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2024 DIGILAW 378 (GUJ)

Chaturbhai Motiram Patel v. Sahil Shatishbhai Roy

2024-02-23

GITA GOPI

body2024
JUDGMENT : 1. The appellant is the original plaintiff in Regular Civil Suit no. 176 of 2012, who had filed the suit for eviction, which came to be allowed on 11.1.2018 by the learned Additional Civil Judge, Patan. Aggrieved by the judgment and decree, the defendant of the suit had preferred Regular Civil Appeal no. 8 of 2018, since the appeal was allowed on 29.11.2019, aggrieved and dissatisfied by the judgment of the First Appellate Court, the original plaintiff is before this Court in the Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short ‘CPC’) as an appellant. 2. The present appellant – plaintiff had urged before the learned Trial Court that he has purchased a shop no. 4/G in City Point Commercial Complex, Patan vide registered Sale Deed dated 7.1.2010. Thereafter on 14.6.2011, he entered into a rent agreement and let the premises on monthly rent of Rs.5,500/- for a period of 11 months and 29 days. After the determination of the said period, the plaintiff as owner of the property did not opt to renew the lease agreement and sought vacant, peaceful possession of the shop, contending that he was in genuine need. The plaintiff had further before the learned Trial Court pleaded about breach of condition mentioned in the agreement, alleging that the defendant had been using the subject premises for illegal purpose, and an FIR being II-CR no.143/12 dated 12.5.2012 was registered with “B” Division Police Station, Patan City for the offence punishable under the Copyright Act, 1957. The plaintiff pleaded that on failure of the defendant to vacate the suit premises, the plaintiff had sent a notice for eviction dated 20.7.2012. The defendant did not chose to vacate the shop and gave a vague reply to the notice. 3. The plaintiff on 12.10.2012 filed a suit for eviction being Regular Civil Suit no.176 of 2012. The suit was partly allowed and the defendant was ordered to hand over the possession of the subject suit premises. 4. The present appellant, being the owner of the suit premises, has raised the ground inter alia, stating that the First Appellate Court has erred in mis-reading the rent agreement Exh.40 and that the Court has come to a wrong conclusion that the agreement cannot be said to be concluded, since it does not bear the date of execution. 4. The present appellant, being the owner of the suit premises, has raised the ground inter alia, stating that the First Appellate Court has erred in mis-reading the rent agreement Exh.40 and that the Court has come to a wrong conclusion that the agreement cannot be said to be concluded, since it does not bear the date of execution. It has been contended that during the original suit proceedings, no such dispute was raised, regarding the date of agreement as 14.6.2011, which was for duration of 11 months and 29 days as specifically mentioned therein. 5. Further raised the ground that the First Appellate Court has erred in holding that the landlord is not entitled to have possession over the suit property since the rent agreement is silent on the aspect of handing over the possession after determination of the agreement. It has been urged that the Court failed to observe that the premises was let on rent for a specific period of 11 months and 29 days and there has been no renewal. 6. Further a ground has been raised that the learned First Appellate Court has erred in applying the provisions of Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (for short ‘Gujarat Rent Act’) and has failed to notice that the premises was let after the commencement of the Amending Act, 2001, and that the learned Appellate Court has mechanically applied the provisions of the Gujarat Rent Act inspite there being a specific bar under the said Act, and that no protection could be granted to the respondent. 7. The First Appellate Court had formulated nine points for determination:- (A) Whether the respondent - original plaintiff has proved before the Trial Court that he is the owner of the subject premises and the same was let on rent for Rs.5,500/- p.m. to the appellant-original defendant for 11 months and 29 days by executing a rent agreement on 14.6.2011? (B) Whether the respondent - original plaintiff has proved before the Trial Court that on expiry of the period of the rent agreement, the appellant-original defendant has not handed over the peaceful possession to the original plaintiff? (B) Whether the respondent - original plaintiff has proved before the Trial Court that on expiry of the period of the rent agreement, the appellant-original defendant has not handed over the peaceful possession to the original plaintiff? (C) Whether the respondent-original plaintiff has proved before the Trial Court that having indulged into illegal activities on the premises in question, the appellant-original defendant has breached the conditions of the rent agreement and the respondent - original plaintiff is entitled to peaceful possession of the subject premises? (D) Whether the appellant-original defendant has proved before the Trial Court that he was occupying and doing business in the subject premises as a tenant prior to obtaining the premises on rent from the respondent - original plaintiff? (E) Whether the appellant - original defendant has proved before the learned Trial Court that he will be subjected to irreparable loss if the possession of the subject premises is handed over to the respondent - original plaintiff? (F) Whether the appellant - original defendant has proved before the learned Trial Court that the respondent - original plaintiff has intentionally accepted the rent from the appellant - original defendant after expiry of the term of the rent agreement? (G) Whether the judgment and order at Exh.111 and the decree at Exh.112 dated 11.1.2018 passed by the learned Trial Court in Regular Civil Suit no.176 of 2012 is erroneous, contrary to the legal principles and whether the same is required to be interfered with? (H) Whether the respondent - original plaintiff is entitled to the relief as claimed in the cross objections filed at Exh.13? (I) What order and decree? 8. Learned advocate Mr. Pinank J. Raiyani for the appellant, contended that the Appellate Court has failed to appreciate that the subject shop premises is a commercial property which was purchased by the original plaintiff vide registered Sale Deed dated 7.1.2010 – Exh.39 and was let on the rent of Rs.5,500/- per month for 11 months 29 days with the rent terms executed on 14.6.2011 – Exh.40. Advocate Mr. Advocate Mr. Raiyani submitted that after the conclusion of 11 months 29 days, the defendant was required to vacate the premises, but since he failed to do so, the eviction notice dated 20.7.2012 at Exh.43 was issued and on receipt of the notice, the defendant without there being any demand, sent Rs.16,500/- in lieu of excess use of additional three months by way of money orders. Advocate Mr. Raiyani submitted that few of the money orders were accepted while few were refused. The defendant gave an evasive reply dated 20.8.2012 – Exh.44 and the suit for eviction was instituted on 12.10.2012 at Civil Court, Patan. 8.1 It was submitted by Advocate Mr. Raiyani that the rent agreement has come to an end by efflux of time and thereafter, the defendant has failed to hand over the possession which has been very appropriately observed by the learned Trial Court. Advocate Mr. Raiyani further submitted that on the conclusion of the period of rent agreement, the defendant cannot be held to be a statutory tenant, merely on the fact that on conclusion of the lease period, the rent for additional three months was sent by the defendant through money order despite there being no demand from the plaintiff. Advocate Mr. Raiyani submitted that such conclusion of the learned Court is not in accordance with law since Section 4 of the Gujarat Rent Act vide Amendment Act 2001 exempts the application of the Gujarat Rent Act to the property which has been let after the commencement of 2001 Amendment Act, wide effect from 5.9.2001. In the present matter, Advocate Mr. Raiyani submitted that the rent agreement was executed on 14.6.2011 for 11 months and 29 days. Thus, the suit premises would get exempted from the application of the Gujarat Rent Act. Advocate Mr. Raiyani even contended that there was no dispute regarding the date of execution of the agreement. 8.2 Advocate Mr. Raiyani referring to points no.1 and 2 submitted that both are interconnected and has stated that the learned First Appellate Court has traveled beyond the record and has given contrary finding while answering the issue in negative. Advocate Mr. Raiyani submitted that the defendant of the suit had never denied the fact of plaintiff, being the lawful owner of the subject premises, nor has denied execution of the rent agreement. Advocate Mr. Raiyani submitted that the defendant of the suit had never denied the fact of plaintiff, being the lawful owner of the subject premises, nor has denied execution of the rent agreement. The defendant had admitted the date of execution to rent agreement as of 14.6.2011 in his written statement Exh.10 as well as in his testimony before the learned Trial Court at Exh.15. Thus, being an admitted position, Advocate Mr. Raiyani submitted that the learned Appellate Court had erred in concluding that the rent agreement cannot be said to have been executed on 14.6.2011. 