one year's period of tenancy there was a fresh contract between the parties as a result of which a month to month tenancy came into existence and therefore it was necessary for the plaintiffs to have proved that they had terminated the tenancy by a valid notice under sec. 106 of the Transfer of Property Act. He has further submitted that the learned counsel for the plaintiff-respondents had conceded in the lower court that the plaintiffs had failed to prove service of a valid notice of ejectment under sec. 106 of the Transfer of Property Act, and in view of this concession made by the learned counsel for the respondents in the lower court the plaintiff's suit was liable to be dismissed. Lastly he has argued that even on merits the plaintiffs have failed to prove the service of notice of ejectment on the defendants. It may not be out of place to state here that so far as the question of validity or legality of the notice is concerned the learned counsel has not advanced any argument with respect to it. I would first take up the question whether it was necessary for the plaintiffs in the present case to have proved that a valid notice of ejectment had been served upon the defendants ? or as held by the lower appellate court no notice of ejectment was at all necessary. The learned Addl. District Judge, Gangapur has held that with the efflux of time of one year contained in the lease deed Ex. 1 the contractual tenancy came to an end and the defendants continued to occupy the premises it question as statutory tenants. Consequently according to the lower court it was not necessary to serve notice of ejectment in the light of the principles laid down by their Lordships of the Supreme Court in Ganga Dutt vs. Kartik Chandra Das (l), and a single Bench decision of this Court, Motilal vs. Pooran Chand (2 ). It is true that after the expiry of a fixed term of tenancy unless there is fresh contract, the tenant is entitled to continue his possession over the leased premises on account of the statutory protection granted by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950; so far there is no dispute. In the present case, however, it is submitted on behalf of the appellants that there was a fresh contract of tenancy between the parties, after the efflux of the fixed period of one year. There is a clause in the lease deed itself that it will be open to the parties to renew the lease deed after the efflux of one year. The contention of the learned counsel for the respondents is that according to this condition a fresh contract would have come into existence only if a fresh lease deed had been executed between the parties but since in the present case no fresh lease deed has been executed it must be inferred that there was no fresh contract. It has been urged on behalf of the respondents that mere acceptance of the rent by the plaintiffs from the defendants on account of the statutory protection afforded to the latter would not amount to entering into a fresh contract of tenancy. In this connection it may by noted that the plaintiffs have nowhere stated in the plaint that the contractual tenancy came to an end after the efflux of fixed period of one year and thereafter the defendants continued to occupy the premises in question only as statutory tenants. That apart, after the efflux period of one year the defendants went on paying the rent and the plaintiffs accepted the same and made entries to that effect on the lease deed Ex. 1 even though no fresh lease deed was executed. Not only that, the plaintiffs thereafter also served a notice of ejectment on the defendants and have put on record a copy of the notice Ex. 2. They have also alleged in the plaint that the tenancy was terminated by service of a valid notice of ejectment. Taking into consideration all these circumstances the only reasonable inference would be that the plaintiffs impliedly by their conduct entered into a fresh agreement with the defendants after the efflux period of the one year to continue the tenancy on the same terms as were incorporated in the lease deed Ex. 1, and a month to month tenancy came into existence. The learned Additional District Judge has not given any reasons as to why a fresh contract after the efflux of the period of one year should not be inferred from the conduct of the parties? As I have already stated above the plaintiffs have not only accepted the rent from the defendants after the period of one year but have entered the same on the rent note on the lease deed Ex. 1, and have also served a notice of ejectment. A perusal of the plaint filed by the plaintiffs also shows that they had been treating the defendants as contractual tenants even after the expiry of fixed period of one year. Coupled with these facts one has also to keep in mind the clause of renewal contained in the lease deed itself. The cumulative effect of all these circumstances in my opinion is that there was a fresh contract of tenancy between the parties after the efflux of one year and a month to month tenancy came into existence. In this view of the matter I set aside the finding of the learned District Judge that no notice of ejectment was necessary in this case. " This brings me to the next important question whether the plaintiffs are estopped from asserting that they had served a valid notice of ejectment on the defendants. The learned counsel for the appellants has been at pains to argue that the counsel for the plaintiff respondents had abandoned issue No. 7 which dealt with the question of notice, before the first appellate court and this concession granted by the learned counsel precludes the plaintiffs from showing that the service of notice of ejectment had been proved. On the other hand, the contention of the learned counsel for the respondents is that a party is not bound by a mistaken admission by its counsel on a point of law. Learned counsel for parties referred to a number of authorities to support their submissions. However, I do not consider it necessary to discuss them as none of them is in point. Learned counsel for the appellants has not touched the question of validity of notice but his contention is that service of notice itself cannot be agitated. The short question therefore that arises for my determination is whether the question of service of notice may be considered as a closed one on account of the concession granted by the learned counsel for the respondents in the lower court? At this stage I think it proper to reproduce the relevant sentence from the judgment of the lower court which incorporates the concession made by the learned counsel for the respondents: "as regards the validity of the notice served on the defendants the learned counsel for the respondent conceded that the