Judgment :- 1. The defeated defendant is the appellant. The suit was for recovery of a building in the possession of the defendant as a building tenant. The Kerala Buildings (Lease and Rent Control) Act is not applicable to the case. The only contention which required examination was a contention based on the insufficiency and invalidity of the notice under S.106 of the Transfer of Property Act. The trial held that the quit notice issued in the case was not valid and legal and so dismissed the suit. The plaintiff filed an appeal before the District Court, Quilon. The learned District Judge allowed the appeal and decreed the suit. Now the defendant appeals. 2. Here also the only question that has to be considered by me in this appeal is in regard to the validity of the suit notice. The short factual format of the case is as follows: Agreeing to pay a monthly rent of Rs. 20/- for a period of one year, the defendant-tenant executed a lease deed marked in the case as Ext. Al. It is dated 25-5-1979. One of the relevant terms of the lease deed is that, in case the tenant defaults payment of rent or fails to pay rent in due time without regard to the term fixed in the lease deed, the landlord is entitled to demand surrender of the building. This term I am highlighting since this term was found to be a term which will amount to a'contract to the contrary'. 3. Plaintiff sent a notice under S.106 of the Transfer of Property Act, terminating the tenancy. The notice is dated 5-7-1980. In the notice it is stated that the tenancy is terminated with effect from 31-8-1980. The trial court as well as the appellate court found, since the month of tenancy begins with 25th of an English calendar month and ends with 24th of the next calendar month, the notice is obviously not in conformity with the requirements of S.106 of the Transfer of Property Act. No doubt, it is very specifically stated in S.106 of the Transfer of Property Act that the determination of the tenancy should "expire with the end of a month of tenancy". T feel that the courts below are right in their conclusion that the notice is not in conformity with the prescription of S.106 of the Transfer of Property Act. 4. T feel that the courts below are right in their conclusion that the notice is not in conformity with the prescription of S.106 of the Transfer of Property Act. 4. The trial court considered the default clause in the lease deed and found that since there is no evidence in the case that there was default committed by the defendant, the clause has no operation and that only in a case, default is found by the court it can be considered as a term which will amount to "a contract to the contrary", so as to dispense with a quit notice. The appellate Court did not agree with the trial Court. The appellate court also found that there is no evidence in the case that there is no default committed by the defendant. I think the appellate court is correct on both the aspects. 5. In Philip v. State Bank of Travancore (1972 KLT. 914) a Full Bench of this court observed that for the purpose of that case it was unnecessary to express a final and concluded opinion as to whether a clause to surrender on demand without contest and without opposition, would be a contract to the contrary, so as to exclude the statutory notice required by S.106. The Full Bench further considered the question of a like default clause what we are having in the contract of lease in this case. The court held that the clause providing for liability to surrender and the right to evict, if rent for two consecutive months is defaulted, was a clear contract to the contrary. It was also held that the court cannot accept the contention raised by the appellant in that case that such a clause would have operation only during the currency of the lease deed and not when the original lease gets renewed statutorily from year to year, with the result that the term in the original lease is also statutorily incorporated into the tenancy by holding over. 6. The learned counsel for the appellant submitted that the Full Bench decision also observed that "there is no need for a notice to quit, and the two months' consecutive default in payment of rent itself affords a cause of action for eviction". 6. The learned counsel for the appellant submitted that the Full Bench decision also observed that "there is no need for a notice to quit, and the two months' consecutive default in payment of rent itself affords a cause of action for eviction". The learned counsel submits that this observation of the Full Bench has to be given due weight in assessing the argument of the counsel that only in case the plaintiff proves default, the clause will get its operation so as to make the contract a contract to the contrary. I do not think that I can accept the contention of the learned counsel. What has to be considered is the contract itself, its terms and its language. Considering the terms of the contract, the court has to come to an independent conclusion whether the contract is a contract which will exclude the compliance of S.106 of the Transfer of Property Act. On this question, the Full Bench has said clearly that such a clause is a contract to the contrary. What the Full Bench has said is "the latter clause" providing for liability to surrender and right to evict, if rent for two consecutive months is defaulted, was a clear contract to the contrary. In view of this, I have to bold that the contract evidenced by Ext. A1 provides "a contract to the contrary" to exclude the requirements of a notice under S.106 of the Transfer of Property Act. As stated earlier, there is a dispute whether there was default of payment of rent. The appellate court has said: "The respondent has not adduced any evidence in that regard. The money order coupon has not been produced. Even default of one month's rent is sufficient to attract the condition in Ext A1 mentioned earlier." From what I have quoted above, it can be seen very clearly that the appellate court is not agreeing with the conclusion of the trial court, that there was no default. Anyhow as I have already held that the clause itself is sufficient to exclude the necessity of sending a notice under S.106 of the Transfer of Property Act, and so whether there was a default of. payment of rent or not, is of no moment and consequence in considering the question of necessity of a notice under S.106 of the Transfer of Property Act. payment of rent or not, is of no moment and consequence in considering the question of necessity of a notice under S.106 of the Transfer of Property Act. It follows that whether the notice sent is valid or not need not be considered in view of my finding that no notice is required in the light of the terms of the contract. 