JUDGMENT Deoki Nandan, J. -This is a defendants second appeal in a suit for ejectment from a shop bearing Nos. 523 and 524 at Mohalla Sarai Bahleem Shorab Darwaza,. Meerut City, and for recovery of arrears of rent and damages in respect thereof. 2. The plaintiffs case as laid in the plaint simply was that he was the owner and landlord of the shops in suit of which the defendant was the tenant since 1st April, 1965 on payment of Rs. 40/-per month; that the shops had been constructed after 1951 and U. P. Act No. III of 1947 did not apply thereto, that the defendants tenancy was terminated by a notice dated 15th September, 1967, under Section 106 of the T. P. Act which was served on the defendant on 21st September, 1967; that the defendant did not vacate the shops on 22nd October, 1967 hence the suit which was filed on 24th October, 1967 claiming the defendants ejectment and rent amounting to Rs. 53/- up to 24th October, 1967 and damages for the unlawful use and occupation thereafter at the rate of Rs. 60/-per month. 3. The defence was that the shops were old and that the suit was barred by Section 3 of U. P. Act No. III of 1947 and also that the notice served on the defendant was illegal and wrong and did not bring about the termination of his tenancy. It was further pleaded that the defendant had remitted rent by money order but the same had been refused by the plaintiff and, therefore, the plaintiff was not entitled to costs even in respect of the rent payable. 4. The trial court found on an appraisal of the evidence on the record that the shops in suit were old constructions, that the notice Ex. 7 did not bear the signatures of the counsel who had purported to serve it on behalf of the plaintiff and was thus invalid. The trial court further found that the rent had been duly tendered by money orders dated 24th August, 1967 and 14th November, 1967 but had wrongfully been refused by the plaintiff and that the defendant was ready and willing to pay the same. In the result the trial court ordered that the plaintiff shall be entitled to rent at the rate of Rs. In the result the trial court ordered that the plaintiff shall be entitled to rent at the rate of Rs. 40/- per month up to the date of its judgment which was 30th October, 1969 and also directed the defendant to pay the same within one month. No decree for recovery of the rent claimed by the plaintiff was, however, passed and the suit for ejectment was dismissed with costs. 5. On appeal by the plaintiff, the lower appellate court held that the shops in suit were constructed in the year 1965 and that although the notice under Section 106 of the T. P. Act did not bear the signatures of the plaintiffs counsel, the flap of the inland letter bearing the same had been torn away by the defendant before filing the same in the court. It accordingly allowed the appeal and decreed the suit for ejectment, and recovery of the rent and damages at the rate of Rs. 40/- per month from 21st October, 1967 up to the date of the delivery of possession over the shops in question to the plaintiff. 6. Mr. R. H. Zaidi, learned counsel for the defendant appellant, criticised the findings of the lower appellate court as perverse and urged that on the facts of the case as found by the trial court, U. P. Act No. III of 1947, applied to the shops in suit and the suit for ejectment was on its face, barred by Section 3 (1) of that Act, and further that the notice purporting to be under Section 106 of the T. P. Act that was sent in this case was unsigned and invalid, with the result that the suit could not only be dismissed. in either view of the matter. 7. Mr. in either view of the matter. 7. Mr. N. A. Kazmi, appearing for the plaintiff respondent, who died during the pendency of the appeal in this court and is now represented by his heirs and legal representatives, urged that U. P. Act No. III of 1947 had been repealed by U. P. Act No. XIII of 1972 with effect from 15th July, 1972, and expired thereafter on 30th September, 1972, and being thus dead and no more alive the defendant appellant was not entitled to its protection against ejectment in the suit giving rise to this second appeal, that the findings arrived at by the lower appellate court were findings of fact and were binding on second appeal; and that in any case the defendant-appellants tenancy having been under a rent note for three months, vide Ex. 6 dated 1st April, 1965, the defendant-appellant became a tenant at will after the expiry of the three months period of .his tenancy on 30th June, 1965, and a notice under Section 106 of the T. P. Act was accordingly not required to be served for determination of the tenancy, and the defendant appellant was liable to be evicted from the shops in the suit giving rise to this second appeal as be bad failed to vacate the same on demand of possession being made by the plaintiff - respondent. 