JUDGMENT V. Bhargava, J. - This special appeal has been filed by the defendants in a suit for ejectment, arrears of rent and damages brought against them by the plaintiff-respondents in respect of two shops, said to have been newly constructed sometime in the year 1957, so that the provisions of the U.P. Control of Rent and Eviction Act did not apply to these shops. 2. The case of the plaintiffs-respondents themselves was that the defendants-appellants were tenants of an old shop for a number of year and that tenancy included with the shop a certain piece of land appurtenant to it. The plaintiffs-respondents wanted to construct some new shops on the vacant land. An agreement was arrived at between the parties which was reduced into writing and was registered. That agreement is dated 9th April 1957. Under this agreement, the plaintiffs-respondents were to permitted to construct five shops on the vacant land. It was agreed that the defendants-appellants would continue to be tenants of the old shop and that they would also be tenants of two other newly constructed shops, and the possession of the two newly constructed shops would be delivered to the defendants-appellants by the plaintiffs-respondents as soon as those shops became ready. Further, the defendants-appellants were to pay rent at the old rate of Rs. 54/3/- per mensem including house-tax upto the date of being put into possession of the new shops, and with effect from the date on which they came into possession of the new shops the rent would be Rs. 64/3/-. The defendants-appellants were also made liable for payment of house-tax. The case of the plaintiffs-respondents was that, in respect of the new shops, the defendants-appellants did not make any payment of rent. In the agreement, the condition was that the tenancy would terminate on non-payment of rent for three months and since rent for more than three months was not paid the tenancy was terminated. Consequently, the plaintiffs-respondents sued for ejectment on the ground of forfeiture, for arrears of rent upto the date of termination of the tenancy, and for damages for subsequent period upto the date of the suit. This is the suit that was decreed by the trial court and the decree has been upheld by the first appellate court as well as by the learned Single Judge in second appeal. This is the suit that was decreed by the trial court and the decree has been upheld by the first appellate court as well as by the learned Single Judge in second appeal. Consequently, the defendants-appellants have come up in this special appeal. There was with this suit another suit for ejectment of these very defendants-appellants from the old shop also. That suit was dismissed on the ground that the defendants-appellants were protected from ejectment because of the applicability of the U.P. Control of Rent and Eviction Act. 3. In the course of hearing of this appeal, learned counsel for the appellants first argued before us that we should hold that there was one single lease in respect of the old as well as the new shops in favour of the defendants-appellants created by the agreement dated 9th April 1957, so that this separate suit cannot be decreed at all. On the date when this agreement was executed admittedly the new shops did not exist. That agreement of 9th April, 1957, has, to be interpreted as containing a lease in respect of the old shop and an agreement to lease out the new shops when they came into existence. The term on which the new shops were to be leased out was also laid down in the agreement. The common case of the parties was that the rent of these new shops was to be Rs. 10/3/- per mensem. On these facts, the question arises as to what was the status of the defendants-appellants qua these two new shops when the defendants-appellants were put in possession of these shops in pursuance of the agreement after the construction of these shops had been completed. 4. Both the lower courts as well as the learned Single Judge have held that, on the facts found in this case, it must be held that the defendants-appellants had the status of tenants at will in respect of these two new shops. On behalf of the defendants appellants, it was urged before the learned Single Judge that they were in fact tenants from month to month and not tenants at will. But this plea was rejected by the learned Single Judge on the ground that this raised a question of fact which had not been pleaded by the defendants-appellants in the lower courts. But this plea was rejected by the learned Single Judge on the ground that this raised a question of fact which had not been pleaded by the defendants-appellants in the lower courts. This view taken by the learned Single Judge, it appears to us, is based on a slight mis-conception as to the pleadings of the parties. In a suit, the pleadings are first put in by a plaintiff and in this case the plaintiffs-respondents themselves in the plaint never pleaded that the defendants-appellants were tenants at will or were licensees. They came with the specific plea that the defendants-appellants were lessees and in fact they have