P. K. BISWAS, J. ( 1 ) THE present appeal is directed against the judgment and decree dated 16. 12. 95 passed by Sri G. C. Sarkar, the learned Assistant District Judge, Tamluk in Title Appeal No. 13 of 95 reversing those dated 13. 12. 94 passed by Ms. Anjali Sinha, the learned Munsif, Tamluk in O. S. No. 60 of 93. ( 2 ) THE suit before the lower Court was filed seeking for eviction of a tenant with mesne profit. The trial Judge was pleased to pass the decree in favour of the plaintiff-appellant, which was reversed by the learned lower Appellate Court. The substantial question of law for the determination of the present appeal was formulated as under: ?effect of notices, issued on 30th November, 1992 as also on February 15, 1993 issued by the appellant in favour of the respondent in view of the provisions of section 113 of the Transfer of Property Act. ? ( 3 ) THE plaintiff-appellant Basudev Chowdhury filed a suit being O. S. No. 60 of 93 before the Court of the 3rd Munsif at Tamluk, Dist-Midnapore alleging that he got the suit land by a partition deed dated 9. 5. 68 and constructed pucca structure thereon. The plaintiff inducted Assistant Engineer, Panskura Construction Division No. 1 as tenant in the said premises at a rental of Rs. 500/- per month payable according to English Calendar month for his office. The defendant/respondent paid rent to the landlord upto December 1992 under receipt and thereafter he stopped payment of rent. The plaintiff requested defendant to vacate the suit premises on the ground of default and also for the reason that he needed it for his own occupation, but the defendant paid no heed to it. ( 4 ) FINDING no other alternative, the plaintiff-appellant issued a notice under section 106 of the Transfer of Property Act on 15. 2. 93 terminating the tendency of the defendant after March 1993. But the defendant failed to hand-over the khas possession of the suit premises to the plaintiff within the period prescribed in the aforesaid notice. Accordingly, the plaintiff-appellant has filed suit for eviction against the defendant-appellant. ( 5 ) THE defendant-appellant has contested the suit before the trial Judge by filing a written statement denying and disputing the material averments made in the plaint. Accordingly, the plaintiff-appellant has filed suit for eviction against the defendant-appellant. ( 5 ) THE defendant-appellant has contested the suit before the trial Judge by filing a written statement denying and disputing the material averments made in the plaint. The defendant challenged the maintainability of the suit on various grounds and has also stated that the notice under section 106 of the T. P. Act was not legal and valid and it was not duly served according to law. It was also stated by the defendant that the Assistant Engineer, Panskura Sub-Division No. 1 being the actual tenant under the plaintiff he was a necessary party to the suit. The claim of the plaintiff-appellant for eviction was not genuine and the present suit has been brought by the plaintiff only with a view to enhance the rate of rent. Accordingly, they prayed for dismissal of this suit. ( 6 ) MR. H. M. Dutt, the learned counsel appearing on behalf of the appellant drawing my attention to the paragraph 10 of the plaint has contended before me that in paragraph 10, the plaintiff-appellant in categorical term has stated about sending of first notice under section 106 of T. P. Act on 30. 11. 92 by registered post and in the said paragraph it has been also categorically pleaded that since there were some defects in the fist notice waiving the aforesaid notice, another notice was again sent on 15. 2. 93 by registered post and the defendant has accepted that notice on 17. 2. 93. ( 7 ) SRI Dutt, drawing my attention to the W. S. filed on behalf of the respondent/defendant, has contended that paragraph 10 of the plaint has been traversed in the para 13 of the W. S. Drawing my attention to the paragraph 13 of the W. S. it has been contended by him that with regard to the waiver of the first notice under section 106 of the T. P. Act, no specific denial has been made by the defendant-respondent in their written statement. Only it has been stated that the statements made in para 9 and 10 are incorrect. He has further submitted that the plaintiff in course of his examination before the trial Judge as PW 1 has in categorical terms deposed that he served notice under section 106 of the T. P. Act upon the defendant by registered post on 30. Only it has been stated that the statements made in para 9 and 10 are incorrect. He has further submitted that the plaintiff in course of his examination before the trial Judge as PW 1 has in categorical terms deposed that he served notice under section 106 of the T. P. Act upon the defendant by registered post on 30. 11. 92. Then he waived that notice due to formal defects. Then again he served notice upon defendant under section 106 of the T. P. Act on 15. 2. 93 by registered post. The aforesaid evidence regarding the waiver of the first notice has not been challenged by defendant/respondent during cross-examination of the plaintiff-appellant. Rather the plaintiff in course of his cross-examination has also stated that the defendant-tenant did not act upon said notice. In course of adducing evidence by the defendant himself as P. W. 1, no denial has been given on behalf of the defendant with regard to claim of the plaintiff regarding the waiver of the first notice, sent by plaintiff. ( 8 ) THE learned counsel, Mr. Dutt appearing for the plaintiff-appellant with reference to the pleading as mentioned above and the evidence on record has contended before me that the aforesaid materials taken together with the provisions of Order VIII Rule 5 of Civil Procedure Code will conclusively show that the claim regarding waiver of the first notice by the plaintiff has amply been substantiated in the instant case, and as such the learned First Appellate Court was not at all justified in coming to the contrary