8. As to the first point raised by Mr, N. A. Kazmi on behalf of the plaintiff respondent, about the effect of the repeal and expiry of U. P. Act No. III of 1947, it is sufficient to say that the second appeal was argued along with Second Appeal No. 35 of 1969 (Sita Ram v. Bishan Lal) and, for the reasons given in my judgment of date in that second appeal, I have come to the conclusion that the repeal of U. P. Act No. Ill oi 1947 by U. P. Act No. XIII of 1972, with effect from 15th July, 1972, and its subsequent expiry on 30th September, 1972 will not entitle the plaintiff-respondent in the present case to a decree for eviction against the defendant-appellant in the suit giving rise to the present second appeal, in case it is found that the shops in suit were not new constructions made on or after January 1, 1951. 9. 9. This leads to the consideration of the principal contention raised by Mr, R. H. Zaidi, learned counsel for the defendant appellant in this case. The finding arrived at by the lower appellate court that the shops in suit were constructed in the year 1965 is undoubtedly finding an a question of fact, but Mr Zaidi contended that all that could be said on the facts of the present case was that some renovation or plastering may have been done when the shops in suit Were let out to the defendant appellant hut the fact remained that they were part of an old building purchased by the plaintiff respondent in the year 1960. He referred me to the vouchers tor the purchase of the building material that have been relied upon by the lower appellate court, and argued that they were mostly for the period after 1st April, 1965, which was the date on which the tenancy commenced and any repair work done in a building does not amount to new construction. So far as the position of law on this aspect of the matter is concerned, that has also been considered in some detail in my judgment of date in Second Appeal No. 35 of 1969 (L. Sita Ram v. Bishan Lal) and in view of the authorities on the point particularly that in the case of Shamsher Bahadur v. State of U. P. ( AIR 1964 All 395 ) (at page 404 paras 27, 28 & 29), I hold that only those accommodations were exempt from the operation of U. P. Act No. III of 1947 which consisted of or formed part of a building constructed entirely anew on or after January 1, 1951, and that mere repairs or renovation or ;even material alterations in a preexisting building could not save it from the operation of that Act even in case the alterations made were such as to bring a new accommodation into existence on or after January 1, 1951. 10. It is not the plaintiffs case nor has it been found by the lower appellate court that the building of which the shops in suit formed part was constructed entirely anew in the year 1965, that is, after January 1, 1951. Although not specifically pleaded by the plaintiff respondent the shops in suit were purchased by him by a sale deed D/- 25th Dec., 1960. Although not specifically pleaded by the plaintiff respondent the shops in suit were purchased by him by a sale deed D/- 25th Dec., 1960. The lower appellate court has observed that under the sate deed the shops were described as 'Pokhta va Kham and that since the accommodation let out to the defendant-appellant was entirely pucca and no Lakhawari bricks were found therein, it must have been constructed in the year 1965, as alleged by the plaintiff in his statement on oath. This part of the finding of the lower appellate court is based on a report (76-Ga) of an Advocate to whom a commission was issued on the plaintiff application (72-C) after the defendant had seated that the shops in suit were made of Lakhawari bricks. The Commissioners report states that he got the plaster removed from one or two places and found that most of the bricks of that portion were Gumma bricks, but in some portion the bricks were of small size but they could not be called Lakhawari bricks. Learned counsel urged that Gumma bricks are those which are of standard size, namely, 8" x 4?" x 2". This size of bricks are only manufactured now. Lakhawari bricks were of smaller size and used to be made in good old age when the bricks were not burnt with coal. There was no standard size for Lakhawari bricks but the fact remains that the bricks of any size smaller than the standard size known as Gumma bricks, are not manufactured now in this part of the country. Lakhawari bricks used to be manufactured in the 19th Century and earlier. The Commissioners report clearly shows that in many parts of the walls the bricks were of smaller size than the Gumma bricks, although according to the Commissioners opinion they could not be called Lakhawari bricks. Learned counsel challenged the opinion of the Commissioner that these small sized