JUDGMENT :

This second appeal under section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree passed by the learned Second Additional District Judge, Berhampur in T.A. No. 13 of 1990.

2. The predecessor-in-interest of the respondents as the plaintiff had filed the suit i.e. T.S. No. 80 of 1983 in the court of Munsif, Berhampur (as it was then) against the appellant being arraigned as the defendant for the following reliefs:

(a) directing the defendant to deliver vacant possession of the suit property to the plaintiff in its original condition, after removal of structures, etc. at his own cost and in default to cause delivery to the plaintiff, the property be delivered through court;

(b) to grant cost of the suit, and

(c) to grant such other relief as the Hon’ble court deems fit under the circumstances of the case.

3. Plaintiffs case is that on 01.07.1953, one Rama Chandra Mardaraj Deo, the father of the original plaintiff executed a registered lease deed (Ext.1) in favour of Burmah Shell and Oil Storage and Distributing Company of India Ltd., with its duration for a period of thirty years commencing from on and 01.11.1952. The suit premises was leased out to the defendant for its use as Petrol Pump on a monthly rent of Rs.45/-. The lease expired by efflux of time on 31.10.1982. As per the conditions of the said lease deed, clause of renewal was provided at the option of the lessee expressing its desire for the same to the lessor three months prior to the expiration of the period of lease. The original plaintiff issued notice dated 01.03.1982 expressing his intention not to further extend the lease and asking Bharat Petroleum Corporation Ltd. to vacate the premises on expiry of the lease period on 31.10.1082. It may be stated that M/s. Bharat Petroleum Corporation Ltd., had by then stepped into the shoes of the original lessee by virtue of the enactment i.e. Burmah Shell (Acquisition of Undertaking in India) Act, 1976. Since no reply was received, the notice vide Ext.4 dated 01.10.1982 was again issued with a request to hand over the possession of the suit site. This notice also went without any response. M/s Bharat Petroleum Corporation Ltd., then issued a letter vide Ext.5 dated 14.10.1982 expressing its intention for renewal of the lease for further period of five years with effect from 01.11.1982 which was just about sixteen days prior to the expiry period of lease. The original plaintiff then issued another letter on 22.10.1982 (Ext.6) expressing his clear intention in no more renewing the lease and thereby again commanded for delivery of vacant possession of the suit premises which also went unheeded. So, the suit for eviction has come to be filed for directing M/s. Bharat Petroleum Corporation (defendant) to deliver the vacant possession of the suit premises.

It may be placed here that during pendency of the suit, upon death of the original plaintiff his legal representatives pursued the suit being substituted in his place.

4. Admitting the execution of the date of lease for a period of thirty years, the defendant inter alia pleaded that on the death of the father of the original plaintiff, who was the lessee, the original plaintiff being his son received the rent. Defendant asserted to have never defaulted in payment of the rent. It is stated that by acceptance of the rent, the right to raise any allegation regarding default of payment stood waived. It is further stated that the defendant had intimated the original plaintiff by notice in writing in exercising the option of renewal of the lease and thus lease stood automatically renewed with all those terms and conditions as those were before. It is further stated that the original plaintiff by accepting the rent after expiry of the period of lease has thereby accepted the renewal and as such the defendant is not liable to be evicted during that period of extended lease as claimed. The notice is said to be not in terms of section 106 of the T.