JUDGMENT : Tudball, J. The plaintiff brought a suit in ejectment against defendants 1-4, making defendant No. 5 also a party to the suit on the following allegations. The predecessor-in-title of the plaintiffs gave a lease of six biswas of land to the predecessor-in-title of the defendant No. 5, on an annual rental of Rs. 21/8. The land was taken for the purposes of a tal on wood-sellers shop. Subsequently with the sanction of the lessor, the lessee built a shop on the land on condition that when called on to vacate, he would remove his materials and give up the land. As a matter of fact on the 25th of September, 1905, the defendant No. 5 executed a registered kabuliat in favour of the plaintiffs, agreeing to pay a rent of Rs. 21/8, annually. No period was fixed. The defendant No. 5 gave a sub-lease orally of the property on payment of an annual rental of Rs. 21/8 to defendants Nos. 1-4. No document, whatsoever, was executed, much less registered in regard to the sub-lease. The plaintiffs sued the defendant No. 5 in 1909, on the basis of a mortgage and obtained a decree, and in satisfaction of that decree the defendant No. 5 transferred his rights and interest in the building in favour of the plaintiffs, on the 27th of May, 1910. He also, on the 24th of May, 1910, relinquished his-rights under the lease in favour of the plaintiffs. The plaintiffs not wishing to retain the defendants Nos. 1-4 on the property as tenants, on the 27th of June, 1910, sent them a registered notice and called upon them to vacate the land before the 1st of August following. The notice was refused and hence the present suit. The relief which the plaintiffs seek is the ejectment of the defendants from the land, plus costs of the suit, plus mesne profits for the future. The defendants Nos. 1-4 raised many pleas, one of which was that no notice whatsoever had been sent. The court of first instance dismissed the suit on the ground that in the events which had happened the defendants Nos. 1-4 were entitled to six months' notice as they were yearly tenants. The lower appellate court has also dismissed the suit but not quite on the same grounds. The court of first instance dismissed the suit on the ground that in the events which had happened the defendants Nos. 1-4 were entitled to six months' notice as they were yearly tenants. The lower appellate court has also dismissed the suit but not quite on the same grounds. The learned District Judge, pointing to paragraph 2 of the plaint, states that it clearly shows that the plaintiffs were treating the defendants Nos. 1 to 4 as their tenants, that having admitted a tenancy between them and themselves they are bound to give legal notice, that as there was no registered lease in favour of the defendants Nos. 1-4, they were entitled to fifteen days notice under section 106 of the Transfer of Property Act, expiring with the end of the month of tenancy, that as the defendant No. 5 surrendered his lease on the 24th, of May, 1910, the under-lessees became the tenants of the plaintiffs from month to month commencing from the 24th of May, 191o, that the notice in the present case, was given on the 27th of June, 1910, and the term of the notice did not expire with the end of the month of the tenancy, and therefore the notice was bad and that the suit was bound to fail. The plaintiffs have come up in second appeal to this Court. The first ground of appeal is that the mere fact that the defendants as sub-lessees continued in possession after Mahadeo's surrender on the 24th of May, 1910, did not create in law a monthly tenancy commencing with the 25th of a month and ending with the 24th of the next month. The next ground is that the defendants have not paid rent nor was there any contract to pay rent on the 24th of each month and therefore presumably any monthly tenancy which existed would be terminable with the expiry of any calendar month. The third ground of appeal is that the defendants never having paid rent and having refused to accept notice are not entitled to insist on any notice at all and can not object to the validity of the notice. The grounds of appeal I take to amount to this that no monthly tenancy has, as a matter of fact, come into existence, by the mere fact that the defendants Nos. The grounds of appeal I take to amount to this that no monthly tenancy has, as a matter of fact, come into existence, by the mere fact that the defendants Nos. 1-4 remained in possession and if any tenancy did come into existence, it can not be said that it began on the 25th of the month and by the mere refusal to accept the notice sent, the defendants were estopped from pleading want of notice. The lower appellate