bricks could not be called Lakhawari bricks, and in my opinion, rightly. Learned counsel then invited my attention to a paper No. 56-Ka, which is a report dated 26th July, 1968 of Zakir Ali, overseer of District Board, Meerut, which was filed by the plaintiff-respondent himself along with his application for temporary injunction. Learned counsel then invited my attention to a paper No. 56-Ka, which is a report dated 26th July, 1968 of Zakir Ali, overseer of District Board, Meerut, which was filed by the plaintiff-respondent himself along with his application for temporary injunction. Although this paper was not proved, but urged by learned counsel for the defendant-appellant that he could rely on it as the paper had been filed by the plaintiff-respondent, without its being formally proved. I think the learned counsel for the defendant-appellant is right in saying that he could read this document as evidence in the suit without its being formally proved, inasmuch as it was filed by the plaintiff-respondent himself. The document reads as under.[Original in Hindi omitted here Ed.] :- It shows that there were two rooms over the shops in suit and those rooms were also old constructions and that the running of the Ata Chakki in the shops in suit had caused cracks in the walls and the roof of the adjoining house. Learned counsel then urged that according to the sale deed under which the plaintiff-respondent had purchased the shops in suit, the property was described as Kachcha and pucca and was indisputably a very old construction because the sale deed showed that the shops in suit which were presently numbered as 525, even had old numbers 338 and 339. The inference drawn by the lower appellate court that the shops must have been reconstructed as they were entirely pucca when they were let out is wholly conjectural. The inference drawn by the lower appellate court that the shops must have been reconstructed as they were entirely pucca when they were let out is wholly conjectural. As to the plaintiffs statement on oath that he had constructed the shops entirely anew after getting the old kachcha constructions demolished, learned counsel contended that the statement of the plaintiff was proved to be false inasmuch as he had stated that the vouchers of the cement, timber, steel, bricks etc., purchased by him for reconstruction of the shops had been filed by him as paper Nos, 4 to 15 of list 18-C. and these papers showed that the bricks and the cement had been purchased after 1st April, 1965, vide (1) paper No. 8, voucher dated 24th May, 1965, for 2500 bricks 21 paper No. 9, voucher dated 1st July, 1967 for two bags of cement; (3) paper No. 10, voucher dated 18th July, 1965 for 2300 bricks (4) paper No 11, voucher dated 20th June, 1965 for 2500 bricks (5) paper No. 12, voucher dated 21st October, 1965 for 8 bags of cement. There are no other vouchers of bricks in the papers filed by the plaintiff- respondent. Paper No. 4, is a voucher dated 29th May, 1965 for the price of one Chaukhat. Paper Nos. 5 and 6 are two vouchers dated 18th December, 1964 for one bag each of cement, paper No. 7, is a voucher dated 25th March, 1965 for two bags of cement. Paper Nos. 13 and 14 are two vouchers dated 25th October, 1964 for some quantity of steel. The dates of these vouchers particularly those for bricks, clearly show that the two shops in suit could not have been E reconstructed entirely anew when they were let out on 1st April, 1965. The total quantity of 7,300 bricks was wholly insufficient for the reconstruction of these shops and was at any rate purchased after 1st April, 1965. It is accordingly clear that these documents do not corroborate the plaintiffs statement on oath that the shops in suit were constructed in 1965 after demolishing the old kachcha construction. Moreover, the overseers report, paper No. 53-C referred to above, clearly shows that there were two rooms on the first floor of the shops in suit and that those rooms were old constructions. Moreover, the overseers report, paper No. 53-C referred to above, clearly shows that there were two rooms on the first floor of the shops in suit and that those rooms were old constructions. Naturally, the preexisting construction whatever it was of the shops in suit, which supported the two rooms on the first floor could not I have been demolished without also putting down the rooms on the first floor. 11. There is the further fact that the trial court which had the benefit of hearing the witnesses, disbelieved the plaintiff, and the lower appellate court could not have reversed the findings of the trial court unless there were adequate reasons for doing so in the form of some material on the record which could lead to the inference that the findings arrived at by the trial court were, definitely wrong. The rule of practice on this point is that enunciated by the Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ( AIR 1951 SC 120 : (1951 All LJ 1)). 