Gur Sharan Lal, J.
1. This second appeal arises out of a suit for eiectment of the appellant Farooq Ahmad from a shop. The suit of the respondent Muneshwar Bux Singh was decreed by the trial court and the judgment and decree of the trial court were maintained in the first appeal filed by Farooq Ahmad and decided by Sri R. S. Bhargava, District Judge, Barabanki. Farooq Ahmad then filed this second appeal in this Court.
2. The shop was admittedly taken on rent by Farooq Ahmad from Muneshwar Bux Singh. The latter claimed that a lease had been executed under which the tenancy was to terminate on 30-6-1965 unless the landlord agreed to continue the defendant as a tenant, A dispute was raised about the lease but it was held proved and no controversy has been raised in this court about this lease, Exhibit 4, having been executed by the appellant Faropq Ahmad. It is not in controversy that the appellant was retained as a tenant beyond 30-6-1965 and it wasonly on 13-2-1968 that a notice was sent to him for vacating the Shop. The suit was thereafter instituted on 23-4-1968 when Farooq Ahmad did not vacate the shop.
3. Two points arose for determination in the suit on the basis of the pleadings of the parties. One was whether the U. P. (Temporary) Control of Rent and Eviction Act applied to the case or not and the other was whether the tenancy had been duly terminated or the notice given by the plaintiff was invalid or not according to the provisions of Section 106 of the Transfer of Property Act.
4. On the first point the case of the plaintiff was that the: shop had been constructed after 195i and therefore was exempt from the application of the aforesaid Act by reason of Section 1-A thereof. Both the courts below have found that the shop was constructed after 1951. On this point learned counsel for the appellant has argued that though the finding of the courts below is on a point of fact but as a jurisdictional fact even that finding can be questioned in the second appeal. However he has actually not raised any controversy about that finding and has argued on the findings of the lower courts relating to the notice.
5. Coming to the second point, the facts requiring mention are that the plaintiff did not file a copy of the notice which he had sent to the defendant and on the original notice being summoned from the defendant the defendant did not file it in court. The service of the notice on the defendant is not in dispute. What he contended was that the service was effected less than 30 days before the institution of the suit. That plea of fact has been rejected by the lower courts and therefore does not call for consideration in the second appeal, It is to be taken for granted that the service was made more than a month before the institution of the suit. It may also be stated that the plaintiff has not proved the notice by oral statement of its contents. Accordingly the contents of the notice remained wholly unproved. Only its service is an admitted fact.
6. Learned counsel for the respondent relies on a Single Judge decision of this Court in Mast Ram Ram Charan v. Dy. Commr., Bahraich, AIR 1968 All 321 in which it was laid down that where issue of notice under Section 80 of the Civil Procedure Code by the plaintiff is admitted by the defen-dant, the onus to prove the notice to be defective lies on the defendant. The application of this rule to the present case will only mean that the defen-dant, that is the appellant, will have to prove that the notice given by the plaintiff-respondent was not according to the provisions of Section 106 of the Transfer of Property Act. The contention on behalf of the appellant is that the notice given was not a notice terminating the tenancy and, on the other hand, it was only a notice for vacation of the shop. According to the learned counsel for the appellant Section 106 of the Transfer of Property Act, as amended in U. P., requires one month's notice terminating the tenancy; in other words, a notice terminating the tenancy on the expiry of one month from the receipt thereof. If the notice is not one for terminating the tenancy but merely asks for vacation of the rented premises, that would not, according to the learned counsel, fulfil the requirement of Section 106 aforesaid.
Learned counsel relies in this connection on a decision of this Court in Ahmad Ali v. Mohd. Jamal Uddin, 1963 All WR (HC) 490 = (AIR 1963 All 581), It was held by a Division Bench In that case that a notice calling upon the tenant to deliver possession on a particular day after receipt of the notice was no't a notice of termination of tenancy. No decision of this or any other High Court taking a contrary view has been cited before me by the learned counsel for the respondent. As a Division Bench case it is binding on me. The question remains whether the appellant has been able to show that the notice only demanded vacation of the shop. In this connection reliance of the learned counsel for the appellant is placed on paragraph 2 of the plaint and this paragraph recites that a registered notice for vacation of the shop was given to the defendant on 13-2-1968. The plaint, however, proceeds to recite that the period of the notice had elapsed and the relationship of the defendant as tenant came to an end and the plaintiff was no longer treating him as a tenant. The statement that the defendant's relationship as tenant has come to an end was only a conclusion drawn by the plaintiff from the fact of giving of notice and expiry of the period mentioned therein. It was not a statement about the contents of the notice. As to the contents it was stated in the said paragraph 2 that it was for vacation of the shop. In the witness-box also the plaintiff. did not state anything about the contents of the notice or that in that notice he had written that the tenancy would terminate on the expiry of one month. In the witness-box also he simply gave his conclusion or impression that after the expiry of the period oi notice the rela-tionship of landlord and tenant has ceased to exist.
There is no reason why the defendant should not be allowed, in discharging the onus, to rely upon the contents of paragraph 2 of the plaint which Indicates that the notice given was one for vacation of the shop. In the absence of anything to the contrary, the appellant has thus discharged his onus by relying upon the plaintiff-respondent's own averment in paragraph 2 of the plaint. The learned District Judge who decided the first appeal, relied on the aforesaid decision in Mast Ram Ram Charan's case but he did not further take notice of the fact that there was material on the record to show that the notice was a notice of vacation only and that the onus on the tenant to prove that the notice was not a valid notice under Section 106 of the Transfer of Property Act stood discharged.
7. In the result the appeal is allowed and the decrees of the two lower courts are set aside. The suit is dismissed with costs in all the three courts.