S. H. SHETH, J. ( 1 ) BOTH these Second Appeals have been filed by the The parties to both the appeals are Common. The landlord filed Regular Civil Suit No. 70 of 1962 in the Court of the Civil Judge Senior Division at Surat praying for possession of the suit permises (a building with power-looms installed in it) and for rent. ( 2 ) THE learned trial Judge dismissed the suit on the ground that the landlord had not served statutory notice upon the tenant. The landlord appealed to the District Court. The learned District Judge allowed the appeal set aside the decree passed by the learned Trial Judge and passed in favour of the landlord decree for possession and rent. ( 3 ) IT is under these circumstances that the tenant against whom for possession has been passed by the lower Appellate court has filed Second Appeal No. 157 of 1967. The tenant filed Civil Suit No. 252 of 1962 against the landlord for a mandatory injunction directing him to execute the necessary lease-permit in his favour in order to enable him to run the power-looms. A lease-permit is one which is required to be executed by an owner of power-looms in order to obtain from the Excise Department licence to run the industry. Since the landlord did not execute the lease-permit the tenant filed Civil Suit No. 252 of 1962. The learned Trial Judge decreed the tenants suit. The landlord went in appeal to the District Court. The learned District Judge recorded the finding that since he was passing decree for possession against the tenant in the other suit he could not sustain the decree passed against the landlord in this suit. He therefore set aside the decree and dismissed the suit. ( 4 ) IT is that appellate decree which is challenged by the tenant in Second Appeal No. 158 of 1967. ( 5 ) COMMON questions of law and facts arise in these two Second Appeals. I therefore proceed to decide them by a common judgment. There are certain undisputed facts which must be recorded. The landlord had let out to the tenant the suit premises a factory for manufacturing purposes-in terms of the rent-note Ex. 25 executed on 25th January 1955 for a period of one year. Rent was accepted by the landlord after the expiry of the period of lease. There are certain undisputed facts which must be recorded. The landlord had let out to the tenant the suit premises a factory for manufacturing purposes-in terms of the rent-note Ex. 25 executed on 25th January 1955 for a period of one year. Rent was accepted by the landlord after the expiry of the period of lease. It is not in dispute that the provisions of Bombay Rent Act do not apply to the suit permises. ( 6 ) THE only question which Mr. Bhatt appearing for the tenant has raised is this:--WHETHER the lease was renewed from year to year after the expiry of the original period of one year and whether the landlord was entitled to file the suit in terms thereof. [ His Lordship after discussing the evidence held that if the tenant infringed any of the first twelve clauses of the lease the landlord would be entitled to recover possession from the tenant. His Lordship further observed:-- ] ( 7 ) HAVING been confronted with this position Mr. Bhatt has argued that the tenant as one holding over after the expiry of the original period of lease was not liable to be evicted from the suit premises without notice because through the lease on account of the acceptance of rent by the landlord was renewed from year to )rear the term relating to the tenants liability of being evicted without notice was not renewed and it could not be a term for the tenant holding over. For canvassing this proposition he has relied upon sec. 116 of Transfer of Property Act and the decisions bearing thereon. He has then proceeded to argue that if the said term was not renewed there was no contract to the contrary within the meaning of sec. 106 of the Transfer of Property Act and that therefore the tenant was entitled to notice under sec. 106 before he was evicted from the suit premises. The question which has therefore arisen for my decision is whether the term relating to the tenants liability of being evicted without notice was renewed under sec. 116 or not. If it was renewed the landlords suit must succeed for he was under no obligation to serve statutory notice under sec. 106 on the tenant on account of a contract to the contrary within the meaning of the said section. 116 or not. If it was renewed the landlords suit must succeed for he was under no obligation to serve statutory notice under sec. 106 on the tenant on account of a contract to the contrary within the meaning of the said section. If it was not renewed the landlords suit must fail for want of statutory notice under sec. 106. If the said term was renewed then since the tenant had committed breach of the term relating to payment of rent he would be liable to be evicted both in terms of the contract between the parties (rent-note Ex. 52) and also in terms of clause (g) of sec. 111 of the Transfer of Property Act. ( 8 ) IN support of his proposition that the term relating to the tenants liability of being evicted without notice was not renewed Mr. Bhatt has relied upon the decision of the Calcutta High Court in Dasarathi Kumar v. Sarat Chandra Ghose and another A. I. R. 1934 Calcutta 135 wherein the expression in the absence of an agreement to the contrary has been construed. In that case there was a lease which the lessor had granted to the lessee for manufacturing purposes. The period of lease had expired prior to suit. One of the terms contained in that lease was that the