8.3 Advocate Mr. Raiyani for the appellant also contended that the learned Appellate Court has erred in formulating the point of determination no.2 where the learned Appellate Judge preferred to lay the burden on the plaintiff to prove that even after the termination of the agreement, the defendant was in peaceful and actual possession of the shop premises and had failed to hand over the same to the owner. Advocate Mr. Raiyani submitted that the said issue would be of no consequence since it was only because on failure of the defendant to hand over the possession, the suit was filed. Mr. Raiyani argued that after the Sale Deed dated 7.1.2010, a rent agreement came to be executed on 14.6.2011, by the defendant and thereby, entering into an agreement with the new owner, a distinct contractual tenancy came into existence. Advocate Mr. Raiyani even contended that the learned Appellate Court has erred in holding that after the determination of the period of the rent agreement, the appellant herein has accepted the rent for three additional months and therefore, rent agreement cannot be said to have been concluded. Advocate Mr. Raiyani submitted that such observation of the learned Appellate Court is against the settled legal position, under Sections 106, 113 and 116 of the Transfer of Property Act, 1882 (for short ‘T.P. Act’). Advocate Mr. Raiyani has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sarup Singh Gupta v. S. Jagdish Singh & Ors. Advocate Mr. Raiyani has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sarup Singh Gupta v. S. Jagdish Singh & Ors. reported in (2006) 4 SCC 205 , to submit about the decision of the Hon’ble Apex Court, as was held that the mere fact of rent being tendered and accepted, after the service of notice, would not be a determinative factor, to infer waiver of notice or an intention to treat the lease as subsisting. Advocate Mr. Raiyani submitted that acceptance of the amount would not constitute a fresh tenancy. 8.4 Referring to the facts, Advocate Mr. Raiyani submitted that there was no demand of any rent amount by way of eviction notice, but the defendant on his own has sent an amount of Rs.16,500/- by way of money order for an excess occupation of additional three months. All the money orders were not accepted. He submitted that few money orders came to be accepted while few were returned and thus, stated that the learned Appellate Court was required to appreciate the malevolent act of the defendant to sit over the subject premises even after conclusion of lease period, by attempting to take an advantage of the provision of Section 116 of the T.P. Act. Advocate Mr. Raiyani has stressed upon the fact that the respondent no.1.1 is a practicing advocate and by an amendment in the cause title by order dated 24.8.2021, the respondents no.1.1 and 1.2 were added after the death of the original defendant. 8.5 Advocate Mr. Raiyani further submitted that the learned Appellate Court had failed to consider the aspect that the registration of FIR prima facie proves the illegal activities of the original defendant in the premises, and mere acquittal from the charges, would not have any influence on the appreciation of the evidence, where the plaintiff is not required to prove the fact beyond reasonable doubt when the registration of the FIR itself shows the breach of condition. 8.6 It was also argued by Advocate Mr. Raiyani that the learned Appellate Court had erred in considering the rent agreement as letter of attornment, when had failed to consider the length of time between the Sale Deed of plaintiff and rent agreement. Advocate Mr. 8.6 It was also argued by Advocate Mr. Raiyani that the learned Appellate Court had erred in considering the rent agreement as letter of attornment, when had failed to consider the length of time between the Sale Deed of plaintiff and rent agreement. Advocate Mr. Raiyani further submitted that the learned Appellate Court appears to have framed the point of determination no.4 only on the submission of the defendant who contended the rent agreement as letter of attornment, stating that he was in occupation of the suit premises prior to execution of the rent agreement. Advocate Mr. Raiyani thus stated that Exh.40 the agreement would reveal from the nature of its content, that it was purely rent agreement and further stated that even if it is assumed that the defendant was in possession of the premises prior to the rent agreement, such antecedent possession would have no legal import since the rent agreement dated 14.6.2011 was formalized between the parties and the altered ownership status was acknowledged and distinct contractual tenancy was also recognized and executed by the defendant and on expiry of the term of agreement, the defendant was required to evict the premises and hand over the peaceful possession to the plaintiff. 8.7 In connection to the point of determination no.5, Advocate Mr. Raiyani submitted that the Gujarat Rent Act would not be applicable to the present matter and that the learned Appellate Court has erred in considering the case as of under Section 13(2) of the Gujarat Rent Act assuming the respondent would be subjected to irreparable loss if he is dispossessed of the subject premises. Advocate Mr. Raiyani submitted that the Gujarat Rent Act would not be applicable to the present subject premises since the agreement is of the year 2011, while the amended Rent Act under Section 4(1-A) of the Gujarat Rent Act suspended its applicability on such suit premises which was let after the commencement of the Amended Act. 8.8 Advocate Mr. Raiyani further submitted that the both the courts have erred in framing the issues pertaining to the Gujarat Rent Act which would not be applicable on the facts of the case on hand. Advocate Mr. 8.8 Advocate Mr. Raiyani further submitted that the both the courts have erred in framing the issues pertaining to the Gujarat Rent Act which would not be applicable on the facts of the case on hand. Advocate Mr. Raiyani submitted that the entire reading of the decree of the learned Trial Court would demonstrate that the eviction is granted in accordance with the provision of the T.P. Act and the learned Trial Court has concluded the aspect, that mere acceptance of few money orders on the part of the landlord, after issuance of the notice to quit, would not ipso facto hold the defendant as a statutory tenant after expiry of the lease period. Thus, Advocate Mr. Raiyani contended that the provision of Sections 111 and 116 of the T.P. Act would govern the transaction and would determine the lease. Advocate Mr. Raiyani further submitted that the First Appellate Court has erred in observing that the learned Trial Court was required to consider the principles of the Gujarat Rent Act, oblivious of the fact that there was no demand of the rent amount while issuing the notice and without explicit demand, the respondent on his own had sent the sum of Rs.16,500/- through money order, with an ill intention, that acceptance of rent would give him the benefit to urge fresh contractual tenancy, to construe that there was satisfying assent on the part of the landlord to treat the lease as subsisting. 8.9 Advocate Mr. Raiyani further took objection to the observation of the Appellate Court, holding respondent as statutory tenant even after expiry of the lease period. 8.10 Referring to the provisions of law, Advocate Mr. Raiyani submitted that after the determination of the lease, the tenant in occupation of the property can be categorized as tenant at will or tenant at sufferance. The acceptance of continuation of the occupation of the property is only because the landlord cannot forcibly take the possession and has to follow due process of law by issuing notice in filing the suit. Advocate Mr. Raiyani contended that any possession after the determination of the lease of the defendant, is in the status of a trespasser. 8.11 Advocate Mr. Raiyani has also submitted that cross objection was filed by the present appellant before the First Appellate Court against the observation of the learned Trial Court. Advocate Mr. Raiyani contended that any possession after the determination of the lease of the defendant, is in the status of a trespasser. 