conclusion when there was overwhelming evidence and clear pleading in the plaint regarding waiver of the first notice and in that view of the fact, the findings of the First Appellate Court, taking a contrary view would certainly be regarded as a perverse finding. Therefore, this Court sitting in second appeal is certainly entitled to interfere with such finding of the learned First Appellate Court. ( 9 ) MR. Dutt appearing for the appellant has submitted before me that the learned First Appellate Court has relied upon a decision reported in AIR 1968 SC 471 in the case of Calcutta Credit Corporation Ltd. and Anr. ( 9 ) MR. Dutt appearing for the appellant has submitted before me that the learned First Appellate Court has relied upon a decision reported in AIR 1968 SC 471 in the case of Calcutta Credit Corporation Ltd. and Anr. v. Happy Homes (Private) Ltd. , and also upon a decision reported in 1978 (2) CLJ 163 in the case of Priyakanta Ghosh v. Nishi Kanta Saha as placed by the present respondent as appellant before the said Court and relying upon the ratio of the aforesaid decisions has decided the present case in hand, although the said ratios are not applicable in the facts and circumstances of the present case. ( 10 ) IN this connection, it has further been submitted by Mr. Dutt that the learned First Appellate Court was not at all justified in placing reliance on the ratio of the aforesaid decision of the case reported in AIR 1968 SC (supra), as the context was somewhat different from the present case inasmuch as in that case the tenant Allen Berry by their notice of August 12, 1953 intimated their intention to vacate the premises on August 31, 1953 at 3. 30 p. m. They thereafter withdrew this intimation by the letter dated August 25, 1953. The landlord, however, did not agree with the withdrawal of the notice dated August 12, 1953 and insisted that possession of the demised premises be delivered accordingly. ( 11 ) IT has further been submitted by him that the learned First Appellate Court was not also justified in placing his reliance on the ratio of the decision reported in 1978 (2) CLJ 163 (supra) inasmuch as in that case, a notice to quit was duly served on the tenant on 16. 3. 67 whereby the tenancy of the defendant was determined, but in 1969 a second notice to quit was again served on the defendant calling upon him to vacate the premises by the end of April, 1969. In the second notice to quit, there was no reference of the earlier notice to quit and on the basis of the second notice to quit the instant suit was brought. In the second notice to quit, there was no reference of the earlier notice to quit and on the basis of the second notice to quit the instant suit was brought. In that case, it was further held that by the first notice to quit the tenancy of the defendant was duly terminated by the end of April, 1967 and there was nothing on the record to show that the said notice to quit was illegal and invalid and/or the said notice did not terminate the defendant's tenancy and unless it was proved by the plaintiff that the fist notice had been waived, the plaintiff's suit based on the 2nd notice to quit must be held to be not maintainable. ( 12 ) AGAIN it has been reiterated by him that in this particular case, there is clear averment by the plaintiff in his plaint with regard to the waiver of the first notice and in course of his evidence as PW 1 he has also stated like that and the pleading of the plaintiff being not traversed by way of specific denial in the W/s and the specific evidence of the plaintiff in this regard having not challenged during cross-examination, it shall have the effect of an admission and that being the position, it should be treated from the conduct of the parties that they, in spite of the termination of the tenancy by the first notice, agreed that old tenancy will continue and that being the position of the evidence and the materials on record, the learned First Appellate Court was not at all justified in coming to the conclusion that the plaintiff has failed to discharge the burden that the first notice issued by him was waived and the consequent finding of the learned First Appellate Court to the effect that the second notice to quit was neither valid nor legal cannot also be accepted inasmuch as there is also further evidence and the materials on record that the defendant paid rent to the plaintiff up to 31. 3. 93 which also remain unchallenged during cross-examination by the defendant-respondent. ( 13 ) MR. 3. 93 which also remain unchallenged during cross-examination by the defendant-respondent. ( 13 ) MR. Dutt further submitted that since the finding of the learned First Appellate Court was arrived at ignoring important and relevant evidence, the finding is bad in law and it is therefore, permissible for this Court to look into the evidence and materials on record where the learned Appellate Court has ignored the weight of the evidence and the materials on record altogether. ( 14 ) HE has further submitted that the inference and conclusion drawn by the First Appellate Court against the weight of evidence and the materials on record is therefore, perverse and in this case the First Appellate Court having reached to an inference contrary to the evidence on record and/or based on misreading of evidence on record, the High Court is certainly entitled to correct such errors in the second appeal. ( 15 ) MR. Dutt has further contended that the findings of the First Appellate Court in this case, therefore, should be treated as perverse and arbitrary and in view of the fact that there has been overwhelming evidence and clear pleading adduced and produced by the plaintiff regarding waiver of the first notice. ( 16 ) HE, therefore, submits that it is a fit case where the High Court should interfere with the findings of the First Appellate Court as the First Appellate Court has failed to appreciate the substantial question of law with regard to the effect of notices issued on 31st November, 