Judgment :- 1. The main substantial question of law raised in this second appeal filed by the 2nd defendant is whether the decree for eviction is bad for want of proper notice under S.106 of the Transfer of Property Act. 2. The subject-matter of the suit is a shed used for the purpose of conducting a saw mill. Plaintiff claimed to be the owner of the land and the shed and alleged that the same was rented out to the 1st defendant on 27-5-1972 under Ext. A2. Second defendant is said to be a sub-tenant inducted into occupation by the 1st defendant. First defendant did cot contest. The appellant-2nd defendant contended that the shed was actually put by the 1st defendant and the saw mill including the shed was assigned in his favour. He also pleaded that the suit is not maintainable for want of proper notice under S.106 of the Transfer of Property Act. 3. Both sides adduced documentary and oral evidence. Both the courts below considered the evidence in detail and found that the shed actually belongs to the plaintiff and that the appellant is only a sub-tenant of the 1st defendant. On the question of notice also the concurrent finding was against the appellant. Consequently the suit was decreed and the decree was confirmed in appeal. 4. The counsel for the appellant strenuously contended that both the courts below went wrong in entering findings regarding ownership of the shed and the status of the appellant. I do not think that there is any merit in these contentions. Ownership of the shed was found on the basis of appreciation of evidence. It is a factual finding which does not call for interference at the hands of this Court in second appeal. 5. On the question of status of the appellant also I do not think that any interference is called for. In the written statement itself the appellant claimed only to be an assignee of the 1st defendant. Even that contention was found against by both the courts below. Both the courts found that he is only a purchaser of the machinery. Exts. B1 and B2 are the agreements relied on by the appellant. They were between the appellant and the 1st defendant. Even after Exts. B1 and B2 the direction was that the appellant should pay rent and obtain receipts in the name of the 1st defendant. Both the courts found that he is only a purchaser of the machinery. Exts. B1 and B2 are the agreements relied on by the appellant. They were between the appellant and the 1st defendant. Even after Exts. B1 and B2 the direction was that the appellant should pay rent and obtain receipts in the name of the 1st defendant. That means that the tenancy in favour of the 1st defendant was continuing even after the arrangement between defendants 1 and 2. The case of the plaintiff is that there is no privity of contract between her and the appellant and that the appellant neither attorned to her nor did she recognise the appellant as her tenant. In the written statement the appellant bad no case that he attorned to the plaintiff or that the plaintiff recognised him as the tenant. As dw.1 he admitted that he never attorned to the plaintiff. Under such circumstances it cannot be said that the courts below went wrong in finding that the appellant is not the tenant of the plaintiff. 6. It is in this background that the substantial question of law raised by the appellant will have to be considered. According to the counsel for the respondent-plaintiff this substantial question of law does not arise for consideration at all and the appellant cannot be heard to contend that the tenancy was not duly terminated. The reason is that he is not a tenant of the plaintiff. It was pointed out that even if the appellant is entitled to raise such a contention, he cannot be heard on this point because no such contention was raised in the written statement. Further, it was argued that even on the merits the contention cannot stand. 7. The contention put forward at the time of arguments on behalf of the appellant was that the tenancy evidenced by Ext. A2 is one for manufacturing purposes and therefore it has to be deemed to be a tenancy from year to year. In this view it was contended that the tenancy is terminable only by six months' notice expiring with the end of the year of tenancy. Since the notices evidenced by Exts. A4 and A6 did not satisfy the above requirements of S.106 of the Transfer of Property Act, counsel for the appellant said that the decree of eviction cannot stand. 8. Since the notices evidenced by Exts. A4 and A6 did not satisfy the above requirements of S.106 of the Transfer of Property Act, counsel for the appellant said that the decree of eviction cannot stand. 8. As already stated, the tenant is the first defendant and he remained exparte. He did not raise any contention that the suit for eviction is not maintainable for want of proper notice. Even the appellant did not raise a contention that the lease in question is one for manufacturing purposes and the notice to quit is not proper because it did not comply with the provisions of S.106 of the Transfer of Property Act in the sense that six months' notice was not issued. There was only an omnibus contention in the written statement that the notice sent by the plaintiff is not legally valid and that it did not deserve even a reply. No case of manufacturing process or six months' notice was raised. No issue was also raised on this question. If at all any contention has been raised in this connection, it was only in the memorandum of appeal filed before the first appellate court. There also what was contended was only that the lease was for industrial purposes. 