8.11 Advocate Mr. Raiyani has also submitted that cross objection was filed by the present appellant before the First Appellate Court against the observation of the learned Trial Court. However, the same came to be rejected, as was found to be not in proper format. Advocate Mr. Raiyani submitted that no opportunity was granted to the appellant to pay the requisite court fees. 8.12 Advocate Mr. Raiyani contends that the learned Appellate Court has set aside the decree of eviction on an erroneous observation that the learned Civil Court was required to consider the provisions of the Gujarat Rent Act, and further with unwarranted finding that in absence of specific date of execution, lease period cannot be said to have been concluded and that erroneously observed by the learned Appellate Court that the rent agreement lacks clarity requiring the date of surrendering the possession to the plaintiff, post the conclusion of the agreement, and that the plaintiff has accepted the rent for few months after determination of the rent period and therefore, the defendant was a statutory tenant. Advocate Mr. Raiyani referring to the earlier arguments submitted that such observations of the learned Appellate Court are not justified and the First Appellate Court has erred in interfering with the decree of eviction on erroneous and misconceived grounds. 8.13 Advocate Mr. Raiyani even submitted that the point of determination no.8 was raised since the present appellant had filed cross objection at Exh.13 on receipt of notice of the appeal filed by defendant of the suit. The appellant had challenged the findings arrived at by the learned Trial Court in answering issues no.3, 4 and 6. Advocate Mr. Raiyani submitted that the First Appellate Court has also erred in outrightly rejecting the cross objection qua issues no.3, 4 and 6. Advocate Mr. Raiyani thus stated that the appellant is not seeking any indulgence of this Court for determination of issues no.3 and 4 of the learned Trial Court and makes a prayer for consideration towards issue no.6 of the learned Trial Court. Mr. Advocate Mr. Raiyani thus stated that the appellant is not seeking any indulgence of this Court for determination of issues no.3 and 4 of the learned Trial Court and makes a prayer for consideration towards issue no.6 of the learned Trial Court. Mr. Raiyani further submitted that remanding back the matter for fresh decision would result in miscarriage of justice since the matter had been prolonged for a long period and the question of applicability or non-applicability of the Gujarat Rent Act is required to be determined before this Court where both the Courts were aware of the facts of the case and had gone through the provisions of both the Gujarat Rent Act as well as T.P. Act and thus, submitted that in view of the settled legal position, lease is determined and since the landlord is not willing to renew the lease and seeks possession, the eviction must follow, and, the tenant in possession after determination of the lease is not a statutory tenant but his status would be as of trespasser. 9. Per contra, Advocate Mr. Bharat Jani for the respondent supporting the judgment of the Appellate Court stated that the First Appellate Court has not committed any error of law or facts by framing the point of determination, and have answered them by detailed reasons. Advocate Mr. Jani specified to pertinently note that the appellant – landlord was receiving rent every month which was deposited by the respondent – tenant in the Court and that, there was no arrears of rent. 9.1 Relying on the judgments of (1) Harvinder Singh & Ors. v. Pritam Kaur & Ors., (2005) 11 SCC 428 , (2) Alizan Mian v. Naro Dusadh & Ors, (2005) 12 SCC 214 , (3) Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., (1999) 3 SCC 722 , Advocate Mr. Jani submitted about the scope under Section 100 of the CPC. 9.2 Further line of argument raised by Advocate Mr. Jani was that the tenant was in the possession of the tenanted premises since the year 2009, and the rent agreement was executed on 14.6.2011. It is the case of the tenant that he was already in possession and therefore, decree of eviction cannot be passed on the ground of bonafide requirement. Jani was that the tenant was in the possession of the tenanted premises since the year 2009, and the rent agreement was executed on 14.6.2011. It is the case of the tenant that he was already in possession and therefore, decree of eviction cannot be passed on the ground of bonafide requirement. The notice issued by the landlord was under Section 12(b) of the Gujarat Rent Act, and the learned Trial Court has directed the tenant to evict the rented premises under Section 13(1)(g) of the Gujarat Rent Act, though no issue was framed by the learned Trial Court, therefore too, the Appellate Court was right in reversing the decree passed by the learned Trial Court. Advocate Mr. Jani submitted that the landlord filed the suit under the Gujarat Rent Act, though on the date of filing of the suit, the applicability of the Gujarat Rent Act was suspended. The suit was filed making prayer of eviction and recovery of arrears of rent, while no prayer was made regarding bonafide requirement of the rented premises and without the issues being framed, the decree was passed under Section 13(1)(g) of the Gujarat Rent Act, which Mr. Jani contended is erroneous and bad in law. Advocate Mr. Jani further submitted that the learned Trial Court has not considered the oral and documentary evidence placed on record by the tenant at Exhs.62 to 64, and the evidence of Bhavesh Kailashbhai at Exh.87, while First Appellate Court has rightly considered the same and allowed the appeal filed by the tenant. Advocate Mr. Jani further contended that once the tenant has regularly paid the rent, then landlord cannot seek decree of eviction on the ground of bonafide requirement. It is also the contention that the landlord has not issued any notice under Section 106 of the T.P. Act, there too, decree in favour of landlord cannot be passed under Section 13(1)(g) of the Gujarat Rent Act. 9.3 Relying on the decision in Second Appeal no.182 of 2018 by a Coordinate Bench of this Court on 19.12.2018, it is submitted that in identical facts and circumstances of the case, the matter was remanded back. 9.4 Advocate Mr. Jani, under the facts and circumstances, submitted to dismiss the Second Appeal. 10. 9.3 Relying on the decision in Second Appeal no.182 of 2018 by a Coordinate Bench of this Court on 19.12.2018, it is submitted that in identical facts and circumstances of the case, the matter was remanded back. 9.4 Advocate Mr. Jani, under the facts and circumstances, submitted to dismiss the Second Appeal. 10. On hearing both the advocates, perusal of record, makes it noticeable that the appeal filed by the respondent before the First Appellate Court was under Section 96 of the CPC. The appeal was not under Section 29 of the Gujarat Rent Act. The First Appeal was therefore not decided under the Rent Act. 10.1 This Second Appeal is filed under Section 100 of the CPC; for this Court, under the facts and circumstances, would become necessary to examine the appeal, on the substantial question of law raised in light of the principle governing the provision of Section 100 of CPC. 11. In Alizan Mian (supra), the Apex Court has held that if the findings are perverse, based on failure to take into consideration relevant evidence on record or a misreading thereof, the interference with the finding of facts would be warranted. It has been further clarified that the questions whether failure to frame an issue had resulted in miscarriage of justice and whether the learned Trial Court was justified in believing the case of parties on a point, in absence of reliable evidence are not substantial questions of law. 12. In Kondiba Dagadu Kadam (supra), the scope of Section 100 of the CPC, as amended in 1976 was examined. It was held as under:- A. It was held that the High Court must adhere to the procedure and conditions prescribed in the section and no Court has the power to add to or enlarge the conditions of appeal. It was further held that the High Court must satisfy itself that a substantial question of law is involved and must then formulate the question on which the appeal would then be heard and that the respondent has the right to argue that no substantial question of law is involved and the Second Appeal cannot be decided on merely equitable grounds. The Court must distinguish between a question of law and a substantial question of law and a substantial question of law must be distinguished from a substantial question of fact, and concurrent findings of fact however erroneous, cannot be disturbed under Section 100, however, in the interest of justice, permits the High Court to hear an appeal on a substantial point of law even though not formulated by it. It was further held on facts that no question of law was involved and High Court wrongly disturbed the findings of facts of the First Appellate Court without adhering to the principles of and limitations imposed under Section 100 of CPC. B. It was further held that High Court cannot substitute its own opinion for that of the First Appellate Court unless it finds that the conclusions drawn by the lower court were erroneous being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence. C. In regard to precedents, it was observed that where the substantial