JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. G.N. Sahewalla, learned Senior Counsel for the appellant. Also heard Ms. P. Bhattacharjee, learned counsel appearing for the respondents. 2. The second appeal is preferred by the defendant No. 1 against the judgment and decree dated 05.10.2005 passed by the learned Civil Judge (Sr. Divn.), Jorhat in Title Appeal No. 14/2005, dismissing the appeal by confirming the judgment and decree dated 06.12.2004 passed by the learned Civil Judge (Jr. Divn.), Jorhat in Title Suit No. 92/1997, whereby the suit of the plaintiff was decreed. 3. This second appeal was admitted to be heard by an order dated 18.01.2006 on the following substantial questions of law: "1. Whether a tenant under a void lease becomes a lessee once rent is paid and accepted and whether courts below acted illegally in holding the appellant as permissive occupier only and granting the benefit of a lease? 2. Whether notice under Section 106 of T.P. Act, is a must and is to prove even if the tenancy is treated as monthly and whether courts below erred in holding that no notice under Section 106 of T.P. Act is required merely because lease deed was not registered although rent was accepted?" 4. The learned counsel for the parties submit that in substantial questions of law No. 1 the word "not" after the word "and" before the word "granting" is dropped. It is also pointed out that "is to prove" in substantial question of law No. 2 should be read as "is to be proved". It is apparent that inadvertently some mistakes had cropped up in framing the substantial questions of law and the substantial questions of law framed have to be considered in the light of the submissions of the learned counsel for the parties. 5. The case of the plaintiff is that 4 Bigha 3 Katha 4 Lecha of land in Dag Nos. 1063 and 1064 of Periodic Patta No. 137 situated at No. 2 Gharpholia Gaon belonged to Baneswar Gogoi @ Ahom. The plaintiff and defendant Nos. 2 and 3 were nephews of Late Baneswar Gogoi and they lived in a joint family. Baneswar Gogoi died as a bachelor on 30.11.1987 leaving behind the plaintiff and the defendant Nos. 2 and 3 as his only heirs. Baneswar Gogoi was looked after by the plaintiff and the defendant Nos. 2 and 3. The plaintiff and defendant Nos. 2 and 3 were nephews of Late Baneswar Gogoi and they lived in a joint family. Baneswar Gogoi died as a bachelor on 30.11.1987 leaving behind the plaintiff and the defendant Nos. 2 and 3 as his only heirs. Baneswar Gogoi was looked after by the plaintiff and the defendant Nos. 2 and 3. Baneswar Gogoi had executed a Gift Deed on 08.10.1985 in favour of the plaintiff and the defendant Nos. 2 and 3 in respect of land including the aforesaid 4 Bigha 3 Katha 4 Lecha. All of them had equal shares and they divided the suit patta land amongst them during the lifetime of Baneswar Gogoi and the suit land measuring 1 Bigha is a portion of the land which had fallen in the share of the plaintiff. Baneswar Gogoi had executed an unregistered lease agreement with the defendant No. 1 in respect of the suit land for the period 16.11.1984 to 30.11.1987, whereupon the defendant No. 1 had installed a Stone Crushing Mill. After expiry of term, the plaintiff requested the defendant No. 1 to vacate the suit land with no avail. Thereafter, a legal notice was issued through an advocate to the defendant No. 1 to vacate the suit premises within 15 days from the date of receipt of the notice. It was also pleaded that Baneswar Gogoi had never executed any deed of agreement of sale of the suit land which was referred by the defendant No. 1 in reply to the legal notice issued on behalf of the plaintiff. It was pleaded that the defendant No. 1 was in unauthorized occupation of the suit land from 01.12.1987 and that he was a trespasser liable to be evicted in law. Accordingly, the plaintiff prayed for declaration of right, title and interest and for recovery of khas possession of the suit land, permanent injunction, compensation at the rate of Rs. 20/- per day against the defendant No. 1 from 01.12.1987 till the date of actual eviction of the defendant No. 1. 6. The defendant No. 1 filed a written statement stating that Gift Deed was not accepted by Golap Chandra Gogoi, defendant No. 2. It was denied that suit land was ever possessed by the plaintiff, defendant Nos. 2 and 3 and it was asserted that the defendant No. 1 was in possession. 