Mere acceptance of rent after a notice to quit does not constitute a waiver of the notice. There must be an intention to treat the lease as subsisting.

ALLADI KUPPUSWAMI, J.

( 1 ) THE respondent herein filed a suit against the appellant O. S. No. 1000/71, District Munsifs Court. Rajamundry, for eviction and recovery of possession of a building at Rajamundry. His case was that the defendant was his tenant and that plaintiff issued a notice on 24-9-1971 asking the defendant to quit the premises on or before 31-10-1971. As the building was constructed after 16-7-1957, the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act will not apply. The defendant contended that the building was constructed before 1957 and hence the proper remedy of the plaintiff was to file an eviction petition under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act and the suit was not maintainable. Even though the plaintiff had issued the notice to quit, he had accepted the rent from the date on 3-11-1971 and 3-12-1971 and subsequently. In these circumstances the said acceptance operated as waiver of the notice to quit.

( 2 ) THE learned District Munsif held that the Building was constructed after 1957 and hence the Buildings (Lease, Rent and Eviction) Control Act was not applicable. The notice to quit was valid and proper and there was no waiver of the said notice by the plaintiff in accepting the rent and the defendant was liable to vacate the premises and give possession to the plaintiff.

( 3 ) ON appeal the learned District Munsif affirmed the judgment and decree of the court below and dismissed the appeal with costs he also held that the suit building was constructed after 1957 and hence the Buildings (Lease, Rent and Eviction) Control Act was not applicable. He agreed with the trial court that the notice to quit was proper and there was no waiver of the notice to quit.

( 4 ) THE question whether the building was constructed before or after 1957 is a question of fact and as both the courts have given a finding after considering the evidence, I am not inclined to interfere with that finding in Second Appeal.

( 5 ) IT cannot also be seriously contended that the notice to quit was not valid and proper as it was issued on 24-9-1971 and gave more than a months time for vacating the premises.

( 6 ) THE only question, therefore, which remains to be considered is whether there was a waiver of the notice to quit. The se of the defendant is that the plaintiff accepted rent under two receipts Ex. B-1 dated 3-11-1971 and ex. B-2 dated 3-12-1971. The month for which the rent was paid and received under these two documents are not mentioned, but as there is no evidence to show that there was any arrear due on the date, it is clear that Ex. B-1 represents the receipt of the rent for the month of October, 1971 and Ex. B-2 represents the receipts of the rent for the month of November, 1971. The defendant relies upon Section 113 of the Transfer of Property Act which is as follows :"a notice given under Section 111 (b) is waived with the express or implied consent of the person to whom it was given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration : (a) A lessor gives B a lessee notice to quit the property leased. The notice expires B tenders and A accepts rent which was due in respect of the property since the experience of the notice. The notice is waived. "it is argued that the mere acceptance of the rent which has become due since the expiration of the notice would operate as a waiver and in this case there was such an acceptance. It is seen that Ex. B-1 would not operate as waiver. The only question, therefore, is whether Ex. B-1 which represents the rent for November, 1971 would operate as a waiver in this case. The plaintiff as P. W. 1 admitted that after the quit notice, the defendant was paying the rent regularly, but he denied that he accepted the rent with the intention of continuing the tenancy. He stated that when he received the rent under E. B-2 he issued the receipt without knowing the legal effe

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