K.N. Srivastava, J.
1. This is an appeal against the judgment and decree passed by the Additional Civil Judge, Azamgarh allowing an appeal against the judgment and decree passed by the II Additional Munsif, Azamgarh.
2. The facts giving rise to this appeal are as follows.
3. The plaintiff is the owner of a house situated in Rani Ki Sarai, Pargana Nizamabad, district Azamgarh. This house was rented to the defendants on an annual rent of Rs. 100,00. The defendants installed a flour mill in that house. A notice was served on the defendants that they were in arrears of rent for more than a year and had not paid it, therefore, the tenancy was terminated and the defendants were asked to vacate 'the premises. Another notice Ex. A.5 was also served on the defendants before the expiry of the period mentioned in the earlier notice. As the defendants did not vacate the house, therefore, the plaintiff filed this suit for arrears of rent and ejectment of the defendants.
4. The defendants contested the suit and inter alia pleaded that the notice was invalid.
5. The learned trial court held that the earlier notice was waived by the plaintiff and as the suit was filed before the time given in the second notice had expired, therefore, the suit for ejectment was premature. On this finding, the trial court decreed the suit for arrears of rent only. Being dissatisfied, the plaintiff filed an appeal before the lower appellate court. The lower appellate court held that the notice was valid and decreed the suit for ejectment as well. Being dissatisfied, the defendants-appellants have filed this second appeal in this Court.
6. The first point which was argued in this appeal was that even if the finding of the lower appellate court that by Ex. A.14, the notice was not waived by the plaintiff because he served another notice Ex. A.5 is correct, the suit, for ejectment should not have been decreed because the notice Ex. A.14 was against the provisions of Section 106 of the Transfer of Property Act.
7. The main ground on which the notice Ex. A.14 was assailed was that there was a mention in it that the defendants should vacate the premises in the 6th month. The learned counsel for the appellants contended that the parties agreed that the tenancy was year to year and, therefore, six months' clear notice was necessary for ejectment of the defendants and as the defendants were not given clear six months' notice, therefore, the notice was invalid. The relevant words used in the notice was 'aur makan nimlikhit jismen suplog bataur kiraye dar hain chhatwan mahina khali kardijia'. This notice is dated 22-12-1959. According to the learned counsel for the appellants, the defendants were entitled to occupy the house for six months after receipt of the notice and as a clear period of six months was not mentioned in the notice, therefore, on the basis of this notice, the defendants should not have been ordered to vacate the house. The learned counsel for the respondent contended that the words 'chhatwen mahine' did not mean that the defendants were asked to vacate the premises in the beginning of the sixth month. According to the learned counsel for the respondent the expression 'chhatwen mahine' meant that the defendants-appellants were to reside in the house for six months and then to vacate it.
8. The other argument of the learned counsel for the defendants-appellants was that the notice Ex. A.14 dated 22-12-1959 must have been received by the defendants a day or two after it was posted and, therefore, the defendants was not given six months' clear time from the date of the receipt of the notice. According to him, the acknow-ledgment receipt which was filed showed that the notice Ex. A.14 was received by the defendants on 22-12-1959. According to the plaintiff-respondent, the plaintiff meant that the defendants were to reside in the premises till the expiry of six months after the date of the receipt of the notice and then to vacate the house.
In Ahmed Ali v. Mohd. Jamal Uddin, 1963 All LJ 567 = (AIR 1963 All 581), this very question came up for decision before this Court. In this case, the tenancy was from month to month and in the notice which was given to the defendant, it was mentioned that the defendant was to vacate the premises in that case on the 30th day, after receipt of the notice by the defendant of that case. It was argued in the appeal that the expression 'on the 30th day' meant that the defendant was not given 30 days clear time after the date of the notice. While discussing with this aspect of the case, the Division Bench observed as below:
'He used the present tense but it does not mean that he was terminating the tenancy in praesenti, the present tense is quite consistent with the termination of the tenancy in future when the act by which the tenancy is to ter-minate in future is done in praesenti.
