Mere payment and acceptance of rent, even though the tenant may be continuing in possession, would not necessarily establish the requisite 'consensus ad idem' between the parties to renew the lease or "to treat the lease as subsisting" and would not thus operate either as waiver of the notice to quit under Section 113, Transfer of Property Act or as a renewal of the tenancy or "holding over" under Section 116 of the Act.

( 1 ) THE appellant was a monthly tenant under the respondent landlady in respect of what may be called the garage room at premises No. 171-A Lansdowne Road, Calcutta, at a rental of Rs. 18/- per month. The tenancy was terminated by a notice to quit under Section 111 (h), Transfer of Property Act on and from the 1-5-1949 and the tenant having failed to vacate the room in question in terms of the said notice, the present suit for ejectment was filed on the 7-6-1949.

( 2 ) IN the plaint there was a specific allegation that the disputed room was required by the plaintiff landlady bona fide for her own use and occupation, namely, as a garage for her car and, upon such allegation, it was pleaded that the Rent Control Act of 1948 which was then in force would not stand in the way of her getting of a decree for ejectment.

( 3 ) THE defence denied the truth of the plaintiff's allegation and claimed protection under the Rent Control law.

( 4 ) THE learned Munsif accepted the plaintiff's case and gave her a decree. On appeal this decision was affirmed by the learned Subordinate Judge who accepted the learned Munsif s finding in the plaintiff's favour and also rejected the further defence plea of waiver of the notice to quit by alleged subsequent acceptance of rent by the landlady during the pendency of the ejectment appeal in the lower appellate court.

( 5 ) AT the instance of the tenant, the matter came up to this Court in second appeal and Chunder J. who heard the tenant's appeal remanded the case to the lower appellate court for a fresh consideration of this question of waiver --and apparently also the somewhat analogous question of 'holding over' -- in accordance with law after giving the parties opportunity to produce additional evidence on the point.

( 6 ) THE rehearing, however, has brought no relief to the tenant and the learned Subordinate Judge, before whom the tenant's appeal was reheard in pursuance of the judgment of Chunder J. , after taking additional evidence on the question of waiver of the notice to quit and the other question, namely, that of 'holding over', referred to above, has again dismissed the same and affirmed the trial court's decree for ejectment. Hence the present second appeal by the tenant.

( 7 ) THE only point which requires consideration is whether the notice to quit has been waived under Section 113, Transfer of Property Act or a 'new tenancy' created by holding over under Section 116 of the said Act by the subsequent acceptance of rent and whether on that ground the decree for ejectment ought to be vacated.

( 8 ) THE alleged acceptance of rent which, according to the appellant-tenant, constituted waiver of the notice to quit under Section 113, Transfer of Property Act or created a 'new tenancy' by hold ing over under Section 116 of the said Act was, as already sufficiently indicated, during the pendency of the ejectment appeal in the lower appellate court. The learned Munsif passed the decree for ejectment on the 17-2-1950. The tenant filed his appeal on the 4-5-1950 and his allegation is that sometime in August 1951 while the appeal was pending before the lower appellate court the landlady accepted rent for the month of July 1951. The receipt of this rent is not denied but, according to the plaintiff's husband, who was examined in the case and to whom, admittedly, the payment in question was made, the money was accepted on the appellant's representation that he was finding it costly and difficult to deposit rent in court which obviously meant the court of the Rent Controller. The defendant's version was that the payment was made on the assurance of the plaintiff's husband that some other land would be given to him in lieu of the disputed premises.

( 9 ) ON the above state of the evidence, the lower appellate court has held that there was no waiver of the notice to quit and no 'holding over' as contemplated by law. In the opinion of the learned Subordinate Judge the eviden