even in their pleadings mentioned the date when according to them the lease in favour of the defendants-appellants terminated. While those were the pleadings on behalf of the plaintiff-respondents themselves, there was no question of any requirement on the part of the defendants-appellant to plead that they were tenants from month to month. In fact the plaintiff-respondents were relying on the agreement dated 9th April, 1957, as bringing into existence a valid lease in favour of the defendant-appellants for a period of 20 years which contained a clause of forfeiture that the tenancy would terminate if rent was not paid for three months. These pleadings, put forward by the plaintiff-respondents were rightly rejected at all the three stages because the agreement dated 9th April, 1957, did not bring into existence a valid lease in respect of the property which did not exist on that day. On the rejection of the principal case put forward on behalf of the plaintiff-respondents, it was for them to show something from which an interference could be drawn as to the status of the defendant-appellants but for this purpose no additional pleading was put forward by the plaintiff-respondents. In these circumstances, it was the duty of the courts themselves, to examine the correct legal position and decide whether the defendant-appellants on the facts proved became tenants at will, licensees or tenants holding on the basis of a month to month tenancy. The defendant-appellants were not required to plead specifically that they were holding under a month to month tenancy. 5. The defendant-appellants were not required to plead specifically that they were holding under a month to month tenancy. 5. In the plaint the plaintiff-respondents themselves pleaded that the defendant-appellants were put in possession in pursuance of the agreement dated the 9th April, 1957, when the construction of these new shops was completed and rent in respect of these shops became due at the rate of Rs/ 10/3/- p.m. The further pleading was that the rent was payable monthly. Since the agreement dated the 9th April, 1957, did not itself bring into existence a lease, it has to be held that, under these circumstance, a lease came into existence when the defendant-appellants were admittedly put in possession of these plot and there was a stipulation, which may be presumed to amount to an oral agreement, that the rent would be payable monthly at the rate of Rs. 10/3/-. Such delivery of possession with an oral agreement would, under Section 106 of the Transfer of Property Act, bring into existence a tenancy from month to month. It is not shown that any other such terms were arrived at as would require that the lease that came into existence at that time should have been registered. The plaintiff-respondents could, therefore, claim their rights only on the basis that the defendants-appellants were holding these shops on a month to month tenancy at the rate of Rs. 10/3/-. That being so, it was incumbent on the plaintiff-respondents to determine the tenancy before bringing a suit for ejectment. Either a notice under Section 106 of the Transfer of Property Act had to be given to determine that tenancy or, if it be deemed that at the time when the lease actually came into existence there was an implied agreement that the lease would be liable to forfeiture on non-payment of rent for three months, it was incumbent on the plaintiff-respondents to give a notice under Section 111(g). In the absence of a notice either under Section 106 or under Section 111(g), the lease in favour of the defendant-appellants could not terminate and, consequently, no suit for their ejectment could lie. Consequently, this special appeal has to be allowed in so far as the decree for ejectment has been granted in favour of the plaintiff-respondents. 6. In the absence of a notice either under Section 106 or under Section 111(g), the lease in favour of the defendant-appellants could not terminate and, consequently, no suit for their ejectment could lie. Consequently, this special appeal has to be allowed in so far as the decree for ejectment has been granted in favour of the plaintiff-respondents. 6. As regards the decree relating to the claim for rent and damages, on the finding that we have arrived at above it is clear that the plaintiffs-respondents are entitled to a decree for rent at the rate of Rs. 10/3/- per mensem from the date on which the defendants-appellants were put in possession upto the date of the suit together with the amount payable as house tax in respect of these two newly constructed shops. 7. As a result we allow this appeal, set aside the decrees passed by the lower courts and dismiss the suit for ejectment of the defendants-appellants. The suit will remain decreed for rent at the rate of Rs. 10/3/- per mensem together with house tax assessed on these two new shops for the period beginning on the date on which the defendants-appellants were put in possession of these shops and upto the date of the suit. In the circumstances of this case, we direct that the parties will bear their own costs throughout.