7. Another point to be considered is Whether apart from the defeasance clause, the contract Ext. A1 will exclude the requirement of a notice under S.106. The appellate court found that the term of the lease expired by 24th May, 1980 and since there was no holding over, no question of application of S.106 of the Transfer of Property Act arises in the case. Now I shall examine this aspect of the case. 8. The first part of S.106 enacts a rule for the duration or the continuance of lease in the absence of a contract or local law or usage. From this it is clear that the section is applicable where the period is neither agreed upon between the parties nor fixed by any local law or by any usage. Where the lease is for a term, certain and definite, it expires by efflux of time, since S.111(a) of the Transfer of Property Act makes it clear that a lease of an immovable property determines by efflux of time limited by the agreement. A tenancy for a fixed term expires by mere efflux of time and the landlord will be certainly with in bis rights to ask for ejectment of a tenant by a simple demand for possession without being under the obligation of complying with the rigorous provisions contained in S.106 of the Transfer of Property Act. In such cases, service of notice under S.106 is not necessary for the determination of lease. I am of the view that before deciding the validity and correctness of the notice under S.106 of the Transfer of Property Act, the court should first decide whether S.106 is applicable or not. In this case, I feel that S.106 has no application, since the lease deed provides for a term definite and certain and the lease will be determined by efflux of time. As per the terms of the lease, the lease has to expire on 24th May, 1980. In this case, I feel that S.106 has no application, since the lease deed provides for a term definite and certain and the lease will be determined by efflux of time. As per the terms of the lease, the lease has to expire on 24th May, 1980. The learned counsel for the appellant submitted that though the lease would expire by efflux of time on 24th May, 1980, it does not happen and the tenant continued as a lessee by holding over. I have to consider this aspect also. 9. It is true that in certain circumstances a tenant can continue his tenancy by holding over. It is so provided in the Transfer of Property Act itself. The counsel for the appellant contended that the respondent had not filed the suit against the appellant as soon as the original tenancy had come to an end and that circumstance has to be taken into account for holding that the tenant continued as a tenant holding over. I am strongly of the opinion that this factor is hardly sufficient to establish the case pleaded by the learned counsel. By mere failure on the part of the respondent for some time to bring an action in ejectment against the appellant, it cannot under the circumstances, be inferred that the former assented to a new tenancy or that the latter acquired a right of a tenant holding over under S.116 of the Transfer of Property Act. Even in a case where there is neither assent nor dissent on the part of the landlord to the continuance of possession of the tenant the latter becomes in law only a tenant on sufferance who happens to hold the premises merely on. account of the inaction of the landlord and in such a case by the mere failure of the landlord to take action against the tenant, the tenant cannot acquire the right of holding over within the meaning of S.116 of the Transfer of Property Act and such tenancy or occupation would never confer any right on the tenant so that it would fall to be determined by a notice under S.106 of the Transfer of Property Act. The status of a tenant as a tenant holding over has to be determined op the factual situation of each case, since the continuation of the tenant in occupation of the leasehold after the expiration or the determination of the contractual tenancy will only suggest a ground for holding that the landlord has assented to a new contractual tenancy. True, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation of the tenanted premises. The mere fact that the tenant is occupying the premises after the expiration of the term fixed in the contract of tenancy itself ipso facto will not enable the tenant to say positively that he is, as a plain matter of fact, a tenant holding over. An express assent or an implied assent of the landlord to continue the tenancy is necessary for the tenant to continue in possession of the leased premises as a holding over tenant. So the question is whether the landlord has assented the continuation of the tenancy. In this case, it is clear that the landlord did not assent the continuation of the tenancy. The fact that the suit was instituted after about two months on the expiry of the term fixed by the contract will not enable the tenant to contend that there is a holding over of the tenancy. The learned counsel for the appellant contends that there is a claim for the arrears of rent for a period after the expiry of the term fixed in the contract of tenancy, and this claim for arrears of rent in this suit for eviction has to be considered as an assent of the landlord for the continuation of the tenancy. It is impossible for me to accept this contention. The filing of the suit is clear, express and most outspoken dissent of the landlord as to the continuation of tenancy. It has been found that the landlord did not receive the rent, when the tenant offered it, certainly fearing that it may amount to an implied assent. It is a clear indication that the landlord never wanted the continuation of the tenancy of the defendant. The appellate court also found that the appellant did not want the tenant to continue after the expiry of the term. 10. It is a clear indication that the landlord never wanted the continuation of the tenancy of the defendant. The appellate court also found that the appellant did not want the tenant to continue after the expiry of the term. 10. True S.111(a) of the Transfer of Property Act deals with determination of lease by efflux of time limited by the contract of tenancy. As I said earlier, in the present case, there is positive evidence to show that the defendant was not allowed to continue as a tenant holding over. I need not say that if the defendant wanted to establish that he continued as a tenant holding over, it was necessary to prove that he remained in possession of the premises after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. It has to be remembered that the concept of tenancy by holding over is to be understood not as a continuation of the old tenancy in regard to the totality of all the incidents of the tenancy. It is a new tenancy in law even though many of the terms of the old lease may be continued in it by implication and it cannot be doubted that to bring a new tenancy into existence, there must be a bilateral act. What S.116 mandates is that on one side, there should be an offer of taking a renewed or fresh demise circumstanced by the lessee's continuing in occupation of the premises after his interest in the property demised, has ceased in accordance with the terms of the contract of lease, and on the other side, there must be a clear assent to this continuance of possession by the landlord either explicitly expressed or impliedly gathered from the conduct of the landlord like acceptance of rent or otherwise. The assent of the landlord which is founded on acceptance of rent, which is common and usual roust have the qualification that the acceptance of rent "as such" and in clear recognition of tenancy fight asserted by the person who pays it. 11. The evidence being contrary to a case of assent, I hold that the defendant cannot contend successfully that he continued as a tenant holding over. 12. In view of all the facts discussed above, I see no merit in this appeal. The appeal is dismissed. Dismissed.