JUDGMENT:- Being aggrieved by the judgment and decree dated 24th June 1992 passed by the 8th Additional District Judge, Thane in Regular Civil Appeal No.142 of 1991 by which the lower Appellate Court reversed the judgment and decree dated 11th April 1991 passed by the Trial Court in Regular Civil Suit No. 56 of 1989 and dismissed the suit that was decreed by the Trial Court. 2. In support of the appeal, the learned counsel for the Appellant landlord submitted that the provisions of the Bombay Rent Act do not have any application to the suit premises and therefore the Appellant landlord had issued a notice to the Respondent Defendant under section 106 of the Transfer of Property Act, 1882 (TP Act) terminating the tenancy of the Respondent and then since the premises were not vacated, the suit was brought by the Appellant Plaintiff. The learned Trial Judge held that the Appellant Plaintiff was entitled to possession of the suit property and also that rent was due from 1989 till possession. He submitted that the Trial Judge decreed the suit and held that the notice under section 106 of the TP Act that was issued by the Plaintiff Appellant was legal and valid and accordingly directed the delivery of vacant and peaceful possession of the suit property to the Appellant Plaintiff so also the decree for rent was made. The lower Appellate Court, however, according to the learned counsel for the Appellant, wrongly held that the notice under section 106 of the TP Act was not legal and that the Trial Court was wrong in passing the decree for possession. The lower Appellate Court also wrongly held that the Defendant was not using the premises for last two years before filing of the suit. The only reason why the lower Appellate Court held the notice under section 106 of the TP Act as illegal is that the premises were given for a bakery and that by mere use of the word "bakery" means manufacturing unit and therefore there is necessity of six months notice for termination of tenancy. According to him even if monthly rent was being paid during the tenancy, the same was subject to the provisions of law. According to him even if monthly rent was being paid during the tenancy, the same was subject to the provisions of law. The learned counsel for the Appellant then submitted that as per the local usage, the tenancy, even if for bakery, was a monthly tenancy and that is admitted and proved and there was no reason for the lower Appellate Court to assume that the lease was for manufacturing purpose in the absence of any specific details or evidence. He, therefore submitted that the decree passed by the Trial Judge is required to be restored by reversing the judgment and decree passed by the lower Appellate Court. 3. Per contra, the learned counsel for the Respondent tenant supported the impugned judgment and decree made by the lower Appellate Court and submitted that the Appellant Plaintiff himself pleaded that the premises were given for a bakery and therefore, "bakery" necessarily means a manufacturing unit and if that is so, the lower Appellate Court was right in holding that the provisions of section 106 of the TP Act in relation to the manufacturing purpose prevail over the agreement or conduct of the parties, if any. He, then, submitted that therefore, the suit was rightly dismissed by the lower Appellate Court. In the alternative, he prayed for some period to vacate the suit premises. 4. Upon hearing the learned counsel for the rival parties, I frame the following substantial questions of law: Question : a) Whether it is proved that the agreement of tenancy of the suit premises was for running a manufacturing unit, namely bakery ? b) Whether the lower Appellate Court committed an error in not finding that the Appellant Plaintiff had specifically pleaded a case of usage as contemplated under section 106 of the TP Act providing for monthly lease duly agreed between the parties as per usage and consequently the notice of termination of tenancy was legal and valid? c) What order? Answer: a) No. b) Yes. c) Second Appeal is allowed. 5. I have perused the plaint averments. Paragraph 1 of the plaint states that the suit shed was given to the Respondent Defendant by the Plaintiff as a monthly tenant as per the agreement and local usage and that the rent fixed was Rs.100/- p. m. at village Kelve, Tq. Palghar, Dist. Thane. c) Second Appeal is allowed. 5. I have perused the plaint averments. Paragraph 1 of the plaint states that the suit shed was given to the Respondent Defendant by the Plaintiff as a monthly tenant as per the agreement and local usage and that the rent fixed was Rs.100/- p. m. at village Kelve, Tq. Palghar, Dist. Thane. In paragraph 2, it is stated that the Defendant was using the said premises for a bakery and that for the last two years, he has closed the premises and was neither paying the rent nor vacating the suit premises. Hence, the notice under section 106 was served on him on 4th April 1989 terminating his tenancy w.e.f. 30th April 1989 but there was no compliance. Therefore the suit was filed. 