The main legal point established in the judgment is that the acceptance of rent after issuance of notice can amount to waiver under Section 113 of the Transfer of Property Act, showing an intention to treat the lease as subsisting.

1. The Appellant/Plaintiff has projected the instant Second Appeal as against the Judgment and Decree dated 20.09.1996 in A.S.No.99 of 1996 passed by the Learned Additional Subordinate Judge, Nagapattinam, in affirming the Judgment and Decree dated 04.01.1995 in O.S.No.107 of 1992 passed by the Learned District Munsif, Nagapattinam.

2. The First Appellate Court viz., the Learned Additional Subordinate Judge, Nagapattinam, while passing the Judgment in A.S.No.99 of 1996 (filed by the Appellant/Temple), on 20.09.1996, has inter alia observed that 'as per Section 106 of the Transfer of Property Act, Ex.A.2 Notice has been issued and as per Section 111(h) of the Tenancy Agreement, Ex.A.2 Notice has been terminated on 31.12.1987 and that the Respondent/Defendant has been in enjoyment of the suit property and that the Respondent/Defendant has paid the rent in respect of the place as per Section 116, which has been accepted by the Appellant and as such, it is to be construed that as per Section 113, the Appellant/Plaintiff has given up the initiation of further proceedings and based on Ex.A.2 Notice, the relief prayed for by the Appellant/Plaintiff that the Respondent/Defendant is to vacate and hand over possession, cannot be granted and further opined that the Appellant/Plaintiff is not entitled to obtain the relief of recovery of arrears of rent in respect of the suit property and consequently, dismissed the Appeal without costs, thereby, affirming the Judgment and Decree passed by the trial Court in the main suit.'

3. Before the trial Court, in the main suit, 1 to 4 Issues have been framed for adjudication. On behalf of the Appellant/Plaintiff, Witness PW1 has been examined and Ex.A.1 to Ex.A.3 have been marked. On the side of the Respondent/Defendant, Witness DW1 has been examined and no documents have been marked.

4. The trial Court, on a scrutiny of the entire oral and documentary evidence available on record, has come to a consequent conclusion that since the plea of rental arrears has not been established through the evidence of PW1 on behalf of the Appellant/ Plaintiff with the aid of documents satisfactorily and out of Rs.150 rent, less payment of Rs.85/- made by the Respondent/Defendant, the out standing amount cannot be construed as arrears of rent and the same has not been proved to the satisfaction of the Court either through documents or through the evidence of PW1 and on that basis, the relief prayed for by the Appellant/Plaintiff that the Co-operative Housing Society should vacate from the place, cannot be granted in favour of the Appellant/Plaintiff. Moreover, it also held that after a long delay, the Appellant/Plaintiff has claimed a sum of Rs.10,458.60 and that it has not been proved firmly that on what manner, the Respondent/ Defendant has agreed to pay the enhanced rent of Rs.150/- and also it is not established that there has been any agreement between the parties and therefore, held that the Respondent/Defendant is not liable to pay the outstanding amount and dismissed the suit without costs.

5. At the time of admission of the Second Appeal, this Court has formulated the following substantial question of law for determination.

“Whether the Plaintiff by accepting the Rent had waived the notice issued under Section 106 of the Transfer of Property Act?”

6. The Contentions, Discussions and Findings on substantial question of law:

The Learned Counsel for the Appellant/Plaintiff submits that the trial Court as well as the First Appellate Court have committed an error in coming to the conclusion that the Appellant/Plaintiff (Temple) cannot legally make a claim of enhanced rent from the Respondent/Defendant (Tenant).

7. The Learned Counsel for the Appellant/Plaintiff (Temple) contends that both the Courts below have incorrectly held that the Respondent/Defendant is not liable to pay the enhanced rent to the Appellant/Plaintiff Temple in the absence of Respondent/Defendant's express consent for such an inc