MOHOMMED SADRUDDIN KHAN Vs. GULAM MOHIUDDIN

JUDGEMENT

(1.) THIS appeal arises in a suit filed by the Respondent for ejectment of the Appellant alleging that he took the Chabutra on a lease from the Respondent. Among the various defences that were raised the most important defence was that subsequent to the issuing of the notice by the landlord to the tenant to vacate the premises the landlord accepted rent from the tenant and, therefore, this conduct of the landlord amounts to waiver in -law and therefore, it could not be regarded as though the tenancy is terminated. The other objection was that the notice that was given to the tenant did not expire at the end of the month as required by the Transfer of Property Act and therefore, the notice was bad, The third objection was that the landlord executed an agreement in favour of the tenant stating that he would allow the tenant to continue to be in possession of the Chabutra and further that if at any time the landlord sought to eject the tenant, any additions that the tenant might have mads or any construction that he might have built on the Chabutra, he would. be entitled to compensation for the constructions; and additions. The first court decreed the Plaintiff's suit. On appeal by the Defendant to the lower appellate court, the lower appellate court accepting the plea of waiver held that in as much as landlord had accepted the rent after he had given notice it amounted; to waiver within the meaning of Section 130, T. P. Act. The present appeal is by the landlord.

(2.) SO far as this question of waiver is concerned I am of opinion that no question of waiver can arise for this reason that the mere fact that rent is accepted after a notice of ejectment is given would not amount in law to a waiver of the right of the landlord to eject a tenant. There ought to be an express intention on the part of the landlord to waive his right to eject a tenant. Acceptance of rent subsequent to the date of sending of the notice does not necessarily amount to waiver if there is no evidence with regard to the same. This view of mine is supported by a decision of the Bombay High Court reported in - 'Navneeth lal Chunilal v. Bapulal, AIR 1952 Bom 132 and also by a decision of this Court reported in -'40, Deccan LR 385'. If the tenancy is taken to have terminated, the amount that the landlord accepts would be treated as damages for use and occupation from a tenant holding over. So this plea of waiver has no force.