JUDGMENT :- This is an appeal by the defendant. Plaintiff's suit for the ejectment of the defendant and for recovery of mesne profits was decreed by both the courts. The only question raised in this appeal is one of waiver of notice to quit.

2. Learned counsel for the appellant urged that the plaintiff by accepting rent for a period after the determination of tenancy had impliedly waived the notice to quit. The notice to determine the tenancy was served on the 1st February. 1967. The tenancy was to stand determined from the 1st March, 1967. The defendant had sent a money order in the sum of Rs. 5.50 to the plaintiff on the 15th February, 1967 which was accepted by the defendant. It was urged that this sum represented the rent for the month of March, 1967. It may also be relevant to mention that the suit was filed on the basis of permission granted by the Commissioner and the suit was filed by the plaintiff on 10th of March, 1967.

3. The contention of the learned counsel for the respondent was that there was no waiver. No rent was accepted after the determination of the tenancy and there was no intention to waive the notice for soon after the tenancy stood determined the suit for the eviction of the defendant was filed. A plea was taken by the defendant, though unsuccessfully, that the words rent for March were subsequently interpolated in the money order receipt and it was not there when it was sent. Evidence was led to show that the defendant had remitted the rent of four months November, December, January and February, earlier.

4. In support of the rival cases, certain decisions of this Court and of the Supreme Court were cited. Learned counsel for the appellant cited the case of Ram Dayal v. Jawala Prasad. (AIR 1966 All 623) decided by a single Judge of this Court. In this case it was observed : ''Once, it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff it is that circumstance alone which has to be taken into consideration for finding out whether in so accepting the rent the plaintiff intended that the relationship of the landlord and tenant subsisted between the parties. It was immaterial that the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy.

5. The next case cited was Mangal Sen v. Smt. Krishna Devi, (1970 All LJ 803). In this case it was held that, "if a lessor accepts as rent the amount tendered by the lessee it indicates an intention on the part of the lessor to waive the notice. Such an act on the part of the parties to the lease shows an intention to treat the lease as subsisting which impliedly means that the notice under Section 111(h) of the Act stands waived." The Division Bench approved the reasoning given in the case of AIR 1966 All 623 on the point of there being a waiver if the rent was accepted even after the institution of the suit. We are not concerned with that question in the present case. The question before the Division Bench was answered in the following words :

"In our view a lessor has an unfettered right under Section 113 of the Act to waive the notice given by him under Section 111(h) of the Transfer of Property Act if the lessee expressly or impliedly consents to continue the lease and this right is not taken away by the institution of a suit to eject the lessee."

6. Learned counsel for the respondent also placed reliance for certain observations appearing in the above case of 1970 All LJ 803. The observations are significant and have to be taken into consideration in determining whether the act of acceptance of rent after the determination of tenancy in every case amounts to a waiver. The Division Bench observed in paragraph 3 as follows :

"It will, however, always be a mixed question of fact and law as to whether in the circumstances of a particular cage, the tender of the amount was by way of rent and its acceptance by the lessor was also as rent sho