D. M. DHARMADHIKARI, J. ( 1 ) THIS appeal under Section 96 of the Code of Civil Procedure has been preferred against the judgment and decree dated 7. 9. 94 passed by second additional District Judge, Hoshangabad. dismissing the suit of the appellant/plaintiff for eviction of the respondent/defendant from the suit premises. ( 2 ) THE suit premises are municipal shop nos. 18 and 19 in Jawahar Market of Itarai town in District Hoshangabad. According to the plaintiff the shops in suit were leased to the plaintiff by municipal council. He sub-let them under agreement dt. 1st of March, 1987 for a period upto 28th February. 1980 which was extended upto 15th June. 1980. ( 3 ) THE suit was founded on the alleged agreement of sub-tenancy (ex. pl)dt. 1. 3. 1976 and as the plaint allegations show eviction of the respondent sub-tenant was sought by setting up bonafide need under Section 12 of the m. P. Accommodation Controlact, 1961 ( hereinafter referred to as the 'act' of 1961 ). ( 4 ) THE respondent defendant resisted the suit by denying the status of his being a sub-tenant. The plea taken by the defendant was that agreement Ex. P. 1 was a sham document and infact the plaintiff had sold his lease hold rights for the shops in suit infavour of the defendant for a sum of Rs. 40,000/-out of which Rs. 20,000/- was paid on the date of actual delivery of possession of the premises for running a hotel. ( 5 ) THE trial court dismissed the suit holding that agreement (Ex. P. 1) was not one of sub-tenancy but was an arrangement between the parties as partners in the joint business of running a hotel. ( 6 ) LEARNED counsel Shri N. K. Patel appearing for the appellant plaintiff in this appeal argued that the agreement (Ex. P. 1) was wrongly held to be an agreement of partnership. It is submitted that the trial court should have believed that it was an agreement of subtenancy and the agreement was so word and only because under the terms of lease with the municipal Council the plaintiff could not have sub-let the suit shops to the defendant. P. 1) was wrongly held to be an agreement of partnership. It is submitted that the trial court should have believed that it was an agreement of subtenancy and the agreement was so word and only because under the terms of lease with the municipal Council the plaintiff could not have sub-let the suit shops to the defendant. It is submitted that parole evidence was not prohibited by the provisions of Section 92 of the evidence Act and the learned trial Judge ought to have believed the evidence of the plaintiff that in fact the suit shops were sub-let, to the defendant. Reliance is placed on Gangabai v. Chhabubal. ( 7 ) SHRI S. K. Gangele, learned counsel appears for the respondent/defendant. He submits that the suit is totally misconceived and it is pre-mature. It is submitted that the provisions of the Act of 1961 are not applicable to the accommodation owned by the Municipal Council interms of Section 3 (l) (b)of the Act of 1961. He submitted that the rights between the parties under the agreement (Ex. P. 1) were, therefore, regulated by general law of transfer of property Act. It is submitted on behalf of the respondent that the suit for eviction of sub-lessee 'could not have been filed without due service of quit notice terminating the sub-lease in accordance with Section 106 or Section 111 of. the TRANSFER OF PROPERTY ACT, 1882. It is also submitted that a year to year lease or for any term exceeding one year or reserving a yearly rent could have been made only by registered instrument under section 107 of the TRANSFER OF PROPERTY ACT, 1882 and as the alleged agreement of sub-lease (Ex. P. 1) is unregistered it is inadmissible in evidence. Reliance is placed oh Sardar Amar singh v. Smt. Surender Kaur, Satish Chand v. Govardhan Das. ( 8 ) THE legal contention advanced on behalf of the respondent has great force. From the averment in the plaint it is clear that the suit was wrongly founded on assumption that the provisions of the Act of 1961 are applicable to the accommodation. As has been pointed out the rights and liabilities between the parties under Agreement (Ex. P. 1) are regulated by the provisions of General Law contained in Transfer of Property act. As has been pointed out the rights and liabilities between the parties under Agreement (Ex. P. 1) are regulated by the provisions of General Law contained in Transfer of Property act. In the plaint itself the plaintiff has pleaded that the cause of action arpse on expiry of the extended period of lease on 15. 6. 80. It also arose, according to the plaint averment, every month from 1. 4. 81 for the purpose of recovery of arrears of rent. It is thus clear that the sub-tenant was 'holding over' within the mean ing of Section 116 of the Transfer of Property act as he has been allowed to continue in possession of the leased premises (on acceptance of alleged agreed rent) even after the expiry of the period oflease on 15. 6. 80. It also arose, according to the plaint averment, every month from 1. 4. 81 for the purpose of recovery of arrears of rent. It is thus clear that the sub-tenant was 'holding over' within the mean ing of Section 116 of the Transfer of Property act as he has been allowed to continue in possession of the leased premises (on acceptance of alleged agreed rent) even after the expiry of the period of lease. It was, therefore, necessary for the plaintiff to institute a suit for eviction only after serving a quit notice under the provisions of TRANSFER OF PROPERTY ACT, 1882. See the following observations of the Supreme Court in AIR 1984 SC 143 (supra):"we have no doubt in our mind that the defendant were tenants holding over under Section 116 "of the Transfer of property Act and, therefore, it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mulla's TRANSFER OF PROPERTY ACT, 1882, 5th Edition, 62. It was definitely wrong on the part of the high Court to have proceeded on the assumption