question of law has already been decided by a Larger Bench of the High Court concerned, or by the Privy Council, or by the Federal Court or by the Supreme Court, mere wrong application on facts of a particular case does not create another substantial question of law. D. It was also noted that a question arising between the parties in absence of factual format should not be allowed to be raised as a substantial question of law. E. And as was also held that mere appreciation of evidence of the meaning of entries in and contents of documents cannot be held to raise a substantial question of law, further held that where the First Appellate Court can be shown to have assumed jurisdiction which did not vest in it, it would give rise of substantial question of law. F. If the Appellate Court has exercised its discretion in a judicial manner, its decision cannot be regarded as suffering from an error either of law or procedure requiring interference in Second Appeal. That, the learned Trial Court could have decided differently is not a question of law, justifying interference in Second Appeal. G. Right to appeal is a substantive statutory right, regulated in accordance with the law in force at the relevant time. That, the learned Trial Court could have decided differently is not a question of law, justifying interference in Second Appeal. G. Right to appeal is a substantive statutory right, regulated in accordance with the law in force at the relevant time. Right to appeal is neither a natural nor inherent right attached to the litigation. 13. In connection to the proviso, as stated, after 1976 amendment of Section 100 of CPC, it was observed by the Hon'ble Apex Court that the object is to ensure that no injustice is done to the litigants on whose behalf a substantial question of law was not formulated at the time of admission or either due to mistake or inadvertence. The purpose of the Amending Act was to minimize litigation, ensure fair trial in accordance with accepted principles of natural justice, to expedite disposal of Civil Suits and proceedings, so that justice is not delayed, to avoid complicated procedure, to ensure a fair deal to the poor and restrict Second Appeals, to such questions as are certified by the Courts to be substantial questions of law. 13.1 Here in this matter, on raising the Second Appeal, substantial questions of law framed by the Coordinate Bench are as under:- 1) Whether the Court has erred in applying principle of Rent Act which was not in existence in the year 2011? 2) Whether the appellate Court has erred in holding and declaring the respondent as statutory tenant after determination of the agreement between the parties dated 14.06.2011? 14. The issues tried by the learned Trial Court placed burden on the plaintiff – landlord to prove under issue no.1, whether the suit property was given on rent of Rs.5,500/- for 11 months 29 days for the purpose of running shop by executing agreement on 14.6.2011 with the defendant. While deciding the issue in affirmative, the learned Trial Court had considered the fact of suit property purchased by the plaintiff by way of registered sale deed. The sale deed was produced at Exh.39 and the copy of property card at Exh.65, Exh.40 agreement of rent between the plaintiff and the defendant. The evidence of the plaintiff at Exh.37 was appreciated with the relevant documents. The learned Trial Court observed that the agreement of rent at Exh.40 was executed on the stamp paper of 14.6.2011. The sale deed was produced at Exh.39 and the copy of property card at Exh.65, Exh.40 agreement of rent between the plaintiff and the defendant. The evidence of the plaintiff at Exh.37 was appreciated with the relevant documents. The learned Trial Court observed that the agreement of rent at Exh.40 was executed on the stamp paper of 14.6.2011. The defendant’s defence was that Exh.40, is a formal agreement of rent, it is merely notice of attornment. The learned Trial Court concluded that the defendant has agreed for execution of rent agreement. 15. The suit property was purchased by the landlord on 7.1.2010 and the stamp paper on which the agreement of rent was drawn is of 14.6.2011. The defendant as tenant proposes to consider the same as notice of attornment, the time period between registered sale deed and agreement of rent is almost of five months. The learned Trial Court Judge has not believed the document at Exh.40 as notice of attornment, while the learned Appellate Court, not believing Exh.40 executed on 14.6.2011, has found to reach a conclusion below issue no.1 by the learned Trial Court as erroneous, for the point of determination formulated, to prove the agreement as of for 11 months 29 days. The learned Appellate Court considers the date of execution not known from the agreement. The Appellate Court thus inferred that no date of execution is mentioned in Exh.40. 16. The learned Appellate Court while setting aside the affirmative conclusion of the learned Trial Court, that the lease ended after 11 months 29 days, concluded that since the initiation of rent agreement could not be proved, the date of its determination, could not be found. This observation of the First Appellate Court would be perverse, since the defendant has not denied the execution of Exh.40 on 14.6.2011. In view of admitted position of Exh.40 executed on 14.6.2011, there was no reason for the learned Appellate Court to give a contrary finding. 17. The Appellate Court has also erred in considering Exh.40 as attornment agreement. An attornment occurs when the title to an immovable property is transferred from the hands of one lessor to another. In such cases, the existing lessor will usually send a letter of attornment to the lessee notifying him of such sale and request him to make all further lease payments directly to the new lessor. An attornment occurs when the title to an immovable property is transferred from the hands of one lessor to another. In such cases, the existing lessor will usually send a letter of attornment to the lessee notifying him of such sale and request him to make all further lease payments directly to the new lessor. Here in the case, the earlier owner has not been examined. It was pleaded that his son was managing the property, he too was not examined during the trial. The defendant has further contended that even after the conclusion of the time period of 11 months and 29 days, the landlord continued to accept the rent. This pleading and evidence establishes the acceptance of 11 months and 29 days term of the rent agreement. 18. The execution of agreement of rent at Exh.40 on 14.6.2011 cannot be denied by either party. Hence, the observation of learned Appellate Court to that regard is faulty. 19. The defendant had also taken a plea that prior to the execution of Exh.40, they were in possession of property as tenant of Manilal Motiram Patel. The burden of examining Manilal Motiram Patel is laid down on the plaintiff – landlord by the learned Appellate Court. Manilal Motiram Patel is the brother of plaintiff, from whom, he had purchased the property by registered sale deed on 7.1.2010, Exh.39. The property card of the premises is at Exh.65. 20. The property card Exh.65 shows that shop no.4 was sold to Manilal Motiram Patel by Gordhandas Gopaldas Thakkar. From the sale deed Exh.39, it transpires that the shop no.4 was purchased by Manilal Motiram Patel from Gordhandas Thakkar by registered sale deed no.803 on 18.3.2004 who had given the vacant, peaceful and direct possession of the property to Manilal Motiram Patel. 21. The history of the property as noted in the sale deed at Exh.39 shows that Gordhandas Gopaldas Thakkar had purchased the property from Kishorilal alias Chandrakant Poonamchand Shah and Girishchandra Poonamchand Shah. The property whereupon was having bungalow on it, Gordhandas Thakkar demolished the bungalow property and got the purpose of land converted from residential to commercial. The bungalow property was sold to Gordhandas Thakkar by registered sale deed no.1357 on 10.5.2002. So accordingly, the purchase of property by Gordhandas Gopaldas Thakkar is after the year 2001. The property whereupon was having bungalow on it, Gordhandas Thakkar demolished the bungalow property and got the purpose of land converted from residential to commercial. The bungalow property was sold to Gordhandas Thakkar by registered sale deed no.1357 on 10.5.2002. So accordingly, the purchase of property by Gordhandas Gopaldas Thakkar is after the year 2001. After conversion of the purpose to commercial, the plan was revised on 27.8.2002, the construction permission was obtained vide permission letter no.362 dated 14.10.2002, thus, City Point property came to be developed with construction of basement for godowns, ground floor, first floor and second floor for shops and offices. The Building Use permission was given on 12.1.2004 and from the developed property, shop no.4 admeasuring 16.31.75 sq. mtrs. was purchased by Manilal Motiram Patel on 18.3.2004. 