6. The defendant No. 1 filed a written statement stating that Gift Deed was not accepted by Golap Chandra Gogoi, defendant No. 2. It was denied that suit land was ever possessed by the plaintiff, defendant Nos. 2 and 3 and it was asserted that the defendant No. 1 was in possession. It was also stated that Baneswar Gogoi had executed a deed of agreement on 18.04.1985 to sell the land at a consideration amount of Rs. 15,000/-, out of which, Rs. 3,000/- was received in advance by Baneswar Gogoi and it was stipulated that the sale deed would be executed within 3 years from 18.04.1985 but Baneswar Gogoi died in the meantime. He had also mentioned about filing of Title Suit No. 16/1988 against the plaintiff and defendant Nos. 2 and 3 for specific performance of the contract. He denied the allegation that he was a trespasser. 7. Initially, the suit was decreed by the learned Trial Court. However, in Title Appeal No. 63/1987 vide judgment and order dated 17.08.1994, the learned lower Appellate Court set aside the judgment and decree of the learned Trial Court and remanded the suit for fresh disposal after disposal of Title Suit No. 16/1988. Title Suit No. 16/1988, instituted by the defendant No. 1, was later on re-numbered as Title Suit No. 125/1994. The suit was dismissed by judgment dated 19.05.1999. Title Appeal was also dismissed. The second appeal preferred by the defendant No. 1 being RSA No. 20/2002 was also dismissed vide judgment and order dated 21.02.2002. 8. Thereafter, the learned Trial Court vide judgment and order dated 30.11.2004 again decreed the present suit. 9. During trial, registered Gift Deed was exhibited as Ext-1 and the agreement for sale was exhibited as Ext-Ka. 10. The learned Trial Court held the Gift Deed to be duly proved. The contention of the Defendant No. 1 that Golap Chandra Gogoi had not accepted the Gift Deed by signing it, was rejected in view of Section 122 of the Transfer of Property Act, 1882 (for short, the T.P. Act) which provides that acceptance may take place during the lifetime of the donor while he is still capable of giving. It was held that there are materials on record to show that defendant No. 2 had accepted the Gift Deed. It was held that there are materials on record to show that defendant No. 2 had accepted the Gift Deed. It was also held by the learned Trial Court that on amicable settlement, the suit land fell in the share of plaintiff and thus, he had right, title and interest over the suit land. The learned Trial Court also rejected the plea set out in the written statement that there was an agreement for sale, "Ext-Ka", executed by Baneswar Gogoi in favour of the defendant No. 1 in view of dismissal of the suit of the defendant No. 1 being T.S. No. 16/1988 renumbered as Title Suit No. 125/1994, which judgment was also affirmed by the High Court in second appeal. 11. The learned Trial Court, in view of the aforesaid findings, held that defendant No. 1 had been illegally occupying the suit land and accordingly, decreed the suit, also providing that plaintiff would be entitled to compensation at the rate of Rs. 200/- per month from 16.11.1987 till date of actual eviction. 12. The learned lower Appellate Court also reiterated the findings of the learned Trial Court. 13. It appears from the judgment of the learned lower Appellate Court that argument was advanced on behalf of the appellant that the defendant No. 1/appellant could not be evicted without terminating tenancy by issuing a notice under Section 106 of the T.P. Act. The learned lower Appellate Court held that the issuance of receipt of notice is admitted in paragraph 6 of the written statement. On the basis of the agreement, Ext-2, it was held that suit land was given to the appellant for three years at a monthly rent. It was also held that on the basis of Ext-2, it cannot be construed that there was relationship of lessor and lessee (between the defendant No. 1 and Baneswar Gogoi) and the appellant could be treated only as tenant at will, as rent was accepted and therefore, no notice under Section106 of T.P. Act was required, though given in the instant case. Holding that the position of the tenant at will is not better than a permissive occupier, the appeal was dismissed. 14. Mr. Holding that the position of the tenant at will is not better than a permissive occupier, the appeal was dismissed. 