service of notice in question was neither proved nor it can be taken as a valid notice. " I fail to see how this concession can be regarded as an abandonment of an issue. The finding on issue No. 7 has been recorded in favour of the plaintiffs by the trial court, and it was assailed by the defendants before the first appellate court. It was argued that neither the notice had been proved nor its service on the defendants. It was also contended that the notice was illegal and invalid. In reply to this argument, it appears, that the learned counsel for the respondents gave in and submitted to the Court that the service of notice in question was neither proved nor can it be taken as a valid notice. In view of this concession the lower court did not pursue the point any further and based its judgment on the alternative submission of the counsel for the appellants that no notice was necessary as it was a case of tenancy for a fixed term. It may be relevant here to state that the plaintiffs had led evidence good, bad or indifferent in support of issue No. 7 and the trial court had accepted that evidence. The learned counsel for the respondents in the lower appellate court thought that the finding of the trial court on this point could not be supported. To me, it appears that the lower court has incorporated in its judgment the opinion of the learned counsel for the respondents that the service of notice in question was not proved and that it was not a valid notice. But it cannot be said that the counsel had given up any part of the plaintiffs' case It is a well established principle that in a court of law it is only the opinion of the Court that counts, leaving aside a few exceptions regarding the admissibility of opinion evidence contained in secs. 45 to 51 of the Evidence Act and no-body-else opinion is binding on the Court. Even opinion of an expert or a non-expert on certain matters made admissible under these sections is not binding on the Court. Consequently the concession made by the counsel for the plaintiffs that the service of notice in question was not proved is nothing more than an opinion. It was the duty of the first appellate court to have given its independent finding on the question whether the notice was proved, though in order forty his finding, he could have made a reference to the concession made by the counsel for the respondents. The lower court, however, dropped the matter at that and after recording the concession made by the learned-counsel proceeded to another point, without giving its own finding on it. Similarly the opinion of the learned counsel that the notice cannot be taken as a valid notice was not the last word for the Court. Learned counsel for the appellant has not directed his attack on the question of validity of notice. Moreover the question whether the notice was a valid one is a question of law an no admission by a counsel on the point can be binding on his client. In view of the conclusion to which I have come on the two points stated above it is necessary to decide whether service of a valid notice of ejectment has been proved by the plaintiffs in the present case? In para No. 4 of the plaint the plaintiffs alleged that in order to terminate the tenancy of the defendants a notice dated 13-1-1964 was sent to them which was received by them on 14-1-64 and in that notice the defendants' tenancy was terminated with effect from 4-2-1964. In the written statement filed by the defendants the reply is that para No. 4 of the plaint is wrong and it is not admitted that a legal notice had been given to them. It is remarkable that nothing has been said in the written statement whether notice dated 13-1-1964 was received by the defendants even though they have said that the notice was not a valid one. P. W. 1 plaintiff Kesavdeo has come in evidence and has stated that the plaintiffs had given notice Ex. 2. the postal receipt of which is Ex. 4 and the acknowledgement receipt is Ex. 3. Then again P. W. 5 Satyanarayan, who is Kesavdeo's sister's husband has stated that on his asking Kesavdeo had given a notice to the defendants for which he had met his Advocate, who had written out the notice and signed it in his presence. A copy of that notice is Ex. 2 and the original notice was sent by registered post. No evidence has been produced on behalf of the defendants in rebuttal of the evidence produced by the plaintiffs. The postal acknowledgement bears the signature of one Motilal on behalf of Onkarlal Kalyan Prasad defendants. It is true that there is no evidence on the record that the postal acknowledgement bears the signature of Motilal son of Onkarlal. It is also true that the copy of the notice Ex. 2 placed on the record does not bear the signature of the learned counsel, who is alleged to have signed the original notice sent to the defendants. It must also be said that the statement regarding service of notice has not been made by the plaintiffs in the manner in which it should have been made but one cannot lose sight of the fact that the defendant himself did not deny the question of service of notice in his written statement even though there was a specific pleading to that effect in the plaint and has not even put himself in the witness-box to deny the allegations made by the plaintiffs in the plaint as well as in the evidence led by them. In these circumstances I find myself in agreement with the trial court that the service of notice of ejectment, a copy of which has been placed on the record, and marked Ex. 2, is proved. It may also be stated here that the postal receipt Ex. 4 as well as the postal acknowledgement Ex. 3 bear the seals of the Post Office and there is nothing contained in them nor any thing has been pointed out to me on the basis of which I may hold that they are not genuine documents. Thus my conclusion is that the plaintiffs have by preponderance of evidence succeeded in proving the service of notice of ejectment on the defendants. The notice appears to be a valid notice inasmuch as the tenancy has been terminated from 4-2-1964 which is also the date of commencement of the tenancy and in fact the validity of the notice was not called into question by the learned counsel for the appellants and in my opinion rightly so because there is no room for such an argument. The net result of the fore-going discussion is that there is no force in this appeal and it is hereby dismissed. But in the circumstances of the case I leave the parties to bear their own costs.
(3.) THE appellants are granted three months' time to vacate the premises in question. Learned counsel for the appellants prays for leave to appeal to Division Bench. However, I do not consider it a fit case to grant leave to appeal. The prayer is disallowed. .;