12. I, therefore, find that the finding of the lower appellate court that the shops in suit were constructed in the year 1965 is vitiated in law, and that the finding of the trial court that they were pre-1951 construction is fit to be confirmed. 13. This leads me to the consideration of the finding of the lower appellate court that the notice under Section 306 of the T. P. Act that was served by the plaintiff-respondent on the defendant-appellant was duly signed and that the defendant-appellant had before filing it m the court torn away the flap bearing the signatures of the counsel. In view of my aforesaid finding that the shops in suit were pre-1951 constructions, it is strictly not necessary to go into this question touching the validity of the notice under Section 106 of the T. P. Act. Nevertheless, since the lower appellate court has been rather harsh on the defendant-appellant on this point, I must say that the finding of the lower appellate court on this point also, appears to me to be perverse. Now the original notice, Ex. A-6, is on the record. The notice is typed on both the sides of the sheet, the end being on the back side. Now the original notice, Ex. A-6, is on the record. The notice is typed on both the sides of the sheet, the end being on the back side. There are no signatures of the learned counsel who purports to have served it at the place where the contents of the notice came to an end. However, on the front side at the very end of the bottom edge there is a red loop which the lower appellate court appears to have assumed to be the remaining part of the signatures of the learned counsel on the torn away flap. Now, the flap is meant to be folded and pasted and it does happen that while tearing open the gummed inland letter, the flap does sometimes get torn. The place where the learned counsel is said to have signed the notice is a most unusual place. A notice is supposed to have been signed at the end of its contents. Even if it is signed at the end of the first page as a matter of precaution, the necessary signatures are those required to be made at the end of the notice. These signatures are missing. The copy of the notice filed by the plaintiff, vide Ex. 87 is also not signed. The learned counsel who is supposed to have sent the notice was not produced. The plaintiff in his statement on oath did say in his examination in chief that the original notice bore the signatures of the counsel, but in cross-examination he showed his ignorance of the language in which the learned counsel was supposed to have signed the notice. It is true that in the reply sent by the defendant - vide Ex. A-7, all kinds of allegations have been made about the plaintiffs habit of getting false and frivolous notices served, and although it is pleaded that the notice was against law and did not bring about the termination of the defendants tenancy, it has not been stated that it was not signed. Be that as it may, it was impossible, on the material on the record to come to the finding that the service of a valid notice under Section 106 of the T. P. Act on the defendant-appellant had been proved by the plaintiff-respondent, in accordance with law. Be that as it may, it was impossible, on the material on the record to come to the finding that the service of a valid notice under Section 106 of the T. P. Act on the defendant-appellant had been proved by the plaintiff-respondent, in accordance with law. On the facts, the evidence was wholly insufficient to discharge the burden of proving it, which lay on the plaintiff-respondent. From the material available on the record and the fact that the learned counsel who served that notice was not produced in evidence, it appears highly probable, though somewhat unusual, that the learned counsel forgot to sign the notice before he dispatched it to the defendant-appellant. 14. None of the other points raised by the learned counsel survive for consideration. It must be observed that the decree of the trial court declaring the plaintiff-entitled to recover the rent at the rate of Rs. 40/- per month and directing the defendant to pay the same up to the date of the trial courts decree, that is, 30th October, 1969, was uncalled for. Only the rent for one month could be said to be payable when the suit was filed. The trial court found that, that had been tendered by the defendant-appellant to the plaintiff-respondent but wrongfully refused by the later. Under the circumstances the entire suit was liable to be dismissed. 15. In the result, the appeal succeeds, and is allowed with costs. The judgment and decree of the lower appellate court are set aside. The plaintiffs suit is dismissed with costs throughout.