22. In view of the referred history of the building, the whole property developed by Gordhandas Thakkar gets exempted from the applicability of the Gujarat Rent Act. The Gujarat Rent Act shall not apply to any premises constructed on or after the commencement of the Gujarat Amendment Act, 2001 (hereinafter referred to as “the amending Act”), which has come in force from 5.9.2001 with amending Section (1-A) in Section 4 of exemption. Sub-section (1-A) to be read with the explanation to it, is as under:- “4(1-A) This Act shall not apply to.- (a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rents Control (Gujarat Second Amendment) Act, 2001 (Gujarat 27 of 2001) (Hereinafter referred to as “the amending Act”); (b) any existing premises which is self-occupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement; Explanation.- For the purpose of this section “existing premises” means any premises which exists on the date of commencement of the amending Act.” 23. The Gujarat Rent Act would not be applied to the property which was constructed on or after the date of Amending Act, 2001 as referred so in clause (a) of sub-section (1-A). The explanation to sub-section (1-A) read with clause (a)(b) clarifies the meaning of the expression “existing premises” which means, any premises which exists on the date of commencement of the amending Act, which is 5.9.2001. 24. The explanation to sub-section (1-A) read with clause (a)(b) clarifies the meaning of the expression “existing premises” which means, any premises which exists on the date of commencement of the amending Act, which is 5.9.2001. 24. The issue of immunity of Rent Act to the premises was considered by the Hon'ble Supreme Court in the case of Parwati Bai v. Radhika, reported in (2003) 12 SCC 551 , wherein it was held that the immunity from operation of the M.P. Rent Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempted under Section 3(1)(b) of the Act though the suit is not between the Municipality as landlord and against its tenant. The Court has recorded its observation in Paragraph 5 to give a clarity to understand the issue. “5. It is well settled by a decision of this Court in Bhatia Cooperative Housing Society Ltd. vs. D.C. Patel 1953 (4) SCR 185 wherein pari materia provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration of this Court. It was held that the exemption is not conferred on the relationship of landlord and tenant but on the premises itself making it immune from the operation of the Act. In identical facts, as the present case is, the decision of this Court was followed by the High Court of Madhya Pradesh in Radhevlal Somsingh vs. Ratansingh Kishansingh 1977 MPLJ 335 and it was held that the immunity from operation of the Madhya Pradesh Accommodation Control Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempt under Section 3 (1)(b) of Act though the suit is not between the municipality as landlord and against its tenant. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylal's case. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylal's case. It is unfortunate that this decision binding in the State of Madhya Pradesh was not taken note of by the courts below as also by the High Court.” 25. In the case on hand, on 5.9.2001, the date exempting the operation of the Gujarat Rent Act, the suit premises was not in existence since was constructed after the amending Act. Thus, the suit premises will not be governed by the Gujarat Rent Act. As has been made clear in Parwati Bai’s case (supra), the immunity is in respect of the premises and not with respect to the parties. 26. During the course of trial, the defendant produced Exhs.62, 63 and 64, registration certificate under the Bombay Shops and Establishment Act, 1948 under the name of ‘Talk Time Communication’ the owner being the defendant and the type of work was noted as electronic item mobile. The date of registration is 15.10.2006. For the years 2009 to 2011, the registration was renewed on 21.11.2011 and the years 2012 to 2014 saw renewal on 21.4.2012. Exh.63 is the receipt of the renewed fee for 2009 to 2011. The receipt was issued on 19.11.2011, while Exh.64 is the challan issued by Patan Nagarpalika for the payment of tax for the period between 1.4.2011 to 31.3.2012. 27. In light of the above documents, the Appellate Court came to the conclusion that the defendant was a tenant of the suit property even prior to year 2011. The fact which weigh with the Appellate Court was that the original owner Manilal Motiram was not examined by the plaintiff, while the defendant had examined Bhavesh Kailashbhai at Exh.87, who is having his printing business in shop no.50. According to the witness, City Point Shopping shops have their association and the members manage it, and, he is the treasurer of association. He has deposed of having received Rs.250/- as yearly membership fee on 20.7.2010 from defendant for shop no.G-4 City Point. 28. In the cross-examination, the witness has stated that there are 200-250 shops in the shopping centre. 29. The evidence of defendant came to be noted at Exh.55. As per his affidavit-in-chief, he has been in the suit premises as a tenant from the year 2009. 28. In the cross-examination, the witness has stated that there are 200-250 shops in the shopping centre. 29. The evidence of defendant came to be noted at Exh.55. As per his affidavit-in-chief, he has been in the suit premises as a tenant from the year 2009. He had rented the property on oral agreement from Manilal Motiram, and the management of the property was by his deceased son Piyush Motiram, and since they trusted each other, had never asked for rent receipts, nor had they given the rent receipts. The defendant stated that the original owner had sold the property to his brother on 7.1.2010 who had purchased the property along with the tenant and thus, contended that since the time of Manilal Motiram, he is a tenant. He states that inspite of the sale, the plaintiff had neither orally nor in writing informed him of the sale deed dated 7.1.2010. 30. The defendant has further stated on oath, that after the sale deed, on Rs.100/- non-judicial stamp dated 14.6.2011 rent agreement was drawn on account of change of ownership. The defendant had further stated that the plaintiff had totally denied to issue rent receipt. 31. In the cross-examination, it has been elicited that the defendant had completed his education of M.A. M.Ph.D. in the year 2005 and is pursuing for Ph.D. and has also admitted that he has completed his Masters in Law. 32. Referring to criminal cases, he stated that against plaintiff’s son and four others under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 being Sessions Case no.28 of 2014, he had filed a case, and admitted that Exh.45 is about a case filed against him. 33. Defendant had admitted the factum of issuance of notice Exh.43, but had denied of being sent, on the determination of Exh.40, the rent agreement. In the cross-examination, the defendant was asked to produce the evidence of his being in the suit premises as tenant from the time of Manilal Motiram. 34. During the trial, Exh.14 was moved by the defendant for interim protection, which came to be granted on 30.12.2013, with a further order to the defendant to deposit Rs.5,500/- between 1st to 10th in the Court or to give the same to the plaintiff by receiving receipt. 35. 34. During the trial, Exh.14 was moved by the defendant for interim protection, which came to be granted on 30.12.2013, with a further order to the defendant to deposit Rs.5,500/- between 1st to 10th in the Court or to give the same to the plaintiff by receiving receipt. 35. In view of the above facts and circumstances, with the evidence of the defendant, it would be required to be examined, whether the defendant was tenant from the time of Manilal Motiram, and, whether exemption under the provision of Section 4 of the Gujarat Rent Act would be invoked. Learned advocate Mr. Jani would submit that exemption would not be applicable to the defendant, since he was tenant from the year 2009 of Manilal Motiram. In the written statement at Exh.14, the defendant pleaded that he was tenant of the shop from the year 2009 for the rent of Rs.5,500/-. The date of registration under the Shops and Establishment Act of Talk Time Communication is of 15.10.2006 which gets reflected by document at Exh.62. The defendant has failed to clarify this aspect as to how the certificate was issued on 15.10.2006 for the property which had been taken on rent on oral agreement in the year 2009. 