C.M. Lodha, J.
1. The only Question calling for determination in this case is whether the notice of ejectment served by the plaintiff is valid?
2. There is no denying the fact that in the lease deed Ex- 7 there is a condition that the landlord would give one month's time to the tenant for vacating the premises in question. The objection on behalf of the appellant is that full one month's time was not granted by the notice Ex. 8 served by the plaintiff on the defendant. In support of his contention learned counsel for the appellant has relied upon D. G. Mehta v. B. D. Chudasama, AIR 3956 Bom 113.
3. In the present case in the notice Ex. 8 it is mentioned that 'a notice of one month's duration is being written that the vacant possession of the premises may be handed over within one month and that failing that after the expiry of the duration of the notice, legal proceedings for ejectment would be taken, through Court.'
4. The contention of the learned counsel for the appellant is that the plaintiff has demanded the possession of the premises before the expiry of one month and, therefore, the notice is bad. I am, however, not inclined to accede to this submission. The period of notice has been mentioned as one month and it has been further made clear that it is only after the expiry of the period that the plaintiff would resort to the proceedingsthrough the Court. Only an option has been given to the defendant to hand over possession within the period of notice. The Bombay case relied upon by the learned counsel is distinguishable on facts. It was found in that case that the language used by the landlord in the notice was slip-shod, so much so that the benefit of the slipshod language could not be given to the landlord. Consequently I am unable to uphold the appellant's contention in this respect.
5. Another objection raised by the learned counsel for the appellant regarding the validity of the notice is that there is no mention of termination of tenancy in it but it only calls upon the defendant to vacate the premises after the expiry of the period of the notice and hand over possession of the same to the plaintiff. In this connection he has relied upon Bradley v. Atkinson, (1885) ILR 7 All 899, Sunderlal v. Ram Krishan, AIR 1960 All 544 and Ahmad Ali v. Jamal Uddin, AIR 1963 All 581.
6. On the other hand learned counsel for the respondent has submitted that in the present case the tenancy was at will and according to the terms of the Kabuliat Ex. 7 all that was required was to give one month's time to the defendant for vacating the premises in question. It is, therefore, submitted that it was not necessary for the plaintiff to have strictly complied with Section 106 of the Transfer of Property Act. In support of his contention he has relied upon Surajmal v. Sitaram, AIR 1955 Raj 1 Harish Chandra v. Chothmal, 1959 Raj LW 353 and Jhalku Singh v. Chandrika Singh, AIR 1961 Pat 350. In the alternative he has also argued that a notice of termination of tenancy is to be liberally construed, and the, intention to determine the tenancy has to be gathered from the facts and circumstances of the case. It is argued that it is crystal clear from the language used in the notice Ex. 8 that the plaintiff did not want to continue the defendant as his tenant in the premises in question and therefore, even if it has not been stated in so many words that the tenancy is terminated. it must be inferred from the language of the notice as a whole that the intention of the plaintiff was clearly to put an end to the tenancy and to treat the possession of the defendant after the expiry of the period of notice as unauthorised.
7. I have gone through the rulings cited at the Bar and have come to the conclusion that the authorities relied upon by the learned counsel for the appellant are distinguishable on facts. In (1885) ILR 7 All 899 and so also in AIR 1963 All 581, it was inferred from the conduct of the plaintiff that his intention was only to bring pressure on the tenant to cay up the arrears of rent and it wag with that intention that possession of the premises was demanded from him otherwise the intention was not to terminate the tenancy and treat the defendant-tenant as a trespasser after the expiry of the period of notice. It is a question of fact in each case whether the intention of the landlord by giving a particular notice was to terminate the tenancy or only to bring pressure upon the tenant to pay the arrears of rent. No specific objection was taken by the defendant in the present case that the notice was bad because it did not terminate the tenancy as contemplated by Section 111(b) of the Transfer of Property Act. Only a wide and vague plea was taken that the notice was not legal. The objection which is specifically sought to be raised now cannot be said to be a pure question of law but it is a mixed question of fact and law, namely whether the intention of the landlord was to terminate the tenancy by the notice Ex. 8 or was merely to bring pressure on the defendant to pay up the arrears of rent or the notice was for any other purpose. Consequently in absence of any such plea haying been raised by the defendant, the plaintiff had no opportunity to meet the case which is now sought to be put in second appeal. Besides that on going through the notice Ex. 8. I find that there is a definite statement therein that the plaintiff did not want to continue the tenancy of the defendant any further and that he wanted to have vacant possession of the shop after the expiry of the period of notice. Thus on reading the notice as a whole I am of opinion that the intention of the plaintiff was to terminate the tenancy. In this view of the matter it is not necessary to go into the other question canvassed by the learned counsellor the respondent that the tenancy in the present case was at will and no notice of termination of tenancy was necessary.
8. As a result of the foregoing discussion I have come to the conclusion that the defendant-appellant is not entitled toget the plaintiff's suit dismissed on account of any defect in the notice of ejectment.
9. The result is that I do not see any force in this appeal, and hereby dismiss it. In the circumstances of the case. I leave the parties to bear their own costs. Two months' time is allowed to the appellant to hand over vacant possession of the shop in question failing which the respondent shall be entitled to execute the decree.