JUDGMENT:- This is an appeal against the order dated 8-9-1965 of Sri S.K. Rai. Civil Judge. Allahabad, allowing the defendants appeal in part and decreeing the plaintiffs suit for the recovery of Rs. 31/- as arrears of rent and possession.

2. The suit giving rise to this appeal was filed by the plaintiff-respondent against the defendant-appellant for the recovery of Rs. 59/- as arrears of rent and Rs. 9/- as damages for use and occupation and ejectment in respect of a house detailed in the plaint on the allegations that the defendant was a tenant of the plaintiff in the house in dispute on a monthly rent of Rs. 15/- and Rs. 930/- were due from the defendant to the plaintiff for arrears of rent for the period between 1-1-1959 and 31-3-1964 after crediting the amount of Rs. 111/- sent by the defendant by money order and Rs. 54/- paid by the defendant towards House Tax and Water Tax. The plaintiff terminated the tenancy of the defendant by a notice dated 7-5-1964. Hence the suit.

3. The defendant resisted the claim on the ground that the correct rate of rent as Rs. 5/- Per mensem. It was alleged that the plaintiff had filed a previous suit No. 272 of 1961 for arrears of rent for the period between 1-1-1958 and 29-3-1961 and it was dismissed, and that the judgment in that suit operated as res judicata. It was further alleged that the defendant sent Rs 111/- to the plaintiff in full satisfaction of his claim and the plaintiff accepted that amount unconditionally and cannot go behind that position. The validity of the notice to suit was challenged.

4. The learned Munsif, before whom the suit was originally filed, after taking evidence of the parties, came to the conclusion that the correct rate of rent between the parties was Rs 5/- per mensem. He also held that the decision in suit No. 272 of 1961 was res judicata between the parties. He further held that Rs. 185/- were due to the plaintiff from 1-3-1961 to 31-3-1964, out of which the defendant paid only Rs. 111/- to the Plaintiff and the defendant paid Rs. 54/- as taxes to the Municipal Board. The balance of Rs. 28/- was due to the plaintiff, out of which the defendant sent only Rs. 10/- by money order which was rightly refused by the plaintiff as that amount fell short of the rent due. He further held that the notice of ejectment was perfectly valid and there was a wilful default on the part of the defendant. On these findings, the learned Munsif decreed the suit for possession and recovery of Rs. 59/- as arrears of rent besides Rs. 9/- as damages for use and occupation.

5. On appeal by the defendant against the aforesaid decree, the First Appellate Court confirmed the findings of the trial court that the rate of rent was Rs. 5/- per mensem only. The findings of the trial court that the judgment in suit No. 272 of 1961 operated as res judicata was set aside. The Lower Appellate Court also agreed with the finding of the trial court that there was a wilful default in payment of rent: but it came to the conclusion that only Rs. 20/- were due to the plaintiff for the arrears of rent plus Rs. 11/- on account of damages for use and occupation. The validity of the notice to quit was not challenged in the court below. The Lower Appellate Court, therefore, maintained the decree for possession and reduced the decretal amount from Rs. 59/- to Rs. 31/-.

6. Against the above decree the defendant has come up in appeal in second appeal before me. Only two contentions have been raised before me. The first contention raised before me was that the defendant by a notice dated 17-3-1964 offered Rs. III/- by money-order to the plaintiff in full satisfaction of his claim, and since the plaintiff accepted this amount without any protest, he is estopped or debarred from claiming any further amount on account of arrears of rent. The second contention raised before me was that the notice of ejectment was not valid.

7. The learned counsel for the respondent raised a preliminary objection that none of these point

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