36. The learned Trial Court in Regular Civil Suit no.176/2012 had framed the issues placing the burden on the defendant to prove that he was doing the business in the suit shop in the status of tenant prior to taking the shop on rent from the plaintiff. It was urged by the defendant that when the suit property was sold by the earlier owner, who is a brother of the present landlord by registered sale deed, intentionally the fact of suit property having the tenant was deliberately not noted. The burden to prove the said fact was on the defendant to show that he was in the suit property prior to rent agreement. The defendant before the learned Trial Court had relied upon the written statement Exh.10 and reply Exh.44 to the legal notice issued by the plaintiff Exh.43. The burden to prove the said fact was on the defendant to show that he was in the suit property prior to rent agreement. The defendant before the learned Trial Court had relied upon the written statement Exh.10 and reply Exh.44 to the legal notice issued by the plaintiff Exh.43. The defendant had given his deposition at Exh.55 and has also placed reliance on the evidence of witness Bhaveshbhai, and Gumastadhara license, the amount paid to Patan Nagarpalika and the membership fee and the payment of membership at Exh.90 to Patan City Point Association as well as the registration certificate of the shop establishment with Patan Nagarpalika. The learned Trial Court Judge referred to the cross-examination of the defendant, where Paragraph 14 of his written statement Exh.10 was referred, to state that from the time of Patel Manilal Motiram, he was the tenant of the property and was willing to produce the documents to that effect. The learned Trial Court Judge has observed that, in fact, inspite of assuring in the cross-examination of producing the documents, relevant to the plea of being a tenant in the suit property from the time of Patel Manilal Motiram, it was not produced, in the form of any agreement of rent or any other written document. Exh.90 which was produced by the witness Bhavesh Kaileshbhai Bhojak, office bearer of shop association does not reflect the shop number, as observed by the learned Trial Court Judge in the judgment, and the said witness had also admitted that fact. The learned Judge has also made observation that the sale deed Exh.39 in favour of the plaintiff, the property covered is only to the extent of carpet area with the recital that the possession handed over was direct, vacant and peaceful. The learned Trial Court Judge has observed that the renewal of the registration of the shop establishment is on 21.11.2011. The agreement of rent is dated 14.6.2011 and thus, it was observed by the learned Trial Court Judge that the registration was renewed after the agreement of rent. The renewal receipt for the payment of Rs.60/- is dated 19.11.2011 and the challan of the Patan Nagarpalika in form 10 is also dated 28.11.2011 which is regarding the tax paid by the defendant. All these documents are after the agreement of rent dated 14.6.2011. The renewal receipt for the payment of Rs.60/- is dated 19.11.2011 and the challan of the Patan Nagarpalika in form 10 is also dated 28.11.2011 which is regarding the tax paid by the defendant. All these documents are after the agreement of rent dated 14.6.2011. The learned Judge has observed that earlier owner Manilal Motiram and his son, who was stated to be administering the property, have not been examined. The learned Trial Court Judge thus, answering issue no.4 has concluded that the defendant has failed to prove of being a tenant in the suit property from the time of Patel Manilal Motiram. 37. The defendant could not prove his possession of the property prior to the agreement of rent Exh.40 dated 14.6.2011. All the documents relied upon are of subsequent payment, which has rightly, not been believed by the learned Trial Court Judge. The learned Appellate Court has failed to examine the evidence on record in right perspective. The learned Appellate Court had laid down the burden on the plaintiff giving weightage that he failed to examine Patel Manilal Motiram. The burden would be on the defendant to prove his status of a tenant in the suit property. 38. The learned Appellate Court has also failed to appreciate the aspect that the suit property was purchased by Manilal Motiram on 18.3.2004. Section 4 of the Gujarat Rent Act with the amending Act, 2001 exempts the application of the Gujarat Rent Act to any existing premises which is even self occupied by the owner or vacant on or after the commencement of the amending Act or is let after such commencement. Even if the plea of the defendant of being tenant of the suit property prior to the agreement of rent Exh.40 is to be believed, then too, the premises even if it is let after the commencement of the amending Act, would not invoke application of the Gujarat Rent Act. Exh.39 is a sale deed dated 7.1.2010 in favour of the plaintiff. The history of the property, construction and development as reflected in the sale deed has clarified that Manilal Motiram was the first owner of shop no.4, who had purchased it from Gordhandas Gopalbhai Thakkar, the developer of the property only after construction permission from the Patan Nagarpalika and the building use permission given on 12.1.2004. The history of the property, construction and development as reflected in the sale deed has clarified that Manilal Motiram was the first owner of shop no.4, who had purchased it from Gordhandas Gopalbhai Thakkar, the developer of the property only after construction permission from the Patan Nagarpalika and the building use permission given on 12.1.2004. This very fact itself makes it clear that the property was not in existence even on the date of commencement of the amending Act. 39. The explanation to sub-section (1-A)(b) of Section 4 of the Rent Act makes it aptly clear that the suit property would not fall under the definition of ‘existing premises’ on the date of commencement of amending Act. In view of the provision of the Rent Act, the possession in the suit property, would have been protected had the property been existing on the date of commencement of the amending Act. According to Section 4(1-A)(a), any premises constructed on or after commencement of the amending Act, 2001 gets the exemption from the Gujarat Rent Act. Hence, possession of the defendant even in the suit property prior to the present rent agreement in question would not get any protection under the Gujarat Rent Act as the suit property was not existing on the date of the commencement of the Gujarat Rent Amending Act. Hence, it cannot be believed that the defendant was in the suit property as a tenant of Manilal Motiram Patel. 40. On the same ground, Mr. Jani for the defendant had contended that the learned Appellate Court has considered the respondent as a tenant in possession of the tenanted premises since the year 2009 and the rent agreement was executed on 14.6.2011, thus according to Mr. Jani, the purchase of the property by the appellant – landlord would not alter the situation as the tenant was already in possession and therefore, the appellant – landlord cannot make a prayer for the decree of eviction on the ground of bonafide requirement. It is required to be specifically mentioned here, that the learned Trial Court had not framed any issue considering any plea made by the plaintiff on the basis of bonafide requirement of the suit property, to have considered the case under Section 13(1)(g) of the Gujarat Rent Act. It is required to be specifically mentioned here, that the learned Trial Court had not framed any issue considering any plea made by the plaintiff on the basis of bonafide requirement of the suit property, to have considered the case under Section 13(1)(g) of the Gujarat Rent Act. There is no such burden laid down on the plaintiff to prove the case under Section 13(1)(g) of the Gujarat Rent Act. The plaintiff had placed his case on the basis of the agreement of rent dated 14.6.2011 which he had pleaded to be of 11 months and 29 days and after the determination of the agreement, he has prayed for the vacant, peaceful and actual possession. 41. A burden was also laid on the plaintiff to prove whether on the basis of any illegal activity of the defendant, the plaintiff is entitled to receive possession of the property. That issue was answered in negative by the learned Trial Court Judge. The illegal act of the defendant as was pleaded by the plaintiff was on the basis of an FIR under the Copyright Act. The learned Trial Court was not satisfied, to believe the contention of the plaintiff, observing that the offence has not been proved and further that the defendant has not taken active part in the offence. The plaintiff may have averred of requirement of the suit property on the basis of his bonafide requirement. The plaintiff has stated that he wanted the property for the business of his children, such pleading would not call for framing of issue under Section 13(1)(g) of the Gujarat Rent Act, where the case could be proved before the Trial Court by pleading and proof that the Rent Act would not be applicable to the suit premises. 42. In Ram Swaroop v. Vishnu Narayan Inter College, AIR 1987 SC 1242 , it has been held as under:- "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. it is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. it is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings, however, should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. It is not desirable to place undue emphasis on form, instead the substance of the pleading should be considered." 