court seems to me to have gone wrong in this case by having assumed that on the surrender by the defendant No. 5 of the lease, a new tenancy arose between the plaintiffs and the defendants 1-4. It says in its judgment:—“that the aforesaid respondents are ‘lessees’ in respect of the land in suit is admitted in paragraph 2 of the plaint. The plaintiffs can not now turn round and say that the defendants are trespassers and not lessees. Under section 106 of the Transfer of Property Act, the respondent's tenancy was, therefore, only terminable by fifteen days notice expiring at the end of a month of the tenancy.” Now an examination of paragraph 2 of the plaint would show that the plaintiffs therein set out the fact of the sub-lease by the defendant No. 5 to the defendants Nos. 1 to 4 on a yearly rent of Rs. 21-8. Then the paragraph runs as follows. Since then the ancestor of the defendants Nos. 1-4, had been and after him the said defendants have been and are still holding the land as tenants. An examination of paragraph 7 of the plaint, which must be read with paragraph 2, shows that the plaintiffs had never assented to the defendants Nos. 1-4 holding on after the surrender by the defendant No. 5. The paragraph runs as — follows:— “As defendant No. 5 surrendered the land of the tal in favour of the plaintiffs and sold the shop situated in the said tal to the plaintiffs, the plaintiff's did not wish to keep defendants Nos. 1-4 in the land of the tal and the shop (as tenants). Hence they served them with a notice.” In my opinion the lower appellate court was not justified in assuming as a matter of fact that after the surrender by the defendant No. 5, the plaintiffs accepted the other defendants as lessees. 1-4 in the land of the tal and the shop (as tenants). Hence they served them with a notice.” In my opinion the lower appellate court was not justified in assuming as a matter of fact that after the surrender by the defendant No. 5, the plaintiffs accepted the other defendants as lessees. If it were correct that they had done so, then I do not think that there can be much doubt that the monthly tenancy commenced on the 25th of May, 1910. But the defendants have nowhere alleged that the plaintiffs had accepted them as tenants on the surrender by the defendant No. 5 nor have the plaintiffs admitted this either. If we accepted the facts as stated by the plaintiffs, the position is one which does not fall within the boundaries of section 116 of the Transfer of Property Act which runs as follows:—“If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rents from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month, according to the purpose for which the property is leased as specified in section 106.” It is an admitted fact by both the parties that no rent has been paid or demanded. The only thing to which the respondents can point as denoting assent on the part of the plaintiffs is the fact that the notice issued by the plaintiffs was only so issued on the 27th of June, 1910, i.e., one month and three days after the surrender by the defendant No. 5. It is urged that this delay is an indication of assent. With this I can not agree. There is no undue delay by the plaintiffs in expressing a desire to get rid of the defendants Nos. 1-4. On the facts as they stand there clearly was no assent. In these circumstances if the facts alleged were correct, then it was quite unnecessary for the plaintiffs to issue any notice to the defendants. The latter were not “tenants” in the strict sense but tenants on sufferance, i.e., persons who lawfully came into possession but unlawfully remain in possession. Such are not entitled to notice at all. In these circumstances if the facts alleged were correct, then it was quite unnecessary for the plaintiffs to issue any notice to the defendants. The latter were not “tenants” in the strict sense but tenants on sufferance, i.e., persons who lawfully came into possession but unlawfully remain in possession. Such are not entitled to notice at all. If the plaintiffs issued notice, that does not convert the defendants into “tenants” strictly so called. In my opinion if the facts stated by the plaintiffs are correct there was no necessity for any notice. The decisions of both the courts below are wrong. The case has not been touched on the merits and will have to go back to the court of first instance. I, therefore, allow the appeal, set aside the decrees of the courts below and remand the case to the court of first instance through the lower appellate court to be re-admitted on the register of suits and to be heard on the merits according to law. Costs in both appellate courts will abide the event.