The acceptance of rent by a landlord after the determination of a thika tenancy by service of notice to quit does not necessarily constitute waiver and disentitle the landlord from obtaining an order for eviction.

1. This revisional application is directed against a conditional decree for ejectment passed against the petitioner, Sm. Renubala Dassi, under section 5, Calcutta Thika Tenancy Act. The case of the opposite party landlord was that the petitioner was in possession of 2 kattas of land described in the schedule of the application as a monthly tenant at the rate of Rs. 4 per month according to Bengali calendar months. The opposite party claimed that he required the land for the purpose of building on the land and otherwise developing the land and discontinuing the system of thika tenancy. A notice to quit dated the 10th July, 1953 was sent to the petitioner by registered post but the petitioner refused to accept the same. Another copy of the notice was sent under certificate of posting. As the petitioner did not vacate, the opposite party started proceedings under section 5 of the Calcutta Thika Tenancy Act on the 23rd April, 1954.

2. Before the Controller the petitioner contested the application for ejectment on the ground that notice was not valid and sufficient, that the application was bad for defect of parties and that the opposite party did not require the land for the purpose of building and development. These points were however decided in favour of the opposite party landlord and a conditional order of ejectment was passed, viz., that the petitioner would be evicted from the suit land on the opposite party paying or depositing the compensation agreed between the parties or in default of agreement of compensation determined by the Controller on the application of either party.

There was an appeal by the petitioner which was decided by Sri S. P. Chatterjee, Subordinate Judge, Howrah. Before the appellate court the only points urged were that the, notice to quit was not valid and sufficient, and that there had been waiver of the notice to quit by the landlord by acceptance of rent after the determination of the tenancy. The learned Subordinate Judge however decided this point in favour of the opposite party landlord and so dismissed the appeal. The tenant as petitioner has therefore filed this revisional application.

3. The only point urged before me is the point of waiver, viz., that the landlord by accepting the rent even after the determination of the tenancy has waived the notice to quit and he is not therefore entitled to a decree for ejectment. By the terms of the notice to quit the tenancy was determined at the end of Aswin, 1360 B. S. and the tenant petitioner wan directed to quit at the end of Aswin 1360 B. S. It is however admitted that the landlord accepted the rent sent by postal money order up to Falgun, 1361 B. S., i. e. for more than a year after the determination of the tenancy by the notice to quit and even for some months after filing proceeding for ejectment. The point is whether such acceptance of rent by postal money order constituted waiver and disentitled the landlord from obtaining an order for eviction. The learned Subordinate Judge relied on the terms of section 22 of the Calcutta Thika Tenancy Act and the decisions in Davies v. Bristow (1) (1920) 3 K.B. 428 and Manindra Nath De v. Man Singh (2) 85 C. L. J. 339. for holding that the landlord by his acceptance of rent after the determination of the tenancy by service of notice to quit did not waive the notice or renew the tenancy, there being no intention on the part of the landlord to continue the tenancy under the old terms.

4. Mr. Dwijendra Nath Das appearing for the petitioner has urged that section 22 of the Calcutta Thika Tenancy Act does not take away the effect of section 113 of the Transfer of Property Act and that illustration (a) to section 113 of the Transfer of Property Act would still apply directly to the facts of the case and would show that the landlord had waived the notice to quit, As regards the two cases relied upon by the learned Subordinate Judge, Mr. Dan has urged that they relate to cases under the West Bengal Premise