43. As has been noted in the referred judgment of Ram Swaroop (supra), the object and purpose of pleading is to enable the adversary party to know the case it has to meet, the pleadings should receive a liberal construction and no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. It is not desirable to place undue emphasis on form, instead the substance of the pleading should be considered. The suit was filed for possession and declaration. The necessary issues were raised below Exh.33 by the learned Trial Court in Regular Civil Suit no.176/2012. The issues were settled for the parties to meet their case. Thus, the contention raised by learned advocate fails merits. 43.1 Further, the possession of the defendant in the suit premises in view of the rent agreement would not be as a tenant as the suit premises is exempted from the applicability of Gujarat Rent Act. Clause (b) of Section 4(1-A) further clarifies that any existing premises which is self-occupied by the owner or vacant on or after the commencement of the amending Act, or is let after the commencement of the amending Act, for such transaction of letting after the amending Act, the Gujarat Rent Act would not be applicable. 44. Another contention of learned advocate Mr. Jani was that the landlord had accepted the rent even after completion of the rent period, the defendant thus becomes statutory tenant and on that ground too, no eviction decree could be passed. 44. Another contention of learned advocate Mr. Jani was that the landlord had accepted the rent even after completion of the rent period, the defendant thus becomes statutory tenant and on that ground too, no eviction decree could be passed. Issue no.6 was raised by the learned Trial Court Judge for the defendant to prove whether after determination of the agreement of rent, the plaintiff had bonafidely received rent from the defendant and therefore, he is a statutory tenant of the plaintiff. The learned Trial Court Judge having referred to Exh.40 - agreement of rent has noted that the rent of the shop was Rs.5,500/- decided for a period of 11 months and 29 days and the defendant was informed orally to hand over the vacant and actual possession of the suit property to the plaintiff, but he had not done so. Thereafter, on institution of the suit, the defendant has on the order of the Court deposited the rent amount which has been received by the plaintiff on the order of the Court. The learned Trial Court has observed that the plaintiff’s suit filed against the defendant is on the basis of agreement Exh.40 dated 14.6.2011 and after the amending Rent Act, if a person does not implement the agreement, he could file an action and accordingly, the plaintiff states that he has filed the suit against the defendant. According to the plaintiff, he had given the notice as per the new Rent Act and he had not bonafidely received any rent from the defendant. The defendant in his cross-examination has stated that he had paid the rent from 14.6.2011 till August, 2015 at Rs.5,500/- per month. According to the plaintiff, he has received the money from the Court. The learned Judge has considered Exh.37, the money order post, and has also taken into consideration Exh.66 ledger account 3236 to 3241 to note that the rent till July, 2017 has been paid and that has been accepted by the plaintiff. The learned Judge has observed that the plaintiff had stopped receiving the rent from the defendant and therefore, the defendant was constrained to send money through money order and certain money orders were accepted by the plaintiff while others were refused. The learned Judge has observed that the plaintiff had stopped receiving the rent from the defendant and therefore, the defendant was constrained to send money through money order and certain money orders were accepted by the plaintiff while others were refused. The defendant has placed reliance on this fact to defend that the plaintiff had permitted him to continue in the possession of the property as a tenant and therefore, there was no determination or termination of tenancy. Before the learned Trial Court, it was argued that the legal notice which was sent dated 20.7.2012 was under Section 12(b) of the Gujarat Rent Act while on Page 3 of Paragraph 5 of the notice, the legal notice states that the client’s property in City Point Shop no.4/G has been kept in illegal and unauthorized possession from 13.6.2012. The plaintiff thus has specifically stated in the legal notice that the possession after 13.6.2012 of the defendant is unauthorized and illegal. By way of notice, the possession was demanded, while no claim for any arrears of rent was made. The learned Trial Court Judge believed that even after determination of the agreement of rent Exh.40, the rent has been recovered, but the learned Trial Court Judge has noticed that the rent was deposited under the order of the Court and thereafter, the rent has been received by the plaintiff. Exh.26 was moved by the defendant, and therefore, the learned Judge observed that there was no reason not to believe that the rent was deposited after an order below Exh.26 and therefore, the learned Trial Court concluded that the defendant has failed to prove issue no.6 of acceptance of rent by the plaintiff as a landlord after termination of the agreement of rent to be considered as a statutory tenant. 45. What becomes important in the present matter is that the suit cannot be determined as per the Gujarat Rent Act. The suit property is exempted premises where the Gujarat Rent Act would not be applicable. The evidence on record shows that after the order below Exh.26, rent was deposited in the Court. The said ordered amount is equivalent to rent money, would be the money as compensation for the use of property, which was apt in view of the Court. The suit property is exempted premises where the Gujarat Rent Act would not be applicable. The evidence on record shows that after the order below Exh.26, rent was deposited in the Court. The said ordered amount is equivalent to rent money, would be the money as compensation for the use of property, which was apt in view of the Court. This fact regarding the order of Court, itself suggests that the plaintiff as a landlord, was not willing to accept the rent amount from the defendant. 46. In Bhavanji Lakhamshi & Ors. v. Himatlal, AIR 1972 SC 819 , it was held that mere acceptance of amount equivalent to rent by a landlord from tenant in possession after a lease had been determined either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the act, cannot be regarded as evidence of a new agreement of tenancy. Learned advocate Mr. Raiyani has also relied upon the decision in the case of Sarup Singh Gupta (supra), where the case was raised on the fact of acceptance of rent by the landlord after service of notice to quit and before initiation of eviction suit, the question for consideration was whether it amounts to waiver of notice or there would be an inference of waiver, wherein it has been held that, for inference of such waiver, necessary condition is that there must be some act on the part of person giving notice, which evinces an intention to treat the lease as subsisting, and further the express or implied consent of person to whom such notice is given must also be established, and, whether such intention to waive the notice has been shown by the act concerned, is essentially a question of fact, and court must consider all relevant facts and circumstances. The mere fact that rent has been tendered and accepted after service of such notice cannot be determinative. There has to be other evidence to prove or establish that the landlord intended such waiver, wherein no such intention had been evinced by acceptance of such rent by the landlord, since even after accepting the rent tendered, landlord did file a suit for eviction and even while prosecuting the suit accepted rent which was paid to him by the tenant. In any case even if rent was neither tendered nor accepted, landlord in event of success would be entitled to payment of arrears of rent and Sections 113 and 111(h) of the T.P. Act would apply. 47. Here in the present case, even if certain money orders were accepted, such acceptance of money order would not be determinative factor to consider that the landlord had intended any such waiver. The very fact of depositing the money by an order of the Court itself suggest that there was no waiver of notice from the side of the landlord. Here in the present matter, the fact requires examination whether or not by accepting the money equivalent to rent, the landlord had the intention to waive the notice. There has to be evidence to prove and establish that the landlord actually intended such waiver. Here in this case, the defendant as a tenant failed to prove any such intention of the landlord. The notice which was issued specifies the demand of actual, vacant and peaceful possession of the property. 