that the lease was for a specific term of nine years and, therefore, the lease stood determined by efflux of time under Section 111 (a) of the TRANSFER OF PROPERTY ACT, 1882, and that the defendants were tenants at sufferance and no quite notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111 (a) of the TRANSFER OF PROPERTY ACT, 1882, and the erstwhile tenant becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them That being so, the plaintiffs suit for ejectment as framed was not maintainable. The decree for mesne profits shall be treated as a decree for arrears of rent, if any. "see also the following statement of law by the full Bench of this Court in Sardar Amarsingh v. Surinder Kaur (supra):"as already stated earlier, the unregistered lease deed cannot be used to prove the terms of the lease. Thus, it cannot be used to show the period of the lease and the rent on which the premises were demised. However, when from the nature of possession and the relationship established between the applicants and the non-applicant, if a tenancy can be said to be proved, then by virtue of Section 106 of the Transfer act, a monthly tenancy between the parties can be presumed. The decision in Dammulal v. Mohd. Bhai supports this view. In paragraph 25 of the said decision, it has been stated as under "where a lease for a term of years or perpetuity is granted but it is invalid and the lessee enters into possession under such a lease, a tenancy may arise by implication from the payment of rent by the tenant and its acceptance by the landlord and a presumption of a yearly or monthly tenancy under Section 106 t. P, Act may be drawn in such cases. In the above decision, while holding so, reliance was placed on an earlier decision in karimulla Khan v. Bhanupratapsingh, in which it was stated in paragraph 12 as under: "the last point that has been urged by shri R. K. Rao, on behalf of the plaintiff is that in view of the fact that the unregistered lease deed is invalid and cannot support the defence of permanent tenancy, the case falls within the purview of Section 107, T,p. Act and that the defendants would be treated as tenants holding, from year to year as the lease is for agricultural purposes. The provisions ofSection 106, T. P. Act, govern all leases except those which are provided for by'a valid contract or usage. If there is a valid contract, the parties will be governed by. that contract which is enforceable at law and if there is no valid contract as there is none in the present case, the lease being invalid for want of registration, the relations of the parties must, in my view, be governed by the provisions of section 106, T. P. Act. If the defendants were let into possession by the plaintiff's predecessor-in-title as tenants, but they failed to establish that they were let into possession with rights of permanent occupancy, their position will be only that of tenants from year to year and they can acquire by prescription no right of permanent occupancy even by the fact that they were setting up a right of permanent occupancy to the knowledge of the plaintiff's predecessors-in-title for upwards of 12 years before the date of suit. " thus in the instant case, the period of 'the lease and the terms of the lease cannot be proved by admitting the lease deed Ex. P. 2 in evidence. But looking to the facts and circumstances of the case if relationship of landlord and tenant can be said to have been' established between the parties, a monthly tenancy can be presumed under Section 106 of the Transfer of Property act in view of the fact that the tenancy is not with respect to immovable property for agriculture, or manufacturing purposes. (See Ram Kumar v. Jagdish chandra, AIR 1952 SC 23 ). " ( 9 ) THE learned counsel for the appellant submits that although document Ex. (See Ram Kumar v. Jagdish chandra, AIR 1952 SC 23 ). " ( 9 ) THE learned counsel for the appellant submits that although document Ex. P. 1 is unregistered it can be looked into for the limited purpose of'finding out the nature of possession of the defendant and for the purpose of finding out the agreed amount of rent, the alternative submission is that even if this court holds that the suit for eviction cannot supceed for want of service of quit notice, this court is competent to pass a decree for arrears of rent claimed in the suit and for future rent from the date of decree. Reliance is placed on the case of Sardar Amar Singh and Am. v. Smt. Surinder Kaur (supra) (full Bench) and chironjilal Phulchand v. Ghanshyam Das sharma. ( 10 ) IN this case earlier had prepared a judgment and placed it for delivery. The learned counsel for the appellant insisted that this court should also decide the contested issued between the parties on their rights based on the documents (Ex. P. 1 ). He also submitted that this court should decide the claim of the appellant for arrears of rent Thereafter listed the case for re-hearing. ( 11 ) AFTER re-hearing the learned counsel for the parties, I come to the conclusion that document (Ex. P. 1) being unregistered cannot be looked into for the purpose of determining the terms and conditions under which the premises were transferred by the plaintiff to the defendant. The decision quoted above in full Bench case in Sardar Amar Singh (supra), however, supports the contention advanced on behalf of the appellant that for a limited purpose of determining the nature and character and possession of the defendant. the said document be looked into. ( 12 ) THE plaintiff's case is that document ex. P. 1 evidences lease whereas the case of the defendant is that it was a sham document and infact there was a sale of the learned premises with stock and furniture used for running a hotel business. ( 13 ) ON the respective pleas of the parties on document Ex. P. 1 the counsel for the appellant is right in submitting that the learned ' trial Judge could not have arrived at a finding that the