14. Mr. G.N. Sahewalla, learned Senior Counsel for the appellant submitted that defendant No. 1 had admittedly paid rent which was also accepted and therefore, the finding recorded by the learned lower Appellate Court that the appellant is only a tenant at will, whose position is no better than a permissive occupier is not sustainable in law. Mr. Sahewalla has also assailed the finding recorded that no notice under Section 106 of T.P. Act was required to be issued in the facts and circumstances of the case, as not tenable in law. Drawing attention to Section 106 of T.P. Act, the learned Senior Counsel submits that in the instant case, Ext-2 having been held to be invalid, as the same was not registered and signed by both the lessor and the lessee, the lease of the immovable property in question must be deemed to be a lease from year to year, as according to him, lease was taken by the defendant No. 1 for manufacturing purpose. The learned Senior Counsel submits that the lease could be terminated only by giving six months' notice, which, admittedly was not given as only fifteen days' notice was given by the plaintiff. Mr. G.N. Sahewalla has cited decisions in the case of- (i) R.V. Bhupal Prasad v. State Of Andhra Pradesh & Ors; reported in (1995) 5 SCC 698 , (ii) Tulsi v. Paro (dead) by LRs. reported in (1997) 2 SCC 706 and (iii) P.C. Cheriyan v. Mst. Barfi Devi, reported in AIR 1980 SC 86 . 15. Ms. P. Bhattacharjee, learned counsel for the respondents submits that no such plea as sought to be raised by the learned Senior Counsel was either pleaded or canvassed before the learned lower Appellate Court or the learned Trial Court. Even going by the substantial questions of law, learned counsel submits that the appellant projected the case of monthly tenancy and not yearly tenancy. It is submitted by her that in the instant case, due notice of 15 days was given. Even going by the substantial questions of law, learned counsel submits that the appellant projected the case of monthly tenancy and not yearly tenancy. It is submitted by her that in the instant case, due notice of 15 days was given. It is submitted by her that even otherwise as a result crushing of stone by the machine installed, no new product emerges and the stone remains a stone and therefore, there was no manufacturing activity and on that count also submissions of the learned Senior Counsel for the appellant does not merit acceptance. Ms. Bhattacharjee relies on the following decisions: (i) P.C. Cheriyan v. Mst. Barfi Devi, reported in AIR 1980 SC 86 , (ii) Dy. Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. Coco Fibres, reported in (1992) Supp 1 SCC 290, (iii) South Bihar Sugar Mills. Ltd., etc. v. Union of India and Ors., reported in AIR 1968 SC 922 , (iv) Idandas v. Anant Ramchandra Phadke (Dead) by LRs., reported in AIR 1982 SC 127 , (v) Allenbury Engineers Pvt. Ltd. v. Shri Ram Krishna Dalmia, reported in AIR 1973 SC 425 and (vi) Lal Chand v. Radha Ballabh, reported in AIR 1959 Rajasthan 240. 16. I have considered the submissions of the learned counsel for the parties and have perused the evidence and materials on record. 17. Ext-2 is an unregistered document signed by only the defendant No. 1/appellant. It was dated 16.11.1984 and it recites that he had taken 1 Bigha of land as mentioned in the Schedule for a period of three years commencing from 11.12.1984 at the rate of Rs. 200/- per month. 18. Section 105 of T.P. Act defines lease and it states that a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be rendered is called the rent. 19. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be rendered is called the rent. 19. In Tulsi (supra), it is stated as follows: "It is not necessary that lease should always be reduced to writing. What is necessary is for transfer of a right of enjoyment of the property made for a certain time, expressed or implied and for consideration of the price, paid or promised, the transferee must have been put in possession of the demised property. It is also necessary that an agreement can be entered into for rendering periodical service and for consideration thereof and on transfer of the land to the transferee and acceptance thereof, either orally or in writing, the lease comes into existence...." 20. Section 107 of T.P. Act prohibits creation of a lease of immovable property from year to year or for a term exceeding one year or receiving/reserving a yearly rent by an instrument other than a registered instrument. It is also provided that registered instrument shall be executed by both the lessor and the lessee. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. As Ext-2 was signed by only the lessee and as it was for a term of more than three years, the learned lower Appellate Court was correct in holding that Ext-2 is not a valid lease. 