JUDGMENT :- This is defendant's appeal which arises out of a suit for ejectment and arrears of rent filed against her by the plaintiff-respondent. The suit was decreed by the trial Court. An appeal filed against that decree by the defendant-appellant was dismissed by the Additional District Judge. The defendant has now approached this Court by filing this second appeal.

2. I heard the learned counsel for the parties. Sri D.S. Bajpai, learned counsel for the appellant, pressed four points in this appeal. Firstly, he contended that it had not been satisfactorily proved that the house in suit had been let out to the defendant-appellant by the plaintiff-respondent. On the other hand, it had been proved that the same had been let out to her by the plaintiff's husband Dr. H.M. Dhaon. This was purely a question of fact. Both the Courts below, on an appraisal of the evidence, have come to the conclusion that the house belonged to the plaintiff-respondent and it had been let out by her to the defendant-appellant. This finding of fact cannot be assailed in this second appeal. I may simply note that though it was admitted by the defendant that she used to receive receipts for payment of rent not a single receipt was filed by her to show that Dr. Dhaon had on anyone of those receipts described himself as the landlord.

3. The next point that was urged by the learned counsel for the appellant was that the trial Court did not frame an issue about estoppel, and even when an application was made by the defendant to frame this issue and record a finding on it her application was wrongly rejected and this has materially prejudiced the defendant-appellant. An issue could be framed on this point only if a plea to this effect had been taken by the defendant in her written statement. Even if the expression 'estoppel' had not been clearly used in the written statement, at least the facts on which this plea was sought to be based must have been stated in the pleadings. A perusal of the written statement however shows that no such facts had been stated by the defendant. Even in that application in which a request was made to frame an issue on this point, no facts had been stated on the basis of which a plea of estoppel could be founded. The learned counsel for the appellant was unable to refer to any material on record on which this plea could be founded. There is no allegation that the plaintiff had made any misrepresentation to the defendant and that the defendant acting on that misrepresentation had changed her position to her disadvantage which she would not have otherwise done but for this misrepresentation. Under these circumstances, there was no occasion to frame an issue about estoppel and record any finding on it.

4. The third point that was argued by the learned counsel for the appellant was that the Courts below have found that during the pendency of the suit the defendant paid Rs.2500/- to the plaintiff by means of several cheques. The defendant had alleged that these cheques had been passed on by her towards payment of rent for the period after the notice to quit. It is argued that in view of this statement of the defendant it should have been held by the Courts below that there was a waiver of notice to quit under Section 113 of the Transfer of Property Act even though the landlord had accepted these cheques towards payment of damages for use and occupation as found by the Courts below. In support of this contention he relies on a Full Bench decision of Patna High Court in Chotu Mia v. Mt. Sundari, AIR 1945 Pat 260 (FB). That decision is clearly distinguishable and it cannot apply to the facts of the present case for more than one reason. That was a case under Section 112 of waiver of forfeiture occasioned under Section 111(g) of the Transfer of Property Act and not a waiver of notice to quit under Section 113. That there is a difference between these two types of waiver has been clearly laid down by this Court in Permanand v. L. Murari Lal.

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