document evidences a partnership arrangement. ( 13 ) ON the respective pleas of the parties on document Ex. P. 1 the counsel for the appellant is right in submitting that the learned ' trial Judge could not have arrived at a finding that the document evidences a partnership arrangement. That was no-body's case and the learned trial Judge could not have, therefore, held that document (Ex. P. 1) evidenced a partnership agreement under which only a part of profit was agreed to be paid by the defendant to the plaintiff. ( 14 ) THE case of the defendant that it was a sale of lease hold right by the plaintiff deserves outright rejection because there is no evidence in writing to show that a sum of Rs. 40,000/- was agreed to be paid out of which rs. 20,000/- were paid by the defendant. Nothing prevented the defendant from obtaining a receipt for the payments made. No amount of oral evidence led by the defendant could be believed that initially at the time of obtaining. delivery- of possession of the premises, he had paid a sum of Rs. 20,000/- and thereafter in presence of the witness he had paid the balance agreed amount of consideration. The case of the sale of the lease premises set up by the defendant, therefore, is rejected as false and concocted ( 15 ) AS has been held above, although the document of lease (Ex. P. 1) is unregis tered, it can be looked into for the collateral purpose of determining the nature and char acter of possession of the defendant, with respect to the premises in suit. Both the parties agree that because of the likelihood of objections from Municipal Council, a formal agreement of sub-lease could not have been executed. The document" (Ex. P. 1)whichprima fade shows that it was an arrangement of partnership was infact a transaction of sublease. If a document is found as sham, oral evidence is not completely prohibited under section 91 or 92 of the Evidence Act. The document" (Ex. P. 1)whichprima fade shows that it was an arrangement of partnership was infact a transaction of sublease. If a document is found as sham, oral evidence is not completely prohibited under section 91 or 92 of the Evidence Act. See: mandas v. Manabai where it has'been observed as under :"it is true that under Sections 91and 92 of the Evidence Act when the terms of a contract have been reduced to writing, extrinsic evidence as to what transpired subsequent to the contract is not admissible for ascertaining the terms and no oral agreement or statement is admissible between the parties to any instrument or their representatives-in-interest for the purpose of contradicting, varying, adding to or substracting from its terms If the language employed in the document is ambiguous, the question of the admissibility or otherwise of extraneous evidence would be regulated by the provisions of Sections 92 to 98 of the Evidence Act (see balapur Co. Ltd. v. Maharashtra State framing Corporation) but nevertheless evidence to show that there was no agreement' between the parties is admissible. In Shrinarayan v. Bhaskar this view has taken that Section 92 of the Evidence Act excludes oral evidence to vary the terms of the written contract, but has no reference to the, question whether the parties agreed to contract on the terms set forth in the document. It the validity of a document is impeached, the court is not bound by what has been described as the paper expression of the parties and is not precluded from entering into the real nature of the transaction between them (see Beni Madhab Dass v. Sadasook kotary ).- Section 92 of the Evidence act does not preclude a party from showing that the writing is not really a contract between the parties but was only a fictituous or colourable device which cloaked something else (see asaram v. Ludheshujar and Bai Hira devi v. Official Assignee of Bombay ). Oral evidence has been held to be admissible to show that an agreement was only a sham or nominal transac tion and was not intended to be acted upon (see Tyagraja Mudafiyar and another v. Vedethanni ). " ( 16 ) THIS Court, therefore, comes to the conclusion that document (Ex. P. 1) was sham and infact there was transaction of sub-lease of the suit premises between the parties. " ( 16 ) THIS Court, therefore, comes to the conclusion that document (Ex. P. 1) was sham and infact there was transaction of sub-lease of the suit premises between the parties. In the absence of a quit notice, the relief of eviction claimed by the appellant cannot be granted. The relief of a decree of arrears of rent can, however, be granted on the finding reached by this court as mentioned above. In the plaint as well as in appeal the plaintiff has claimed a decree in the sum of Rs. 16,200/-towards arrears of rent at the rate of Rs. 450/- per month i. e. for the period upto the institution, of the suit. He has paid the court fees on the said amount. He is. therefore, entitled to the grant of a decree to the above extent towards arrears to rent. He would also be entitled to arrears of rent from the date of suit to the date of decree and future rent but subject to payment by him that the requisite court fees thereon in execution proceedings. such a relief can be granted to him Under order 20 Rule 12 CPC despite dismissal of his suit for eviction for want of quit notice. See the case of Chironjilal (supra ). ( 17 ) CONSEQUENTLY, the appeal only partly succeeds. The suit for relief of eviction is dismissed but it is decreed in the sum of Rs. 16,000/- towards arrears of rent claimed in the suit. The plaintiff will also be entitled to recover arrears of rent from the date of suit to date of decree and future rent at the rate of Rs 450/- per month but subject to payment of court fees thereon in the executing court. The plaintiff shall also be entitled to proportionate cost throughout to the extent of his success in this appeal. Counsel's fee as par schedule, if pre-certified, on the amount of Rs. 16,200/-appeal allowed partly. .