JUDGMENT

A. K. PARICHHA, J. — This is a defendant’s appeal against the judgment and decree passed by the learned District Judge, Ganjam-Gajapati, Berhampur in RFA No.15 of 2005 confirming the order of eviction passed by the learned Civil Judge (Senior Division), Berhampur in T.A. No.137 of 1995.

2. The present respondent as plaintiff filed the above suit with the pleading that she is the owner and landlord of the suit house and she inducted the present appellants as tenants in that house, but the appellants-tenants defaulted in payment of rent. She also pleaded that she needed the suit house for her personal use and therefore, served a notice under Section 106 of the Transfer of Property Act (hereinafter to be referred to as “the Act”, in short) asking the appellants to quit the house, but when the latter failed to vacate the house, she filed the suit for eviction and damages.

3. The appellants-defendants admitted the relationship between the parties, but pleaded, inter alia, that they never defaulted in payment of rent, the plaintiff does not require the suit house for her own use, but she filed the suit for eviction because they did not agree to her proposal for enhancement of rent from Rs.1000/- to Rs.1500/- per month. In the written state¬ment, they further averred that the plaintiff-respondent even after serving the notice under Section 106 of the Act received rent from them, thereby waiving the quit notice allowed the defendants to continue in the suit house as tenants by holding over.

4. Learned trial Court framed as many as six issues, accepted evidence of the parties and on consideration such evi¬dence, came to hold that the defendant No.1 had taken the suit house on rent for a short period with the promise to vacate the same for use of the plaintiff at short notice, that the defendant No.1 was not a defaulter in payment of rent, that the plea of demand of higher rent of Rs.1500/- was probable, that the defendants are liable to vacate the suit house and to pay damages at Rs.1500/- per month till the date of vacation. The defendants carried appeal before the learned District Judge, Ganjam-Gajapati, Berhampur. The present respondent also carried cross-appeal. On re-consideration of the evidence and the submission of the counsel for the parties, learned first appellate Court in the im¬pugned judgment held that the notice under Section 106 of the Act is valid, that the tenancy did not continue by waiver or holding over, that there was bona fide requirement of the landlord and accordingly, dismissed the appeal while allowing the part of the cross appeal.

The said judgment and decree of the learned 1st appellate Court is under challenge in this appeal.

5. The following substantial questions of law were formu¬lated for consideration.

(i) Whether by accepting rent tendered by the defendant, the plaintiff-respondent waived the quit notice and whether such acceptance tantamount to renewal/continuance of the tenancy by holding over ?

(ii) Whether the evidence adduced by P.W.1, son and Power of Attorney Holder of the plaintiff can be treated as evidence on behalf of the plaintiff or adverse inference under Section 114 of the Evidence Act would be drawn against the plaintiff for not giving her evidence in the Court as a witness ?

6. Mr. Mishra, learned counsel for the appellant relying on The Kind v. Paulson and others, AIR 1920 Privy Council, and Chotu Mia v. Mt.Sundri AIR(32) 1945 Patna 260 submits that once the landlord receives the rent after service of quit notice on the tenant, it will be presumed that he has waived the quit notice and continuance of the tenancy would be presumed to con¬tinue. As against this Mr. K.A. Guru, learned counsel for the respondent submits that simple acceptance of rent by the landlord after the quit notice, neither amounts to waiver of the quit notice nor the tenancy would automatically continue by holding over unless there was express or implied consent of the landlord to continue with the tenancy