JUDGMENT - S.K. DESAI, J.:---This Revision Application has been preferred against the judgment of the learned District Judge, Aurangabad, in Rent Appeal No. 38 of 1972. A few facts may be stated. The petitioner before me was the plaintiff in Rent Suit No. 67 of 1967 in the Court of the rent controller, Jalna. This was an application under section 15(2) of the Hyderabad House, (Rent, Eviction and Lease) Control Act, for eviction of the Defendants who are the three tenants before me from Godown No. 35, Municipal No. 3859 (New) and 3792 (Old) situate at New Monda, Jalna. The principle ground on which relief was claimed was that the defendant were wilful defaulters and hence liable to be evicted. The application was under the provisions contained in section 15(2)(i) of the aforesaid Hyderabad act. In the application, the Plaintiff referred to a notice on the defendant issued under section 106 of the Transfer of Property Act on 1st August, 1967 by which notice the plaintiff purported to terminate the tenancy of the defendants. By the said notice the Defendants were called upon to vacate the premises by the end of August 1967. It appears from the proceedings before the Rent Controller that after the evidence had been led on behalf of the Plaintiff, time was given to the to the Defendant to lead evidence, if any, as also to pay up the arrears of rent. Neither opportunity was avoided of by the Defendant and ultimately the Rent Controller, Jalna, by his judgment and order dated the 14th of September, 1972 held that the defendants were wilful defaulters, that proper and effective notice as required by section 106 of the Transfer of Property Act had been given and that the Defendant had failed to substantiate their defence taken by them in their written statement that they were entitled to withhold payment of rent inasmuch as they had carried out repairs to the suit godowns for which some adjustment had to be made. On the last point, the onus was obviously on the Defendants which they failed to discharge inasmuch as they did not lead any evidence at all. The defendant appealed to the District Court and before the District Judge all the three points were again canvassed. On the last point, the onus was obviously on the Defendants which they failed to discharge inasmuch as they did not lead any evidence at all. The defendant appealed to the District Court and before the District Judge all the three points were again canvassed. It was held by the District Judge that there was default by the tenants in payment of rent, but that the tenancy of the appellants before him had not been validity terminated by the notice dated 1st August, 1967. In this view of the matter, the District Judge allowed the appeal and set aside he order of the rent controller. However, he directed the parties to bear their costs in the both the Courts. It is this decision of the district Judge which is assailed in this Revision Application. Now, according to the application of the Plaintiff in the Court of the Rent Controller, the godown had been obtained by the Defendants on a rent of Rs. 1000/- for 12 months from Diwali to Diwali. In his exmination-in-chief, the plaintiff stated that there were oral agreemets for rent which were renewed every year at the time to Diwali. In his cross-examination it was put to him and was admitted by him that the tenancy was from Diwali to Diwali. Now, in the written statement the Defendants had merely denied the legality and validity of notice terminating their tenancy without indicating the precise grounds. But the trend of the cross-examination and the grounds of appeal before the District Court from the decision of the Rent Controller proceed on the footing that the tenancy was a yearly tenancy and that the decision of the Rent Controller holding that the tenancy must be deemed to be from month to monthly was erroneous. In the impugned judgment and order the learned District Judge considered the effect of the statement made by the Plaintiff in the application as well as in the evidence as to the oral agreements for rent at Diwali and his precise admission in the cross-examination that the tenancy was a yearly tenancy renewable at every Diwali. In the impugned judgment and order the learned District Judge considered the effect of the statement made by the Plaintiff in the application as well as in the evidence as to the oral agreements for rent at Diwali and his precise admission in the cross-examination that the tenancy was a yearly tenancy renewable at every Diwali. In view of the requirements of section 107 of the Transfer of Property Act, however, he held that although there might have been an oral agreement to this effect between the parties, the positions in law would be that there was no valid agreement and the rights of the parties will have to be regulated by the provisions contained in Section 106 of the Transfer of Property Act. This was on the footing that there was no registered instrument as was the admitted position. The learned District Judge relied on (Rama Kumar Das v. Jagdish Chandra Deo)1, A.I.R. 1952 S.C. 23; (Surya Kumar v. Trilochan Nath)2, A.I.R. 1955 Cal. 495 in support of the legal conclusion reached by him in para 7 of the impugned judgment and order. I have gone through the two judgments and the view of the learned District Judge is unassailable. 