Mere demand of rent after notice to quit does not ipso facto operate as a waiver of the notice to quit.

Kanhaiya Singh, J.

1. These two consolidated appeals by the defendant from the concurrent decisions of the Courts below arise out of two suits for ejectment and recovery of damages for use and occupation and will be disposed of by one judgment.

2. The suits relate to a house standing on survey plot 1162 appertaining to khata 163 situate In the town of Buxar and the defendant appellant is in occupation of it. The plaintiffs claim to nave become the landlords of the house by virtue of a deed of surrender executed in their favour by their mother, Kamala Devi, and their maternal grand mother Sumitra Devi their maternal grand father, Balram Prasad Das, having predecesed his wife Sumitra without any issue other than the plaintiffs mother.

They asserted that the defendants were tenants of the house in suit at a monthly rental of Rs. 7. Their case is that the defendants defaulted in payment of rent and in fact paid no rent since after February 1946. On 1-6-1946, they served the defendants with a notice to quit the house by 30-6-1946, and deliver to them vacant possession. The defendants refused to vacate the house.

Thereupon, the plaintiffs instituted on 29-11-1946, Title Suit 185 of 1946 giving rise to Second Appeal 323 of 1952, and in the prayer to the plaint they asked (a) for ejectment of the defendants and for an order for delivering up of vacant possession, (b) for a decree for Rs. 70 on account of the arrear of rent from February 1946 till the date of the suit at the rate of Rs. 7 per month, (c) for compensation for use and occupation of the premises at the rate of Re. 1 per day from July 1946 to the date of the suit, and (d) for a decree for future mesne profits until the date of delivery of possession.

3. On 1-12-19,49, the plaintiffs instituted Money Suit 245 of 1949, giving rise to second Appeal 324 of 1952, on the same allegation and prayed for decree for arrear of rent from December 1946 till November 1949 at the rate of Rs. 7 per month and for compensation for use and occupation for the same period, that is, from December 1946 till November 1949 at the rate of Re. 1 per day, aggregating Rs. 1,080, the total claim in all being laid at Rs. 1,332.

4. The defence in both the suits was a denial of the relationship of landlord and tenant and a denial -of the title of the plaintiffs. The defendants admitted that the house belonged to Sumitra Devi, the maternal grandmother of the plaintiffs, but denied that she had surrendered the house in their favour. They denied that their tenancy was a monthly tenancy and asserted permanent tenancy. They alleged that Sumitra had made a permanent settlement with them of the disputed house and the land on which it stood at an annual ground rent of Rs. 38. Alternatively, they pleaded permanent tenancy by adverse possession for more than twelve years. They also denied the service of notice to quit.

5. The Courts below overruled all the objections of the defendants and have given the plaintiffs decrees in both the suits.

6. It will be seen that in the title suit for ejectment the plaintiffs had also claimed arrears of rent from February 1946 to the date of the expiry of the notice, that is 30-6-1946, and for the subsequent period from 1-7-1946 to the date of suit (which, is 29-11-1946) they had claimed rent and also damages for use and occupation. Similarly, in the Money suit, they had claimed simultaneously both rent and damages for use and occupation for the same period, that is, from December 1946 till November 1949.

In other words, they had claimed rent for the period subsequent to the expiry of the notice to quit. After the close of the arguments in the Court of first instance, they however, filed a petition for amendment of the plaints by deleting the claim for rent for subsequent period, and this prayer was allowed. Accordingly, both the Courts gave the plaintiffs decree for ejectment and also for arrears of rent from February 1946 to June 1946 and for damages for use and occupatio