lessee was liable to be ejected without notice. After the expiry of the lease the lessor served upon the lessee the notice to quit. It was found by the District Court that the notice was necessary but that the notice which was served was insufficient. The District Court therefore dismissed the suit. This question was raised before the Calcutta High Court in second appeal and it was argued on behalf of the lessor that the lease had expired and that the holding over by the tenant could be on the same terms as the original lease contained. In that view of the matter it was further contended that the lessee under those circumstances was liable to be ejected without notice because he was not entitled to any notice under the original lease. On that basis it was argued in that case that there was an agreement to the contrary between the parties. In that view of the matter it was further contended that the lessee under those circumstances was liable to be ejected without notice because he was not entitled to any notice under the original lease. On that basis it was argued in that case that there was an agreement to the contrary between the parties. The Calcutta High Court turned down that argument and held that the expression in absence of an agreement to the contrary must refer to an agreement as to the terms of holding over. In that case the lessor had accepted rent after the expiry of the original period of lease. Acceptance of rent by the landlord may lead to a fresh contract or to a tenant holding over. It appears that the Calcutta High Court has in that decision distinguished between fresh contract and holding over and has decided the case on the basis that a fresh contract had come into force between the parties. The following passage from that decision points to that conclusion. THERE can be no question that the words in the section in absence of an agreement to the contrary must refer to an agreement as to the terms of holding over. This point was decided so far back as in the year 1904 by Sir Francis Maclean C. J. Bodilly J. and Mookerjee J. in the case of Troilakya Nath Roy Vs. Sarat Chandra ( (1905) 32 Cal. 123=8 C. W. N. 901 ). The Chief Justice in delivering the judgment of the Court pointed out that the words in absence of an agreement to the contrary in Sec. 116 must mean an agreement as to the terms of holding over renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Sec. 106. In our opinion as soon as the rent was accepted it was a new contract of tenancy from year to year according to the purposes for which tenancy was taken. That being so we are of the opinion that the District Judge took a correct view of the case. IT appears to me that the Calcutta High Court decided the case on the footing that there was a new contract between the parties and not on the basis of the terms of holding over. In the instant case Mr. That being so we are of the opinion that the District Judge took a correct view of the case. IT appears to me that the Calcutta High Court decided the case on the footing that there was a new contract between the parties and not on the basis of the terms of holding over. In the instant case Mr. Bhatt has argued only on the terms of holding over and has not contended that there was a new contract between the parties as distinguished from holding over. The principle laid down in the aforesaid case by the Calcutta High Court cannot therefore be applied to the instant case. ( 9 ) TROILAKYA Nath Roy v. Sarat Chandra 8 Calcutta Weely Notes 901 upon which reliance was placed by the Calcutta High Court in Dasarathi Kumars case (supra) was decided by a Full Bench of the Calcutta High Court. It does not have much relevance in the instant case except that it has laid down that the expression in the absence of an agreement to the contrary means an agreement as to the terms of holding over. That view has been followed later by the same High Court in Dasarathi Kumars case (supra ). ( 10 ) MR. Christy has relied upon Nandlal Das v. Monmatha Nath Ghose and others A. I. R. 1962 Calcutta 597. In that case under a written lease premises were let out by the lessor to the lessee. The lease contained a term by which the lessee was permitted to underlet the whole or any part of the. . demised premises to one or more tenants as the case may be. The lease expired on 31st December 1950 and with effect from 1st January 1951 the lessee became a tenant holding over. During the subsistence of the original lease the lessee had sublet different portions of the demised premises to different sub-tenants who continued to be in possession of their respective premises even after the expiry of the period of the original lease. It was contended on behalf of the lessor that upon the expiry of the original lease his written consent permitting the lessee to underlet the premises came to an end. The lessee had also inducted some sub-tenants after the expiry of the original lease. It was contended on behalf of the lessor that upon the expiry of the original lease his written consent permitting the lessee to underlet the premises came to an end. The lessee had also inducted some sub-tenants after the expiry of the original lease. In respect of that act of the lessee the lessor contended that since those sub-tenants had been inducted for the first time after the expiry of the original lease with which his written consent permitting the lessee to underlet the premises had also expired the lessee had underlet parts of the demised premises without his written consent. The lessor therefore sought to eject the