21. But there is no manner of doubt that a tenancy was certainly created as Ext-2 was accepted and rent was also received. The nature of such tenancy, Ext-2 having fallen on account of its being invalid as a lease, necessarily will be a monthly tenancy. In Lal Chand (supra), the Rajasthan High Court had also held that an unregistered Kabuliyat in respect of a shop for a term of three years and signed by the tenant results in a monthly tenancy. 22. The nature of such tenancy, Ext-2 having fallen on account of its being invalid as a lease, necessarily will be a monthly tenancy. In Lal Chand (supra), the Rajasthan High Court had also held that an unregistered Kabuliyat in respect of a shop for a term of three years and signed by the tenant results in a monthly tenancy. 22. Section 106(1) of the T.P. Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agriculture 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. Prior to the amendment of Section 106 w.e.f. 31.12.2002, six months' notice as well as fifteen days' notice were followed by the words "expiring with the end of the month of the tenancy." 23. Mr. Sahewalla had contended that the appellant, by installing the stone crushing machine, had undertaken manufacturing activity and therefore, the lease must be deemed to be a lease from year to year requiring six months' notice for termination. It is relevant to note that no issue was framed with regard to validity of the notice issued by the plaintiff. No plea was also taken by the defendant No. 1 in the written statement that the notice issued by the plaintiff did not meet the requirements of law. As the learned counsel for the respondent had cited number of judgments, it will be appropriate to take note of the same to come to a conclusion whether stone crushing results in manufacturing activity. 24. As per Black's Law Dictionary (5th Edition) as reflected in Dy. Commissioner of Sales Tax (Law) (supra), the word "manufacture" has been defined as "the process or operation of making goods or any material produced by hand, by machinery or by other agency; anything made from the raw materials by the hand, by machinery, or by art; the production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine". In the context of General Sales Tax Act, it was held that by process of manufacture something is produced and brought into existence which is different from that, out of which it is made in the sense that the things produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties. 25. In South Bihar Sugar Mills Ltd. (supra), the Apex Court held that the word "manufacture" implies a change, but every change in the raw material is not manufacture. There must be such transformation that a new and different article must emerge having a distinctive name, character or use. 26. As stated in Idandas (supra), the tests for determining whether a lease is granted for purpose of "manufacturing process" are as follows: "1. That it must be proved that a certain commodity is produced. 2. The process of production must involve labour or machinery. 3. The end product which comes into existence after manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed as to lose its original character." 27. In the aforesaid case, production of flour from wheat was held to be a manufacturing process as while wheat cannot be consumed by any human being, flour is fit for human consumption and as it had also satisfied the other tests. 28. As stated by the Apex Court in Allenbury Engineers (supra), the expression manufacturing purpose in Section 106 means purposes for making or fabricating articles or materials by physical labour, or skill or by mechanical power, vendible and useful as such. Such making or fabricating does not merely mean a change in an already existing article or material but transforming it into a different article or material having a distinct name, character or use or fabricating a previously known article by a novel process. 29. In paragraph 6 of P.C. Cherian (supra), while dealing with the expression "manufacture", the Supreme Court quoted Permanent Edition of Words and Phrases, Vol. 26, which is as follows:-- "Manufacture implies a change, but every change is not manufacture and yet every change in article is the result of treatment, labour and manipulation. 