1992 as also on February 15, 1993 issued by the appellant in favour of the respondent in view of the provisions of section 113 of the T. P. Act. ( 17 ) MR. Debashis Roy learned counsel appearing for the respondent-defendant has contended before this Court that the plaintiff in his plaint has alleged that there is formal defect in the first notice. But nowhere it has been spelt out by them that what was the defect in the notice itself nor the plaintiff has taken any steps to produce the said notice or copy thereof before any of the Courts to ascertain whether there is really any formal defect or not. But nowhere it has been spelt out by them that what was the defect in the notice itself nor the plaintiff has taken any steps to produce the said notice or copy thereof before any of the Courts to ascertain whether there is really any formal defect or not. In view of the aforesaid position, the first notice should be treated as good and valid and as such no waiver is permissible and since the defendant has not agreed specifically to the waiver of the first notice, in the eye of law, it cannot be treated that really such notice has been waived. He has further submitted that the valid notice being issued earlier no determination is permissible on the basis of the second notice until and unless the first notice is treated to be waived by the parties. He has further contended that in view of the above position the First Appellate Court was absolutely within his competence to hold that the plaintiff having failed in discharge their onus that the first notice was waived, the second notice to quit issued by the plaintiff against the self-same defendant cannot be treated as legal and valid. And as such no interference with the judgment and finding of the First Appellate Court is permissible and there exists no substantial question of law. He has further contended that the High Court's jurisdiction being confined to the substantial question of law, it is well settled that a finding of fact is not open to challenge even if the appreciation of the evidence is palpably erroneous and finding of fact recorded is grossly erroneous. He therefore, submits that there is no merit in the appeal itself. ( 18 ) BUT I am afraid that I cannot agree with the contention of learned counsel appearing for the respondent inasmuch as the issuance of valid notice for determination of tenancy being a sine qua non for bringing a suit for eviction, the effect of the notice, issued by the landlord against the tenant has a far-reaching effect touching the merit and maintainability of the suit itself and as such that should be regarded as a substantial question of law. ( 19 ) THEREFORE, the jurisdiction of the High Court to entertain such appeal which involves substantial question of law cannot be ignored altogether. ( 19 ) THEREFORE, the jurisdiction of the High Court to entertain such appeal which involves substantial question of law cannot be ignored altogether. ( 20 ) THAT being the position upon reading the pleadings of the parties in the matter of issuance of notices of ejectment and the position of evidence regarding waiver of the first notice of ejectment as adduced by plaintiff-landlord as PW 1 and the other connected materials, I am rather inclined to hold, accepting the contention of the learned advocate appearing for the appellant, that though the first notice was issued by the plaintiff-appellant against defendant/respondent, yet, from the available materials it is quite clear that the parties by their act and intention nullified the operation of first notice to quit and regarded that the tenancy will continue till it was validly determined by the issuance of the second notice from the side of the plaintiff-landlord. In the instant case on sifting the available materials, I am of the further opinion that the learned First Appellate Court has failed to appreciate the evidence and the materials on record in their true perspective and as such came to an erroneous finding holding that the second notice was not at all valid and legal. ( 21 ) THE learned 1st Appellate Court was also not justified in placing reliance upon the ratio of the aforesaid two decisions in the case of Calcutta Credit Corporation Ltd. and Anr. v. Happy Homes (P) Ltd. (supra) and in the case of Priyakanta Ghosh v. Nishi Kanta Saha (supra) inasmuch in the instant case there is clear and overwhelming evidence that parties by their act and intention nullified the operation of the 1st Notice to quit and regarded that the tenancy will continue till it was validly terminated by the 2nd notice and in this case since there is also overwhelming and cogent evidence on record produced from the said of the plaintiff/appellant that by issuance of 2nd notice, the tenancy in question has been validly determined, the plaintiff/appellant is entitled to get a decree for eviction the defendant/respondent. ( 22 ) THE finding of the 1st Appellate Court, therefore, being perverse is untenable in law and the same should be set aside. ( 22 ) THE finding of the 1st Appellate Court, therefore, being perverse is untenable in law and the same should be set aside. Now upon ultimate analysis of the evidence and materials on record, I am of the clear opinion that in the instant case the plaintiff-appellant is entitled to a decree for ejectment against the defendant-respondent. Accordingly, the judgment and decree passed by the learned First Appellate Court should be set aside and those of the trial Judge should be restored. ( 23 ) IN the result, the appeal succeeds. Accordingly, the appeal is, hereby, allowed and the decree passed by the trial Judge is restored with the following modification. The defendant-respondent is hereby directed to vacate the suit premises within the period of three months from date, failing which the plaintiff-appellant shall be entitled to recover possession of the suit premises by way of executing the decree through Court. Parties will, however, bear the respective costs. Appeal succeeds