lessee from the demised premises under sec. 16 (3) of the West Bengal Premises Tenancy Act 1959 on the ground that the lessee had underlet the demised premises without his written consent. Under these circumstances the following question arose before the Calcutta High Court. THEREFORE the question which falls for our decision is what holding over really means Does it mean that the lease that was being held under the Deed is renewed that is continues to have effect on the same terms and conditions or does it mean that by holding over the same contract does not continue and only a new tenancy is created. IT may be remembered that unless the lessee whose original lease had already expired and who was therefore a tenant holding over succeeded in showing that he had been holding over on the same terms and conditions as the original lease contained he would be liable to be evicted for having underlet the demised premises without the written consent of the lessor. Having relied upon Lowther v. Clifford 1927-1 KB 130 and sec. 116 of the Transfer of Property Act this is how the Calcutta High Court answered the above question. WE therefore accept the contention of Dr. Gupta and hold that when the lessee after the expiry of the period fixed by the document of lease holds over under sec. 116 of the Transfer of Property Act it is the lease that is renewed with all the terms and conditions contained in the document of lease which are not inconsistent with annual tenancy. (Emphasis mine)THEREFORE in that case the lessee got the benefit of the written consent of the lessor to underlet the demised premises even after the original lease had expired. (Emphasis mine)THEREFORE in that case the lessee got the benefit of the written consent of the lessor to underlet the demised premises even after the original lease had expired. Applying that principle to the facts of the instant case I find that the tenant has been holding over on the same terms and conditions as the original lease contained and that therefore he as a tenant holding over is liable to be evicted without notice under clause 13 of the rent note Ex. 52. This is a more apposite case and the principle laid down therein demolishes the contention raised by Mr. Bhatt that under section 116 of the Transfer of Property Act the defendant as a tenant holding over after the expiry of the rent-note Ex. 52 holds the suit premises on the same terms and conditions as in rent-note Ex. 52 minus the term relating to his being liable to be evicted without notice. In my opinion if the original lease contains a term providing for the eviction of the lessee without notice it remains into force upon the renewal of the lease during the period the lessee is a tenant holding over. ( 11 ) MR. Bhatt has invited my attention to another decision in Kodali Bapayya and others v. Yadabyalli Venkatraratnam and others A. I. R. 1953 884 In that case there was a lease of agricultural lands and principal question which was raised related to the construction of the grant. We are not concerned with that part of the aforesaid decision in the instant case. It was next contended in that case that the notice served upon the lessees was not sufficient and that the suit should fail for want of statutory notice to the lessees. The original lease contained a term that the lessees were liable to be evicted without notice. The lease had expired and the lessees had become the tenants holding over. In answer to this contention raised on behalf of the lessees it was further argued on behalf of the lessor that he had served upon the lessees valid notice. Madras High Court in paragraph 14 of the report has recorded the following finding on this point. WE are accordingly of the opinion that there has been proper notice to the defendaand that therefore their contention that the suit is not maintainable for want notice should be rejected. Madras High Court in paragraph 14 of the report has recorded the following finding on this point. WE are accordingly of the opinion that there has been proper notice to the defendaand that therefore their contention that the suit is not maintainable for want notice should be rejected. IT was also contended in the alternative on behalf of the lessor that statutory provisions relating to notice in sec. 106 did not apply leases and that therefore no notice was necessary to be served upon the lessees. Madras High Court upheld that contention raised on behalf of the lessor but held that though the statute did not require any notice to agricultural lessees a reasonable (as distinguished from statutory) notice should be served upon them because equity justice and good conscience required it. On behalf of the lessor the argument was raised in the following terms (vide paragraph 16 of the report ). HIS contention is that as the defendants are tenants of agricultural lands sec. 106 does not in terms apply and that the requirements of law are satisfied if in fact there is reasonable notice. AFTER having reviewed a few decisions on the point Madras High Court answered this contention in the following terms (vide paragraph 18 of the report ). WE are of the opinion that in this case there was reasonable notice and that on this ground also the plaintiff is entitled to succeed. HAVING held in favour of the lessor on the aforesaid two aspects of the notice it was absolutely unnecessary for it to decide whether the term on which a tenant holds over would include the term relating to his liability of being evicted without notice if the original lease had contained such a term. Yet