JUDGMENT : 1. The present first appeal has been filed against the impugned judgment and decree dated 05.08.2022 passed by the Additional District Judge, No.1, Chittorgarh, Camp Kapasan in Civil Original Suit No.26/2014 (CIS No.815/2014) whereby the suit for eviction and arrears of rent as filed by the plaintiff has been decreed. 2. The suit for eviction was preferred by the respondent – plaintiff with an averment that the shop in question was rented out to defendant Ratan Lal on rent @ Rs.6,000/-per month. As he wanted to raise one more floor, he sought permission from the municipality for the same and therefore, wanted the premise to be vacated. Notice dated 04.10.2013 in terms of Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act of 1882’) for termination of tenancy was served on the defendant which was received by him on 14.10.2013. Vide the said notice, the tenancy was terminated w.e.f. 31.10.2013. But even after the said termination, the tenant did not vacate the premise and hence the suit for eviction was filed. It was also averred that the tenant had last paid the rent for the period from 01.04.2010 to 31.07.2010 (Rs.24,000/-@ Rs.6,000/-per month) only and hence a prayer for arrears of rent as well as mense profits was also made. 3. Written statement to the plaint was filed by the defendant wherein he averred that he was a tenant from last 40 years and the rent agreed upon between the parties was Rs.28,000/-per annum and not Rs.6,000/-per month as alleged by the plaintiff. It was further pleaded that an oral agreement was entered into between the parties in the year 2014 whereby the term of tenancy was further extended for a period of 5 years and hence he could not be directed to be evicted prior to the year 2019. Regarding the arrears of rent, it was submitted that he had deposited an amount of Rs.28,000/-qua the annual rent for the period from April, 2013 to March, 2014 and information of the same was even given to the plaintiff vide notice dated 07.05.2014. The defendant also pleaded that the plaintiff had no bonafide need of the shop in question as he was the owner of many other shops and residential premises. 4. The defendant also pleaded that the plaintiff had no bonafide need of the shop in question as he was the owner of many other shops and residential premises. 4. On basis of the pleadings, the learned trial Court framed as many as 5 issues, which read as under: ^^1- vk;k oknh dh okn i= ds en ua- 1 esa of.kZr iMkSlksa dh nqdku izfroknh ds 6000@& :i;s izfrekg fdjk;s ij gS \ oknh 2- vk;k oknh }kjk izfroknh dks fnukad 04-10-2013 dks fn;s x;s uksfVl ls fnukad 31-10-2013 ls izfroknh dh fdjk;snkjh lekIr dj nh \ oknh 3- vk;k oknh dk izfroknh dh vksj fnukad 01-08-2010 ls fdjk;snkjh lekfIr dh fnukad 31-10-2013 rd rhu lky dk 2]16]000@& :i;s fdjk;k ,oa 01-11-2013 ls dCtk izkIr gksus rd mi;ksx gtkZuk jkf'k nl gtkj :i;s izfrekg dh nj ls cdk;k gS tks oknh izfroknh ls izkIr djus dk vf/kdkjh gS \ oknh 4- vk;k oknh izfroknh ls oknxzLr ifjlj dk fjDr dCtk izkIr djus dk vf/kdkjh gS \ Oknh 4,- vk;k okn i= esa fdjk;k fpB~Bh dk mYys[k ugha gksus dk D;k izHkko gksxk \ izfroknh 5- vuqrks"k** 5. The plaintiff examined himself (PW1 Satya Narain) and one other witness PW2 Ram Sahaya and got exhibited 5 documents (Ex.1 to Ex.5) whereas the defendant examined himself (DW1 Ratan Lal) and one other witness DW2 Shankar Lal and got exhibited 6 documents (Ex.A1 to Ex.A6). 6. After hearing the parties and considering the material available on record, learned trial Court decided issue Nos.1, 2, 4 & 4A in favour of the plaintiff and issue No.3 partially in his favour. As a consequence, the Court proceeded on to decree the suit of the plaintiff for eviction directing the defendant to vacate the shop in question within a period of 45 days. The suit was also decreed for an amount of Rs.1,86,000/-qua the arrears of rent with interest @ 6% per annum and further for Rs.7,500/-per month qua the use and occupation till the date of handing over the vacant possession of the shop. 7. Learned Senior counsel for the appellant submitted that the Court below erred in deciding issue No.4A against the tenant appellant despite the fact that no pleading qua the rent note (Ex.5) was even made in the plaint. On a fact/document not pleaded, no evidence can be permitted to be led and as a consequence the document cannot be read in evidence. On a fact/document not pleaded, no evidence can be permitted to be led and as a consequence the document cannot be read in evidence. Learned counsel submitted that this was a clear case of variance in pleading and proof and therefore the finding of the Court below on issue No.4A was totally in contravention to law. In support of his contention, learned counsel relied upon the judgments rendered in Biraji Alias Brijraji and Another Vs. Surya Pratap and Others, (2020) 10 SCC 729 ; M. Chinnasamy Vs. K.C. Palanisamy and Others, (2004) 6 SCC 341 and Shivanshu Atre Vs. Smt. Reena Atre, 2018(2) RLW 1459 (Raj.). 8. Learned Senior counsel further submitted that it was clearly proved on record that the tenancy was not per month basis but was per year basis. The notice (Ex.A1) whereby the defendant informed the plaintiff of depositing the rent @ Rs.28,000/-per annum was not denied, controverted or rebutted by the plaintiff hence the same having not been denied, would be deemed to have been admitted. Once admitted, the Court could not have concluded that the tenancy was on per month basis. As the tenancy in the present matter was not per month, the notice issued under Section 106 of the Act of 1882 was ipso facto not valid in terms of law and the tenancy could not have been concluded to have terminated vide the said notice. 