Filing an eviction suit itself determines a month-to-month tenancy under Section 106 TPA.

The appellants-plaintiffs sought recovery of khas possession of premises no. 124A, Acharya Jagadish Chandra Bose Road, Kolkata, and mesne profits of ₹1,34,16,000, alternatively an enquiry into mesne profits.

The property had originally been leased to the predecessor of the defendants by a registered deed dated 17 May 1946 for thirty years, for use as a motion picture theatre.

By letter dated 7 June 1976, the parties agreed to renew the lease for seventeen years, ending on 14 April 1993, at a monthly rent of ₹1,475, but no subsequent registered lease deed was executed.

Rent was last accepted for March 1993, but the defendants continued in possession. The suit was instituted in 2002.

The learned Single Judge held that, after expiry of the renewed lease, the defendants became tenants holding over on a month-to-month basis under the Transfer of Property Act, 1882, and that the tenancy had not been terminated by notice under Section 106; the suit was consequently dismissed.

Whether a suit for eviction against a tenant holding over on a month-to-month tenancy under the Transfer of Property Act, 1882 is maintainable without a prior notice under Section 106 of the Act?

Whether the death of defendant no. 7, without substitution of his legal representatives, affected the maintainability of the suit?

Whether the alleged merger of the suit property with an adjoining property, and the non-impleadment of the owner of the adjoining property, defeated the plaintiffs’ claim?

Whether the plaintiffs were entitled to recovery of possession and mesne profits, and whether the matter required an enquiry for determination of the quantum and liability?

Section 106 of the Transfer of Property Act, 1882 governs determination of a month-to-month tenancy; however, following Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728, the filing of an eviction suit under the general law itself operates as notice to quit, and a separate notice under Section 106 is not necessary.

The same principle was applied by the Coordinate Division Bench in M/s. Xclusive Inn Private Limited & Ors. v. Anjana Guha & Ors., FAT 270 of 2023, decided on 9 July 2026.

Under Order XXII Rule 4 of the Code of Civil Procedure, 1908, substitution may be dispensed with where the deceased defendant had neither filed a written statement nor appeared to contest, and no relief severable from that claimed against the other defendants was sought.

Under Order XLI Rule 24 CPC, an appellate court may finally determine the suit where the evidence on record is sufficient.

Under Order XX Rule 12(1)(c) CPC, the court may direct an enquiry into rent or mesne profits from the institution of the suit until delivery of possession.

A tenant remaining in possession after determination of the tenancy is a tenant at sufferance, without a continuing right or title, and is liable for mesne profits.

The Court accepted the finding that the renewed lease expired on 14 April 1993, that no registered lease was thereafter executed, and that the defendants continued as tenants holding over from month to month under the Transfer of Property Act.

Applying Nopany Investments and Xclusive Inn, the Court held that the institution of the 2002 eviction suit itself determined the tenancy by operating as a notice to quit; consequently, the absence of a prior Section 106 notice did not eliminate the cause of action or render the suit non-maintainable.

Once the tenancy stood determined, the defendants’ continued possession became wrongful, entitling the plaintiffs to recovery of possession.

The non-substitution of defendant no. 7 was immaterial because he had neither appeared nor filed a written statement, and no severable relief was claimed against him.

The alleged merger of the property also did not defeat the suit because the landlord–tenant relationship between the parties was admitted.

Since the available materials did not establish the quantum of mesne profits or the precise liability of the individual defendants, the Court directed a separate enquiry.

The plaintiffs were granted a decree for recovery of khas possession of the suit property against the defendants and all persons claiming through or under them.

The Court held that the plaintiffs were entitled to mesne profits and directed an enquiry into the amount payable from the institution of the suit until delivery of possession, leaving the liability of the individual defendants to be determined in that enquiry.

Mr. Sarosij Dasgupta was appointed Special Referee to conduct the enquiry and submit his report to the learned Single Judge; the decree for possession was made immediately executable and was not to await completion of the enquiry.

The suit was remanded to the Trial Court for the limited purpose of determining mesne profits, and the suit stood decreed in part.