495 in support of the legal conclusion reached by him in para 7 of the impugned judgment and order. I have gone through the two judgments and the view of the learned District Judge is unassailable. As the Supreme Court has observed: "When the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption." The Supreme Court, however, went on to add that:- "The difficulty in applying this rule to the present case arise from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in section 107 of the Transfer of Property Act." The Supreme Court a little earlier to this passage went on to observed that--- "The contract to the contrary, as contemplated by section 106 of the Transfer of Property Act need not be an express contract; it may be implied, but it certainly should be a valid contract." In this view of the matter Supreme Court opined--- "If it is no contract in law, the section 106 will be operative and regulate the duration of the lease." The position is sufficiently laid down in Surya Kumars cases where Das Gupta, J., speaking for the Calcutta High Court referred to the Supreme Court decision before mentioned and observed---"That as, though a yearly rent is said to have been reserved, there was no registered documents as is required in such a case under section 107, T.P. Act. Suit must be held that, though the intention may have been to create a lease from year to year, that intention was not expressed in proper legal form and so it cannot be given effect to and that the courts must proceed on the basis that there was no valid agreement between the parties and consequently the rights of parties will be regulated by the law as provided in section 106 T.P. Act, as if no agreement existed at all." (Under lining supplied). Thus the agreement that there was yearly reservation of rent must be held to be in law not to be any proper or legal agreement and is by these authorities required to be ignored. Thus the agreement that there was yearly reservation of rent must be held to be in law not to be any proper or legal agreement and is by these authorities required to be ignored. The question then arises is whether the learned District Judge was right in referring to the contract between the parties to pay rent for the sawant year and then holding that the lease was regulated by the Samwat calendar and, therefore, the month must be the Hindu calendar month and not the British calendar month. With respect to the learned District Judge, in my opinion, he has fallen in error in arriving to this conclusion by referring to the agreement which under the authorities cannot be looked at all. As a matter of fact, the provisions of section 106 of the Transfer of Property Act, have been made applicable by a sort of a legal fiction by process of reasoning by which the actual agreement between the parties the real contract has to be excluded from the consideration by failure of the parties to abide by the requirements of section 107 of the Transfer of Property Act. Thus, instead of the real and actual annual tenancy, which certainly goes by the Samwat year, we have a fictional monthly tenancy under section 106 of the Transfer of Property Act and to such functional monthly tenancy it is obvious that the month would be the month as defined under the General Clauses Act, 1897. By the definition clauses of the said Act, viz., section 3(35), month shall mean a month reckoned according to the British calendar. Inasmuch the monthly tenancy is to be presumed to exist by the operation of a legal technicality, the month also will have to be considered in the light of this definition and in this view of the matter, it must be held that the notice given by the landlord to the tenants was in full conformity with the requirements of section 106 of the Transfer of Property Act and the decision of the learned District Judge holding that the quit notice served on the appellants was not legal and has not validly terminated the tenancy was erroneous. In view of the legal position it has to be held that the month of tenancy did commence with the first of August and hence the notice served to the tenants on the 1st of August gave them more than 15 days notice as contemplated by section 106 of the Transfer of Property Act and also satisfied the other requirements of the statutory provisions. In this view of the matter, the rule is made absolute in terms of prayers (a) and (b). The judgment and order of the learned District Judge, in Rent Appeal No. 38 of 1972 is set aside and the order passed by the Rent Controller is restored save and except that the period of 30 days as provided by the said order will be calculated with effect from today. If within this period the defendants (respondents to this petition) do not comply with the said order of putting the Plaintiff in possession of the suit godown, the plaintiff will be entitled to execute the order in the same way as he would have been able to execute the original order of the Rent Controller. Respondents will pay to the Petitioner the costs of the proceedings throughout. -----