9. The next ground raised by learned counsel for the appellant is that no independent notice for determination of rent was served by the plaintiff – landlord and hence the Court could not have concluded the rent to be Rs.6,000/-per month. Further, the plaintiff did not lead any evidence regarding prevailing market price, rent of the shops in adjoining areas etc., meaning thereby there was no evidence available on record to determine the mense profits. However, learned trial Court ordered the same to be paid @ Rs.7,500/-per month without any evidence or basis which also deserves to be set aside. 10. Responding to the first ground as raised by learned counsel for the appellant, learned counsel for the respondent submitted that so far as the factum of rent note having not been pleaded in the plaint is concerned, the reason for the same was very well acknowledged by the Court below. 10. Responding to the first ground as raised by learned counsel for the appellant, learned counsel for the respondent submitted that so far as the factum of rent note having not been pleaded in the plaint is concerned, the reason for the same was very well acknowledged by the Court below. It was clear on record that the rent note was submitted by the plaintiff – landlord before the office of the Registrar (Stamps) to get it officially stamped in terms of law and when the same was obtained after being sufficiently stamped, permission to place the same on record was sought by the Court. Vide order/order-sheet dated 12.08.2016, the permission was granted by the Court and rent note was permitted to be taken on record. Because of the rent note being permitted to be taken on record, the defendant was granted liberty to file an amended written statement which was even filed by him without raising any objection at that point of time. The defendant cannot now therefore raise the said ground. 11. In reply to the ground raised by learned counsel for the appellant that the tenancy was annual, learned counsel for the respondent submitted that not a single document to prove the said fact was placed on record by the defendant. So far as deposit of an amount of Rs.28,000/-on 03.05.2014 is concerned, the same was clearly after service of notice/summons of the present suit. Hence, the same could be of no consequence and was rightly not relied upon by the Court below. 12. So far as the determination of rent is concerned, no independent notice for the same was required in terms of law and once the notice in terms of Section 106 of the Act of 1882 was proved to be served, the tenancy terminated w.e.f. 31.10.2013 and subsequent to that, the defendant was nothing more than a trespasser. Being a trespasser, he was liable to pay mense profits qua the use and occupation of the shop in question and the Court below rightly fixed the same @ Rs.7,500/-per month which cannot be termed to be exorbitant by any stretch of imagination. 13. Heard learned counsel for the parties and perused the material available on record. 14. Admittedly, the factum of rent note dated 01.04.2010 was not pleaded in the plaint. 13. Heard learned counsel for the parties and perused the material available on record. 14. Admittedly, the factum of rent note dated 01.04.2010 was not pleaded in the plaint. The said document was prayed to be taken on record vide an application under Order VII Rule 14(3), CPC by the plaintiff. The said application was allowed vide order dated 12.08.2016 with a condition that to rebut the same, the defendant would be entitled to file amended written statement and documents in support thereof, if any. In pursuance to the said order, the amended written statement was even filed by the defendant on 09.09.2016. As a consequence of the amended written statement been filed, even an additional issue, being Issue No.4A, was framed and added by the Court vide order dated 15.10.2016. Meaning thereby, firstly, the document, that is, the rent note was taken on record with the permission of the Court. Secondly, the defendant was given complete opportunity to rebut the same which he even availed. Thirdly, an issue qua the same was also framed. Issue No.4A as framed by the Court reads as under: 4,- vk;k okn i= esa fdjk;k fpB~Bh dk mYys[k ugha gksus dk D;k izHkko gksxk\ 15. The evidence was led by both the parties on all the issues and on basis of the same, the Court below decided issue No.4A against the defendant as the burden to prove the same was on him. The Court below, while deciding issue No.4A, held the reason for non-filing of the rent note (Exh.5) at the time of filing of the suit to be plausible as the same was filed before the concerned officer to be officially stamped. The Court below considered the document placed on record by the plaintiff to prove the factum of the document having been filed before the concerned officer and concluded that once an opportunity to rebut the said document vide an amended written statement and a permission to file any document to rebut the same was granted, non-filing of the rent note earlier would not be fatal to the present suit. In the opinion of this Court, the finding as reached by the Court below on issue No.4A does not deserve any interference for the reasons mentioned in the following paras. 16. Admittedly, in the present matter, the factum of tenancy has not been denied by the defendant. In the opinion of this Court, the finding as reached by the Court below on issue No.4A does not deserve any interference for the reasons mentioned in the following paras. 