Since it was by the act of giving the notice that the tenancy was to be terminated, he could say 'your tenancy is terminated.' The tenancy of the respondent was terminated by the notice given by him and, therefore, on the date on which he gave the notice he could say 'your tenancy is terminated.' What he meant was 'your tenancy is terminated after the expiry of thirty days from the receipt of the notice'; this was made clear by the addition that he should vacate the accommodation on the 30th day after the receipt of the notice. There is undoubtedly a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after 30 days and terminating tenancy after 30 days: in the former case the relationship of landlord and tenant comes to an end at once and the tenant is given a right to remain in possession for 30 days either as a licensee or as a tenant on sufferance, whereas in the latter case he remains a tenant for 30 days. But it is clear from the notice that the appellant did not intend to terminate the tenancy on the date on which he gave the notice; he did not give the respondent a right to remain in possession for 30 days as his licensee or a tenant on sufferance after the termination of his tenancy. He meant to retain him as his tenant for 30 days,'
9. In the instant case, the landlord clearly mentioned in the notice Ex. A.14 that 'aupko makan men bataur kirayadar rakhna manzoor nahin hai', and then it was mentioned that 'Chhate-wen mahine khali kardijia'. A reading of the notice will leave no room for doubt that the tenancy of the defendants was terminated by the notice after expiry of the period of six months and, therefore, it was mentioned that in the 6th month, the defendants were to vacate the house. This did not mean that in the beginning of 6th month, the defendants were to vacate the house. The defendants were given the statutory period of six months to stay in the house as a tenant and then to vacate the house and, therefore, the above argument has no force in it.
10. The view taken in 1963 All LJ 567 = (AIR 1963 All 581) (supra) was affirmed in the Full Bench case of Gorakh Lal v. Maha Prasad Narain Singh, (1963) All LJ 829 = (AIR 1964 All 260 (FB)). Earlier a Division Bench had taken a contrary view in Kashi Prasad Gupta v. Rup Narain, (1962 RD 187). The view taken in Kashi Prasad's case, 1962 RD 187 was overruled by the Full Bench case referred to above. The Full Bench observed as below:
'After the termination of the tenancy the tenant would have no right to continue to remain in possession of the premises and consequently it is obvious that he has to vacate the premises before that point of time. It cannot be the purpose of the law to permit the tenant to remain in illegal possession of the premises even for one moment. There is no provision in law authorising a tenant to continue to remain in possession of the premises without the consent of the landlord after the expiry of his tenancy even for the purpose of vacating the premises. As of necessity, therefore, the tenant has to vacate the premises within the period allowed to him by the law. It is his choice whether to vacate it on the last moment of the thirtieth day or a little earlier according to his convenience. The words used in the present notices asking the tenant to vacate the premises within thirty days from the date of service of the notice only fix the outer limit by which the tenant must vacate. The limit fixed is the last moment of the thirtieth day of the notice.'
Similarly in this case, the landlord terminated the tenancy and wrote to the tenant that after expiry of the statutory period, the tenant was to vacate the premises. As the tenancy was from year to year, therefore, the statutory period was six months and this is why the plaintiff mentioned in the notice 'chhatwen mahine khali kardijia.' This clearly meant that the defendants had option to stay in the house till the expiry of the statutory period or to vacate it earlier. This did not mean that the tenant was asked to vacate the premises as soon as the sixth month started. In view of this, the notice Ex. A.14 was not illegal or against the provisions of Section 106 of the Transfer of Property Act.
11. Both the courts below held that the appellants were in arrears of rent and this matter is concluded by findings of fact. The defendants-appellants was in arrears of rent for more than a year and the suit was rightly decreed for Rs. 125.00 as arrears of rent with interest. The lower appellate court rightly held that the notice Ex. A.5 was served by the plaintiff on the defendants before the period of the notice Ex. A.14 had expired and, therefore, the service of the notice Ex. A.5 did not amount to waiver of the earlier notice.
12. In view of the above, the appeal fails. It is hereby dismissed. Costs easy.