9. Before the filing of this suit the plaintiff filed another suit for eviction as O. S.233/ 74. Both defendants 1 and 2 were parties to that suit. Ext. B24 is copy of the appellate judgment in that case. It shows that the suit was dismissed for want of proper notice. The present suit was filed under the above circumstances. 10. In the first place the present contention that the lease is one for manufacturing purposes and therefore the suit is not maintainable for want of proper notice under S 106 of the Transfer of Property Act cannot be entertained for the simple reason that such a contention was not specifically raised in the written statement. That is not a pure question of law. The contention involved mixed questions of law and fact. If actually such a contention was raised in the written statement the plaintiff would have had an opportunity to meet the contention by adducing evidence to show that lease was not given for manufacturing purposes. That is not a pure question of law. The contention involved mixed questions of law and fact. If actually such a contention was raised in the written statement the plaintiff would have had an opportunity to meet the contention by adducing evidence to show that lease was not given for manufacturing purposes. The plaintiff cannot be taken by surprise at the time of arguments or before the appellate court by raising such a contention without giving an opportunity to adduce evidence. When the maintainability of the suit is challenged on a specific point involving questions of fact and law both the question of law as well as the question of fact on the basis of which the question of law is raised will have to be specifically pleaded. 11. Secondly such a contention is not available to the appellant. I have earlier found that the appellant is not a tenant of the plaintiff and that he is only a sub-tenant of the 1st defendant. At the best the appellant could be taken only as an assignee of the 1st defendant. I have earlier stated that there is nothing to show that he was recognised as the tenant by the plaintiff or that he attorned to the plaintiff. The 1st defendant continues to be the tenant. Under S.108 (m) of the Transfer of Property Act it is the duty of the lessee on termination of the lease to restore the property of the lessor in the same condition as it was at the time when he was put in possession. He cannot escape the obligation. The sub-tenant or the assignee who has not been recognised by the landlord is not entitled to plead that he is having the right to continue in possession for want of termination of the tenancy by a proper notice. The question of termination of the tenancy arises only when there is the relationship of landlord and tenant. Since that relationship is not there as between the appellant and the plaintiff there is no question of termination of tenancy by a notice as between them. A person having the status of a tenant alone is entitled to raise the contention that proper notice to quit has not been given and therefore the suit is not maintainable on the ground that the tenancy was not validly terminated. Even that contention is one which could be waived. A person having the status of a tenant alone is entitled to raise the contention that proper notice to quit has not been given and therefore the suit is not maintainable on the ground that the tenancy was not validly terminated. Even that contention is one which could be waived. In this case the 1st defendant alone was entitled to raise the contention regarding proper notice. He remained ex-parte. That means he has waived the contention. The provision regarding notice to quit is not a provision introduced by way of public policy. If is a contention which would be given up or waived by a party who is entitled to put forward the same. First defendant, who alone is the tenant and as such entitled to raise the plea, waived the same and therefore that question does not arise. Only when there is a tenancy its termination by a notice to quit arises. As between plaintiff and the appellant there is no tenancy and hence the appellant cannot say that the suit is not maintainable without a proper notice terminating the tenancy. In Muhammadan v. Ummaya Umma (1983 KLT 536) it was held: "There is no privity of contract between the landlord and the assignee of the leasehold unless the landlord collects rent from the transferee or otherwise recognises the transfer. Under clause (m) of S.108 of the Transfer of Property Act the lessee on the termination of the lease is bound to restore the property to the lessor in the same condition as it was at the time when be was put in possession of the same The lessee cannot in law exonerate himself from his obligation to put the lessor in possession of the property by effecting a transfer of the leasehold. The sub-tenant is not entitled to a notice to quit before the institution of a suit for his eviction from the suit property." In that decision it was further held that when the tenant himself has not chosen to appeal against the decision of the trial court it is not open to the sub-tenant who is not entitled to a notice to quit to challenge the validity of the notice issued to the tenant. The decision is squarely applicable to the facts of the present case also. 12. The lower appellate court went under a mistaken impression that Ext. A6 is also a quit notice. The decision is