29. In paragraph 6 of P.C. Cherian (supra), while dealing with the expression "manufacture", the Supreme Court quoted Permanent Edition of Words and Phrases, Vol. 26, which is as follows:-- "Manufacture implies a change, but every change is not manufacture and yet every change in article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation, a new and different article must emerge having a distinctive name, character or use." 30. In paragraph 10 of P.C. Cheriyan (supra), the Apex Court held that the broad test for determining whether a process is a manufacturing process, is whether it brings out a complete transformation of the old components so as to produce a commercially different article or commodity and applying the above test, it was held that retreading of old tyre do not bring a commercially distinct or different entity as the old tyre retains its original character or identity as a tyre. The Apex Court also sounded a note of caution that the definition of expression, "manufacturing process" finding place in various enactments cannot be straightway applied to Section 106 T.P. Act as in some enactments, manufacturing process had been given an extended meaning. 31. The expression "manufacturing purposes" has not been defined in the T.P. Act. It is, therefore, to be construed in its popular sense. In a manufacturing process, the process of production must involve labour or machinery. The end product must be a commercially distinct or different entity having distinctive name, character and use. 32. Stone crushing machine, as the name itself suggests, is used to crush stones to make them smaller in size. What emerges from the crushing of stones is also stone, though smaller in size, and it never loses the original character of stone. Thus, it cannot be said that any manufacturing process is undertaken by means of a stone crushing machine and therefore, the argument of Mr. Sahewalla that in the instant case six months' notice was required to be given is found to be without any merit. Substantial question of law No. 2 is answered holding that due notice was given by the plaintiff. 33. The learned lower Appellate Court had used the expression tenant at will to indicate the relationship of the appellant with Baneswar Gogoi. Substantial question of law No. 2 is answered holding that due notice was given by the plaintiff. 33. The learned lower Appellate Court had used the expression tenant at will to indicate the relationship of the appellant with Baneswar Gogoi. The meaning of the expressions, namely, tenant at sufferance, tenant at will and holding over had been elaborately discussed in paragraph 8 of R.V. Bhupal Prasad (supra) and the same is extracted hereinbelow: "8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical." 34. The expression "holding over" is used to indicate a lessee or tenant retaining possession after expiration of the term of the lease or tenancy. Such possession or "holding over" does not necessarily create a tenancy of any kind but the possession of a tenant who has ceased to be a tenant is protected by law. A tenant may be continuing in possession after determination of the lease with the consent of the lessor or without the consent of the lessor: If it is without the consent, the tenant is called a tenant at sufferance; if it is with the consent of the lessor, he is a tenant at will. The relationship of landlord and tenant is established only when rent is paid and accepted. 35. There is no evidence that the appellant was "holding over" with the consent of the lessor and therefore, he is, in reality, a tenant at sufferance. The learned lower Appellate Court was not correct in holding the appellant to be a tenant at will. The learned lower Appellate Court was also not justified in holding that position of a tenant at will is no better than a permissive occupier. The possession of a tenant who has ceased to be a tenant is protected by law and his possession cannot be equated with permissive possession. However, aforesaid observations of learned lower Appellate Court will not have any bearing in this case inasmuch as notice, as required under Section 106 of T.P. Act, was duly given. The possession of a tenant who has ceased to be a tenant is protected by law and his possession cannot be equated with permissive possession. However, aforesaid observations of learned lower Appellate Court will not have any bearing in this case inasmuch as notice, as required under Section 106 of T.P. Act, was duly given. Substantial question of law No. 1 is answered as indicated above. 36. In view of the above discussions, I find no merit in this appeal and accordingly, the same is dismissed. No cost. 37. Registry will send back the records.