48. Learned advocate Mr. Jani has also raised an issue that there was no notice under Section 106 of the T.P. Act. Determination of the lease can be by efflux of time or by notice to quit. The plaintiff as a landlord had pleaded the case that the lease was for a fixed period of 11 months and 29 days. A notice was issued dated 20.7.2012, Exh.43. 48.1 Learned advocate Mr. Jani probably was making the submission about notice as the notice Exh.43 makes mention of Section 12(b) of the Rent Act. The reference of Section 12(b) for issuance of notice shall have no bearing, since the suit filed was not on any claim of arrears of rent. Section 12 of the Rent Act, is in connection with the ejectment, which will not ordinarily be passed if tenant pays or is ready and willing to pay standard rent and permitted increase. Exh.43 notice does not demand any money, it is a notice asking for possession of suit property within thirty days on receipt of the notice. The notice was received on 26.7.2012 and the reply to notice Exh.44 is dated 20.8.2012. Section 106 of the T.P. Act with effect from 1.1.2003 reads as under:- “106. Exh.43 notice does not demand any money, it is a notice asking for possession of suit property within thirty days on receipt of the notice. The notice was received on 26.7.2012 and the reply to notice Exh.44 is dated 20.8.2012. Section 106 of the T.P. Act with effect from 1.1.2003 reads as under:- “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 ? 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 sub-section. (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.” 49. In view of the amended provision of Section 106 of the T.P. Act, a lease of immovable property for agriculture or manufacturing purpose shall be a lease from year to year terminable on lessor or lessee by six months notice while the lease of immovable property for any other purpose shall be deemed to be lease from month to month terminable on part of either lessor or lessee by 15 days’ notice and the period mentioned shall commence from the date of receipt of notice. 50. 50. It has been clarified by sub-section (3) that the 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 expiry of the period mentioned in that sub-section. The notice as provided under subsection (4) 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. Here in the present matter, the agreement was for a period of 11 months and 29 days i.e. less than a year. Hence, the notice would be issued for a lease from month to month basis and would be terminable by either lessor or lessee by giving a 15 days’ notice. Here notice dated 20.7.2012 was issued with the notice period of 30 days, where under Section 106 of the T.P. Act, the notice period is for 15 days and thereafter, the suit was filed on 12.10.2012. Hence, the contention raised by learned advocate Mr. Jani that the notice was required to be served under Section 106 of the T.P. Act, would not be consistent to the evidence on record since the notice was issued prior to institution of the suit. 51. In the case of Pankajbhai Murabhai Dhoria v. Shantilal Vallabhdas Jogia decd. through legal heirs & Ors., reported in 2014 (2) GLR 1761 , in light of the amended provision of Section 4(1A) (b), it was held that after the expiry of the term of agreement, where the premises are given on rent for 11 months as per the agreement, thereafter, the status would be of a trespasser and it was held in context of Section 4(1A)(b) that the Gujarat Rent Act would not be applicable. 52. Here the suit of the plaintiff would be appreciated under the T.P. Act and as stated hereinabove, the suit premises is exempted from the provisions of the Gujarat Rent Act. 52. Here the suit of the plaintiff would be appreciated under the T.P. Act and as stated hereinabove, the suit premises is exempted from the provisions of the Gujarat Rent Act. Now in light of the evidence that the landlord had no intention for the tenant to continue in possession of the suit property after the determination of rent agreement, the status of the defendant in the suit property would not be of a statutory tenant since would not get any protection under the Rent Act. In view of the position of law, the question for consideration would be to examine whether the defendant is in the property as tenant holding over or tenant at sufferance. 53. The difference between the tenant holding over and tenant at sufferance has been explained in the case of R.V. Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140 , wherein it has been observed as under:- "7. Section 105 of the Transfer of Property Act defines "lease" of immovable property as "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 transfer by the transferee, who accepts the transfer on such terms”. Therefore, the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money etc. and the lessee accepts the transfer on such terms. Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money etc. and the lessee accepts the transfer on such terms. Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. Section 116 envisages the effect of holding over and provides that “if a lessee or under lessee of property remains in possession thereof after the determination of lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106”. Section 106 of the TP Act deals with the duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or asserted to the appellant's continuance in possession, he cannot be treated under Sec. 116 to be a tenant holding over.” 54. Thus, as referred hereinabove under Section 111 of the T.P. Act, the lease of immovable property determines by efflux of time limit limited thereby and after determination of the lease as laid down in Section 116 of the T.P. Act, the effect of holding over is when the lessor or his legal representative accepts rent from the lessee or under lessee or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year or from month to month, according to the purpose for which the property is leased, as specified in Section 106 of the T.P. Act. The holding over is inferred by conduct of parties which will bring out a new tenancy. Section 106 of the T.P. Act deals with the duration of certain leases in absence of written contract or local usage. Here in this case, there is a written lease of 11 months and 29 days. The holding over is inferred by conduct of parties which will bring out a new tenancy. Section 106 of the T.P. Act deals with the duration of certain leases in absence of written contract or local usage. Here in this case, there is a written lease of 11 months and 29 days. As per the facts of the case and circumstances, the learned Trial Court Judge has observed that the landlord had received money equivalent to the rent as agreed upon after the order of the court where the defendant as a tenant had deposited the money in the Court. The landlord has not accepted the money with an intention to allow the tenant to continue in possession and thus, he cannot be treated as a tenant holding over under Section 116 of the T.P. Act. 55. In the above-referred judgment of R.V. Bhupal Prasad, it is observed that the 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. Such possession would be by way of implication of law, when a person who has been in possession after that title has been determined, is without the consent of the person entitled. The tenant at sufferance does not create relationship of the landlord and tenant. The distinction has to be drawn between the tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. A person in possession without landlord’s consent is a tenant by sufferance. It is only lawful possession which is protected. The tenant by sufferance would have no legal right to protect the possession. He is to be considered as a trespasser. 56. In view of the reasons given hereinabove, since the present respondent being the defendant of the suit has no legal right to continue in the possession of the suit property, the present appeal is required to be allowed. The tenant by sufferance would have no legal right to protect the possession. He is to be considered as a trespasser. 56. In view of the reasons given hereinabove, since the present respondent being the defendant of the suit has no legal right to continue in the possession of the suit property, the present appeal is required to be allowed. The Appellate Court has erred in applying the Gujarat Rent Act which was not governing the suit premises as was not an existing premises on the commencement of the amending Act, 2001, and accordingly, the learned Appellate Court has erred in holding and declaring the respondent as statutory tenant after determination of the agreement between the parties dated 14.6.2011. 57. In the result, the Second Appeal is allowed. The judgment passed by the learned Appellate Court in Regular Civil Appeal no.8 of 2018 dated 29.11.2019 is quashed and set aside, and the judgment dated 11.1.2018 passed by the learned Trial Court in Regular Civil Suit no.176 of 2012 is hereby confirmed. However, there shall be no order as to costs. Record and proceedings be sent back to the Trial Court forthwith.