squarely applicable to the facts of the present case also. 12. The lower appellate court went under a mistaken impression that Ext. A6 is also a quit notice. Actually the quit notice is Ext. A4 issued to the Ist defendant. Ext. A6 is only an intimation of Ext. A4 given by the plaintiff to the present appellant. On the merits also the appellant cannot be heard to contend that proper notice under S.106 of the Transfer of Property Act is not there. The provision regarding notice under S.106 of the Transfer of Property Act is applicable only in the absence of a contract or local law or usage to the contrary. Ext. A2 is the lease deed and it is not a registered document. The monthly rent agreed was Rs. 30/-. Ext. A2 does not evidence a lease from year to year. So also it does not show that it is a tenancy for manufacturing purposes. Even taking for granted that the tenancy was granted for manufacturing purposes, S.106 of the Transfer of Property Act does not say that every tenancy for manufacturing purposes will have to be deemed to be a tenancy from year to year terminable only by six months' notice. Even in such cases the transaction is subject to contract or local law or usage to the contrary. Simply because a tenancy is said to be for manufacturing purposes it need not necessarily follow as a matter of course without reference to the other provisions that it is a tenancy from year to year. 13. S.107 of the Transfer of Property Act says that a lease of immovable property from year to year, or from any term exceeding one year, for reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Ext. A2 is only an unregistered document and it does not say that it is for any definite period. What is provided is only that monthly rent at the rate of Rs. 30/- will have to be given. It cannot be said that the lease was for the purposes specified in S.106 and it should be deemed to be an yearly tenancy and six months" notice is necessary. Under S.106 the parties are having an option. What is provided is only that monthly rent at the rate of Rs. 30/- will have to be given. It cannot be said that the lease was for the purposes specified in S.106 and it should be deemed to be an yearly tenancy and six months" notice is necessary. Under S.106 the parties are having an option. They can negotiate for a lease of the duration mentioned in the first paragraph of S.106. In such a case it will be an yearly lease and it could only be by a registered document. In the alternative they can also have a lease for a shorter period. In such a case a registered document is not necessary. When a lease transaction is entered into consciously without a registered document the normal conclusion is that the parties opted out of the first paragraph of S.106 of the Transfer of Property Act. In such a case the mere fact of non-registration of the lease deed itself could be taken as a contract to the contrary evidencing the intention of the parties in creating the lease transaction. In Jagat Taran Berry v. Sardar Sant Singh (AIR 1980 Delhi 7) it was held: "Whenever a lease is created without a registered instrument the inevitable conclusion must be that the parties have, so to speak opted out of the first paragraph. They have negatived any intention of creating a lease of the duration therein mentioned. It is, therefore, indicative of a contract between them. That contract is that the lease will not be of a duration mentioned in the first paragraph of S.107. Such a contract will always be a "contract to the contrary" envisaged by the opening words of S.106- So, from the single fact that a registered instrument is not executed, one can, and should, immediately deduce a contract to create a lease of the kind that can be created without such an instrument viz, lease from month to month. Thus, if the lease is for specified purposes under S, 106 and there is no registered instrument, that fact itself is conclusive to establish a "contract to the contrary". And by applying S.106 it should not be treated as an yearly lease, for the purpose of giving a notice to terminate the lease." As already stated by me, Ext. A2 does not evidence any intention to continue tenancy for more than one month. And by applying S.106 it should not be treated as an yearly lease, for the purpose of giving a notice to terminate the lease." As already stated by me, Ext. A2 does not evidence any intention to continue tenancy for more than one month. The contention that the purpose itself is manufacturing was denied on behalf of the plaintiff respondent. The purpose of the lease is to conduct a saw mill in which timber is sawn into pieces. Whether that itself is a manufacturing process is a debatable point on which both sides have pointed out certain decisions. Since a decision on that point is unnecessary for cur purpose, on account of what is stated above, I am not considering whether it is a manufacturing purpose as stated is S.106 of the Transfer of Property Act or not. From the above discussion, what follows is that Ext. A2 does not evidence a lease from year to year out it evidences only a tenancy from month to nun in. There is no contention that in such a situation the notice issued is not proper. Further, as I have already stated, the appellant is not entitled to raise such a contention also. For all these reasons, the second appeal must fail. The second appeal is therefore dismissed. In the circumstances of the case, I direct the parties 10 suffer costs incurred before this Court. Dismissed.