16. Admittedly, in the present matter, the factum of tenancy has not been denied by the defendant. The Court below reached to a specific finding that the signatures on document Ex.5 were of the defendant. It is nowhere the case of the defendant that the rent note did not bear his signatures. Further, the finding of the Court below regarding signatures on the rent note to be of the defendant has not even been challenged in the present appeal. Therefore, once execution of the rent note itself has been proved and has not been denied by the defendant, the ground that no pleading qua the same was made in the plaint would be of not much consequence and cannot be held to be tenable moreso, when complete opportunity to rebut the said fact/document was given to the defendant. 17. The judgments as relied upon by learned counsel for the appellant definitely do not apply to the present matter as in the opinion of this Court, the present is not a case of variance of pleading and proof. The factum of tenancy was very well pleaded in the plaint and the same has not been denied rather been admitted by the defendant. The rent note (Ex.5), to the best, can be said to be a document to substantiate the said pleading. The said document cannot be termed to have made out a complete new case so as to hold that there was no pleading whatsoever, qua the same in the plaint. As is the settled position of law, a fact is to be pleaded and the evidence in support of the said fact is not to be pleaded. The factum of tenancy has very well been pleaded in the plaint which is an admitted fact and the rent note substantiating the said fact can, to the best, be treated to be a document to prove the said pleading. Further, the order dated 12.08.2016 was never assailed by the defendant and even the cost as imposed on the plaintiff for allowing the application under Order VII Rule 14(3), CPC was received by the defendant. Further, the order dated 12.08.2016 was never assailed by the defendant and even the cost as imposed on the plaintiff for allowing the application under Order VII Rule 14(3), CPC was received by the defendant. Meaning thereby, the order dated 12.08.2016 was accepted by the defendant and no grievance qua the same remained once the cost had been accepted by him. 18. In view of the above observations, this Court is of the clear opinion that the finding of the Court below on issue No.4A does not deserve any interference and the same is hereby affirmed. 19. So far as notice dated 17.05.2014 served by the defendant on the plaintiff with an information of deposit of the annual rent @Rs.28,000/-is concerned, admittedly, the same was served after service of notice/summons of the present suit on the defendant. As evident from the record, the date of filing of the suit in question was 20.03.2014 and the notice Ex.D1 was dated 17.05.2014. Undisputedly, no reply to the said notice denying the facts stated therein could have been given by the plaintiff prior to filing of the suit. Any notice served after institution of the suit and not replied to, cannot be considered to be an admission of the plaintiff. Moreover, it has nowhere been pleaded by the defendant that the tenancy was annual and not on monthly basis. The only fact pleaded is that at present, the rent was agreed to be paid @Rs.28,000/-per annum. Further, not a single document, except notice dated 17.05.2014, has been placed on record by the defendant to prove that the rent was ever paid on annual basis as averred by him. As observed above, notice dated 17.05.2014 was of no consequence and hence, the finding on issue No.1 that the tenancy was per month basis @ Rs.6,000/-per month, as reached by the Court below also does not deserve any interference. 20. The present is a matter governed by Section 106 of the Act of 1882. No objection regarding validity of the notice under Section 106 of the Act of 1882 has been raised by the appellant. It is the settled position of law that if a notice in terms of Section 106 of the Act of 1882 is validly served on the tenant, the tenancy terminates w.e.f the date mentioned in the said notice. No objection regarding validity of the notice under Section 106 of the Act of 1882 has been raised by the appellant. It is the settled position of law that if a notice in terms of Section 106 of the Act of 1882 is validly served on the tenant, the tenancy terminates w.e.f the date mentioned in the said notice. The requirement under Section 106 having been fulfilled and the notice being valid in terms of law, the tenancy in the present matter did terminate and hence, the plaintiff was entitled to a decree for eviction in his favour. In the opinion of this Court, the said decree having rightly been granted in favour of the plaintiff, the impugned judgment and decree does not deserve any interference by this Court. The findings on issue Nos.2 and 4 also are therefore, affirmed. 21. So far as grant of mesne profits @ Rs.7,500/-per month is concerned, no challenge to the same has been laid in the present appeal and therefore, this Court does not require to go into the said issue. Even otherwise, the last paid rent in the month of March, 2014 was @Rs.6,000/-per month and the Court below has directed the defendant to pay mesne profit @Rs.7,500/-per month in the year 2020 which, in the opinion of this Court, cannot be said to be exorbitant by any means. The finding on issue No.3 also therefore, does not deserve any interference and is hereby affirmed. 22. The findings on all the issues having been affirmed by this Court, no interference in the impugned judgment and decree is called for and the present appeal is therefore, dismissed. 23. Stay petition and all pending applications, if any, stand disposed of.