6. I have perused the written statement filed by the Defendant. In the written statement, the Respondent Defendant denied that he was not running bakery for last two years. In reply to paragraph 1, he gave evasive reply and therefore as per the settled legal position, the averments made in paragraph 1 are deemed to have been accepted by him. In the entire written statement, he nowhere stated that the premises was obtained on tenancy for manufacturing purpose of bakery but he merely stated that he was running a bakery in the suit premises. He did not even deny that the tenancy was monthly. In the evidence, the Appellant entered into witness box and stated that as per the tradition and custom and usage in the village, the premises was let out on monthly basis. He then stated about the non payment of rent etc. and submitted that he had terminated the tenancy of Respondent Defendant who did not give possession. In the cross-examination, not even a single suggestion was given that the tenancy was for a manufacturing purpose and therefore the notice for six months rather than one month was required. Even the evidence of the tradition and custom or usage was not challenged in the cross-examination. At this stage, it would be appropriate to quote the finding from the judgment of the Trial Court in paragraph 24 in answering to issue Nos.3 and 4 which read thus: "24. Even the evidence of the tradition and custom or usage was not challenged in the cross-examination. At this stage, it would be appropriate to quote the finding from the judgment of the Trial Court in paragraph 24 in answering to issue Nos.3 and 4 which read thus: "24. The Defendant admitted that he is monthly tenant in the premises and Ex.20 to 45 also speaks that Defendant was monthly tenant and Plaintiff terminated the tenancy of the Defendant by Notice Exh.18. No Rent Control Act is applicable to the village Kelve. The Plaintiff stated that he has 6 married children residing in the another room. His family is growing family and Plaintiff therefore in need of suit premises. The Defendant in his cross-examination also admitted that Plaintiff and his all the sons are residing in the one house and their family is growing family." 7. In view of the above, it is clear that notice under section 106 of the TP Act was given due to the agreement of the monthly tenancy and local custom or usage. Section 106 of the TP Act reads thus: 106. Duration of certain leases in absence of written contract or local usage.- . (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. 8. Perusal of the said section clearly shows that it opens with the words "in the absence of a contract or local law or usage to the contrary......" It is thus clear that in the present case, the contract and usage was clearly proved and therefore, even if the lease was for bakery, the same was treated as monthly tenancy. That apart, as already held, there was neither any pleading nor record to show that the agreement was for leasing out the suit property for running a manufacturing unit. Merely because the word bakery is used, it is not necessary that the lower Appellate Court could have jumped to a conclusion that the "bakery" necessarily means manufacturing unit in absence of actual or specific evidence to that effect. On the contrary, the written statement and the evidence of the Defendant is totally silent as to the argument of tenancy on that aspect nor the Defendant deposed that he was manufacturing any products in so-called bakery. Thus, the finding recorded by the lower Appellate Court is clearly illegal and based on an imagination. 9. To sum up, both the questions in the light of the above discussion will have to be answered accordingly. Hence, question No.1 answered in the negative and question No.2 in the affirmative. In the result, I make the following order. ORDER a) Second Appeal No.111 of 1993 is allowed with costs throughout. b) The impugned judgment and decree passed in RCA No.142 of 1991 dated 24th June 1992 by 8th Additional District Judge, Thane is set aside. Hence, question No.1 answered in the negative and question No.2 in the affirmative. In the result, I make the following order. ORDER a) Second Appeal No.111 of 1993 is allowed with costs throughout. b) The impugned judgment and decree passed in RCA No.142 of 1991 dated 24th June 1992 by 8th Additional District Judge, Thane is set aside. c) The judgment and decree dated 11th April 1991 passed in Regular Civil Suit No.56 of 1989 by the Civil Judge, Junior division is restored. d) The Respondent shall vacate the suit premises within a period of three months from today. e) In view of disposal of the second, Civil Application No.335 of 2012 does not survive. Same stands dismissed as infructuous. Appeal allowed.