R.N. Misra, J.
1. The defendant is in appeal against the affirming decision of the learned Subordinate Judge. Cuttack in a suit for ejectment and arrears of rent.
2. Admittedly, the plaintiff is the owner of the house and the defendant is a tenant under him. The plaintiff sued for ejectment as also for recovery of arrears of rent of three months.
3. One of the defences was that there was no valid notice served determining the lease. On that plea Issue No. 3 was raised to the following effect:
'Is the notice served by the plaintiff on the defendant valid and legal?'
In paragraph 3 of the plaint the plaintiff had pleaded that the term of the tenancy was that whenever the plaintiff would ask the defendant to give up possession of the house, he would vacate without protest. In paragraph 4 of the written statement it was pleaded:
'That the plaintiff cannot sue for eviction of the defendant from the disputed properties as he has not determined the relationship of the lessor and lessee between them either in the plaint or in his notice.'
4. The learned trial judge found that the notice issued by the plaintiff to the defendant was not one complying with the requirements of section 106 of the Transfer of Property Act. He then proceeded to examine the case of the plaintiff that parties had contracted that no notice would be necessary for determination of the lease and. therefore, section 106 of the Act was not applicable. He accepted that contention and therefore decreed the suit both for eviction as also for realisation of arrears of rent.
5. The appeal of the defendant was dismissed by the learned Subordinate Judge.
6. The short question raised by the defendant in this appeal is one about the correctness of the judgments of the courts below that notice under section 106 of the Transfer of Property Act was not necessary for the present suit for eviction.
7. Section 106 of the Transfer of Property Act provides:
'In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and (either be sentby post to the party who is intended to be bound by it or be tendered or delivered personally to such party), or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
8. The law as indicated in Section 106 of the Act is meant to apply to all cases except those where there is a contract to the contrary. The burden lay on the plaintiff to establish that notice under Section 106 of the Act was not necessary on account of the fact that there existed a contract to the contrary in respect of the tenancy in dispute. The terms of the lease were oral and, therefore, clear terms are not available for the purpose of interpretation.
Mr. Das, learned counsel for the appellant contends that the plea relating to this part of the agreement of tenancy as contained in the plaint only shows that the defendant had agreed to vacate possession as and when the plaintiff required it. The plea raised does not indicate that waiver of notice under section 106 of the Act had been stipulated. On the other hand. Mr. Rath for the respondent contends that the plea itself is clear enough to show that parties had contracted out of section 106 of the Act and a contrary intention had been indicated. Mr. Rath relied upon three decisions in support of his contention. The first one is the case of Moosa Kuttv v. Kovilakath Thekke. AIR 1928 Mad 687. The second one is the case of Subramania Iver v. Ammu. AIR 1964 Ker 218. The third one is the case of Khuda Bakhsh v. Abid Hussain reported in (1909) 3 Ind Cas 873 (Oudh). In the Madras case the lease was oral and one of the conditions was that the tenant would surrender the house whenever required. The plaintiff's plea that this amounted to waiver of notice was accepted. In the Kerala case, the principle enunciated was that the contract to the contrary for the purposes of section 106 of the Transfer of Propertv Act need not be an express one; it can be implied. In the other case cited by Mr. Rath, the term stipulated was that whenever the owner of the house would like to have the house and the other appurtenances, the tenant would vacate the same and would have no sort of objection. This was tantamount to a contract to the contrary.
The position in law seems to have been properly stated by Shah, C. J. in the case of Keshavlal v. Bai Aiawali. AIR 19'53 Sau 119. There was a rent note stipulating the condition that the tenant was to deliver vacant possession to the landlord without delay when and at whatever time the landlord made a demand for vacating the leased portion. The Division Bench held:
'In our view this condition merely means that the tenancy is not for a fixed term, but it does not amount to contract to the contrary to which the provisions of section 106. Transfer of Property Act are subject.'
In my view this seems to be the actual position. What was stipulated in the rent deed in the Saurashtra case is what has been pleaded in the plaint here.
9. Section 106 of the Transfer of Property Act has been incorporated as an equitable provision so that a tenant may not be taken by surprise. It has been left to the parties, however, to avoid application of section 106 of the Transfer of Property Act by entering into a contract to the contrary. As I have already said, in a case where requirement of notice is asked to be over-looked by the plaintiff, it is for him to say that there was a contract to the contrary and the tenant as defendant was therefore,, not entitled to notice. In view of the plea raised in the plaint and the evidence on record. I am not satisfied that there has been a contract to the contrary as required under section 106 of the Act. Thus notice under Section 106 was a condition precedent to the suit and the learned trial judge has found that the notice in this case was not in accordance with law. In view of this conclusion of mine. I must hold that the suit is not maintainable so far as the relief for ejectment is concerned.
10. There is no challenge in respect of the decree for arrears of rent. That shall be sustained. Mr. Das made a grievance that the suit should have been properly valued at Rs. 375/- Rs. 300/- being the twelve month's rental to be the valuation of relief of electment and Rs. 75/- being the three month's arrears of rent should have been added to it. The plaintiff has without any jurisdiction, valued the suit at Es. 500/-. I would direct that the plaintiff shall now be entitled to a decree for Rs. 75/- with proportionate costs thereon and the relief of eviction shall be dismissed.
11. The second appeal is partly allowed.