JUDGMENT :

[Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 29.09.2004 made in A.S.No.166 of 2004 on the file of the Principal District Court, Tiruchirappalli reversing the judgment and decree dated 13.10.2003 made in O.S.No.198 of 1995 on the file of the II-Additional District Munsif's Court, Tiruchirappalli.]

1.1. Defendants 2 and 3 are the appellants. The respondent herein filed a suit for recovery of possession and also for arrears of rent against the appellants. The suit was dismissed by the trial Court and on appeal filed by the respondent, the judgment of the trial Court was reversed and the suit was decreed. Aggrieved by the same, defendants 2 and 3 are before this Court.

1.2. The respondent is the Idol of Sri Jambukeswarar Akilandeswari Devasthanam, represented by its Executive Officer. As per the plaint averment, the respondent/Idol is the absolute owner of the suit property and the appellants are the tenants. The tenancy is oral and as per the understanding, the first defendant (the suit was originally filed against the deceased first defendant and pending suit he died, the appellants his legal representatives were brought on record as defendants 2 and 3) has to pay monthly rent of Rs.325/- on or before fifth of every succeeding month. The first appellant had committed default in payment of rent from August, 1992 and on the date of presentation of the suit, there was an arrear of Rs.9,050/-. It was further stated that in spite of several demands made by the respondent/temple, the first defendant failed to pay the rent.

1.3. It was further averred that the suit property is situated at the Thousand Pillared Mandapam of the temple and the respondent required the same for up-keeping the Mandapam in a clean manner. The notice to quit was issued to the first defendant on 17.07.1994 terminating the tenancy with effect from the end of tenancy month of August, 1994. Though the deceased first defendant received the notice, he had not cared to send any reply. Therefore, the respondent was constrained to file the above suit.

2. The appellants filed a written statement and admitted the title of the respondent/temple and the tenancy arrangement. According to the appellants, they were very regular in payment of the rent and they claimed that the rent was paid up to 31.01.1995. It was further averred that after issuance of notice to quit, the appellants approached the respondent/temple officials and they informed them that notice was wrongly issued and thereafter, received rent to the tune of Rs.4,100/- and thereby waived the notice to quit dated 17.07.1994. Therefore, the appellants mainly sought for dismissal of the suit on the ground of waiver of notice to quit.

3. Before the trial Court, an employee of the respondent/temple was examined as P.W.1 and two documents were marked on behalf of the respondent/temple viz., the notice to quit and the acknowledgement card sent by the deceased first defendant as Ex.A.1 and Ex.A.2 respectively. On behalf of the appellants, the second appellant was examined as D.W.1 and nine documents were marked on their side as Ex.B.1 to Ex.B.9.

4. The trial Court, on appreciation of oral and documentary evidences available on record, came to the conclusion that accepting the rent paid by the tenants subsequent to the notice to quit would amount to waiver of the earlier notice under Section 106 of the Transfer of Property Act, 1882. Therefore, the trial Court dismissed the suit. Aggrieved by the same, the respondent filed an appeal in A.S.No.166 of 2004 on the file of the Principal District Court, Tiruchirappalli. The first appellate Court came to the conclusion that mere receipt of rent after issuance of notice and filing of suit for ejectment would not amount to waiver of notice, unless such acceptance of rent is accompanied by intention to continue the tenancy and consequently, set aside the judgment and decree passed by the trial Court and allowed th