JUDGMENT - GAVAI B.R., J.: - Being aggrieved by the judgment and order passed by the learned Small Causes Court, Nagpur, dated 2nd December, 1996, thereby decreeing Regular Civil Suit No. 907 of 1988 filed by the present respondents and the judgment and order passed by the learned 5th Additional District Judge, Nagpur, dated 21st July, 1997 thereby dismissing the appeal of the present applicant, the applicant approaches this Court by way of the present revision.

2. Mazharali s/o Sk. Mohsin Bhai, the predecessor in title of the present respondents, filed Civil Suit No. 907 of 1988 against the present applicant, claiming that he was the landlord of the suit premises and that the defendant was his tenant, after obtaining permission from the Rent Control authorities, which came to be confirmed upto the Apex Court. Prior to that a notice dated 27th May, 1988 was issued to the defendant-tenant thereby terminating the tenancy with effect from 30th June, 1988 and asking the defendant to deliver the possession of the suit premises. Since the defendant did not comply with the said notice, the plaintiff-landlord filed a suit in the Court of the Small Causes at Nagpur for possession and mesne profit for the period from 1-7-1988 to 5-7-1988. The suit was dismissed in default on 6-2-1991. An application for restoration being M.J.C. No. 57 of 1991 was filed on behalf of the plaintiff. The suit came to be restored vide order dated 7th October, 1995. In the interregnum, the original plaintiff Mazharali expired and the proceedings were prosecuted by his legal heirs, the present respondents.

3. The suit was defended by the defendant. The defendant denied that the plaintiff was the owner of the suit premises. The defendant further averred that the notice for termination was not valid. It was further the case of the defendant that since the plaintiff had accepted the rent on 18-9-1993 , it amounted to waiver of the notice and creation of fresh lease.

4. After framing the issues, the learned trial Court held that the question of ownership of the plaintiff was decided by the Rent Control proceedings which was confirmed upto the Apex Court and that the said findings operate as res judicata. The learned Court also found that notice for termination of tenancy was legal and valid. It also found that mere acceptance of rent does not amount to waiver of notice. The learned trial Court, therefore, decreed the suit vide judgment and order dated 2nd December, 1996 by directing the defendant to deliver the vacant possession of the suit premises to the plaintiff within a period of three months.

5. Being aggrieved by the judgment and order passed by the learned trial Court, the defendant-tenant preferred a appeal. The defendant-appellant raised all the points before the learned Appellate Court which were raised by him before the trial Court. However, the learned first Appellate Court negatived all the points and dismissed Regular Civil Appeal No. 12 of 1997 filed by the tenant-defendant. Being aggrieved by these two judgments, the defendant-tenant as approached this Court by way of present revision.

6. Heard Miss J.J. Kataria, the learned Counsel for the applicant and Shri P.N. Kothari, the learned Counsel for the respondents.

7. Miss Kataria, the learned Counsel for the applicant, submitted that the plaintiff has himself deposed in his deposition that he did not have the knowledge of terms of lease. She, therefore, submitted that the contention raised by the plaintiff that the tenancy commences from first of every English Calendar month was not true. She further submitted that the learned lower courts ought to have seen that the tenancy commences from 10th of every month and, therefore, the learned lower courts ought to have held that the notice is not valid. She further submitted that particularly when the witness was not cross-examined on this point, the evidence ought to have been accepted. She placed reliance on the judgment of Patna High Court in the case

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