Madras High Court decided it and recorded its finding in the following terms after having reviewed a few decisions on the point (vide paragraph 15 of the report ). in our opinion having regard to the authorities referred to above it must be held that terms as to notice contained in an expired lease should not be held to be terms of the lease arising by holding over under sec. 116. THE decision on this last point is obiter dictum. in our opinion having regard to the authorities referred to above it must be held that terms as to notice contained in an expired lease should not be held to be terms of the lease arising by holding over under sec. 116. THE decision on this last point is obiter dictum. After having held in favour of the lessor on two aspects of the contention relating to notice it was not necessary for Madras High Court to decide this third aspect. It has therefore no force of a precedent. It has indeed for recording the said finding relied upon the decisions of Calcutta High Court in Dasarathi Kumars case (supra) and in Troilakya Nath Roys case (supra ). I am unable to read these two decisions of Calcutta High Court in the manner in which Madras High Court has read. Troilakya Nath Roys case (supra) is not much helpful for the purpose except in so far as it construes the expression. . . . in the absence of an agreement to the contrary occurring in sec. 116. Assuming that the decision in Dasarathi Kumars case (supra) lays down the proposition which Mr. Bhatt canvasses for and for which Mr. Bhatt finds support in the obiter dictum of Madras High Court in Kodali Bapayyas case (supra) it is difficult to accept it for the following reasons. When both these decisions are read together what emerges from them is that the term as to liability of being evicted without notice cannot really be a term of a lease. Under a lease a lessor parts with possession of his property; a lessee enters into it and agrees to pay rent for holding and enjoying possession; the lessee enjoys security of his possession for the period fixed by the leased the lessor ensures to himself the reasonable and prudent use of his property by his lessee and has from him a contractual assurance relating to delivery of possession to him at the end of the fixed period. If all these terms can be terms of a lease it is difficult to understand why a term dispensing with the statutory notice cannot be a term of the lease. Read in light of the language of sec. 106 it is at least during the subsistence of the lease a contract to the contrary. If all these terms can be terms of a lease it is difficult to understand why a term dispensing with the statutory notice cannot be a term of the lease. Read in light of the language of sec. 106 it is at least during the subsistence of the lease a contract to the contrary. If it is not a term of the lease is it an independent contract incorporated in a lease and having no relation thereto ? It is difficult for me to say that it has no relation to the lease and to the demised premises If it has such a relation-and in my opinion it is inseverable-it is difficult to divorce it from lease and to read it as an independent contract. If it is an independent contract it means that the document of lease contains two independent contracts-one relating to demise of premises and another relating to liability of the lessees eviction without notice. In the first instance I am unable to subscribe to the view that they are independent contracts having no relation to each other Secondly since both relate to the demise of premises they are inseverable from each other and are integral parts of one and single contract of lease. If this is the correct view it is difficult to accept the further proposition that though a tenant holding over is subject to all other terms of an expired lease he is not subject to this term because with the expiry of the original lease it expires but with its renewal within the meaning of sec. 116 it is not renewed. Firstly there is nothing in the language of sec. 116 which warrants this conclusion. Secondly if a contractual tenant is subject to such a term and if a tenant holding over after the expiry of the lease is not subject to it does a tenant holding over stand on a higher pedestal and enjoy a better position than a contractual tenant ? I think it is a contractual tenant who in law occupies the highest and best position. The rest are slightly less than he A tenant holding over certainly enjoys an inferior status. In any case he can be equal to him in status but cannot be superior to him. Even if he is equal to a contractual tenant he must be subjected to this term of the contract. The rest are slightly less than he A tenant holding over certainly enjoys an inferior status. In any case he can be equal to him in status but cannot be superior to him. Even if he is equal to a contractual tenant he must be subjected to this term of the contract. To exonerate him from the liability of such a term is to elevate him to a status higher than one a contractual tenant enjoys. I do not think it can be done. Mr. Bhatt has not argued that anything else had transpired between the landlord and the tenant by which the landlord had agreed to give up this term. ( 12 ) FOR the reasons stated above I am of the opinion that the tenant could be evicted from the suit premises without serving upon him statutory notice under sec. 106 because as a tenant holding over he was bound by clause 13 of the rent note Ex. 52. 1 therefore find no infirmity in the decree passed by the learned Appellate Judge. .