Andhra HC (Pre-Telangana)
Ravula Rama Krishna vs Shaik Mahboob Basha on 20 August, 1996
Equivalent citations: 1996(4)ALT33, 1997 A I H C 1098, (1997) 1 ICC 57, (1996) 4 ANDH LT 33, (1997) 2 RENCR 71, (1996) 2 RENTLR 624, (1996) 4 ANDHLD 259
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
JUDGMENT R. Bayapu Reddy, J.
1. The appellant in this second appeal is the defendant in O.S. No. 154 of 1985 on the file of the District Munsif Court, Ramachandrapuram, while the respondent herein is the plaintiff in that suit.
2. The defendant had taken the suit house on lease in the year 1984 from the then owners of the house viz., K. Nageswara Rao and K. Bheemasankara Rao, on a monthly rent of Rs. 650/- and he was running his business in that house. He also paid an amount of Rs. 5,000/- to the owners by way of advance and it was agreed that such amount should be returned to him by the owners at the time when he vacates the house. Subsequently, the plaintiff purchased the said house under Exs.A-1 & A-2 registered sale deeds, dated 16-10-1984 from the owners and at the time of such purchase the vendors placed the amount of Rs. 5,000/- which was originally paid as advance to them by the defendant, at the disposal of the plaintiff to be returned to the defendant as and when he vacates the house. The defendant later on issued Ex. A -3 notice, dated 5-11-1984 to the plaintiff raising the plea that the lease obtained by him from the original owners was to ensure for a period of 3 1/2 years and that the plaintiff may adjust the rent at the rate of Rs. 200/- p.m. from out of the advance amount lying with him. The plaintiff then got issued Ex.A-4 reply dated 11-11-1984 through his advocate specifically contending that the lease was not given for any such specified period of 3'/2 years and it was only a month to month lease and that the defendant was liable to pay the agreed rent of Rs. 650/- per month without deducting any amount and the advance amount of Rs. 5,000/- can be returned to him when he vacates the premises. It was further stated in that notice that the plaintiff was not willing to allow the defendant to continue as tenant and he was directed to vacate the building by the end of January, 1985. Thereupon, the defendant issued Ex.A~5 notice through his advocate contending that he was willing to pay the rent at Rs. 650/-per month and that he cannot be directed to vacate the premises. Thereupon, the plaintiff filed the suit O.S.No. 154 of 1985 seeking eviction of the defendant from the premises.
3. The defendant contested the suit raising various pleas and mainly contending that the premises were originally taken on lease for a specified period of 3 1/2 years from 16-5-1984 onwards and it was not a month to month tenancy and as such the plain tiff was not entitled to seek his eviction even before the expiry of the said lease period; that there was no statutory notice issued under Section 106 of Transfer of Property Act, validly terminating the tenancy; that the plaintiff has also waived his right to seek his eviction by accepting rents subsequent to the expiry of the period mentioned in the notice and that the suit was, therefore, not maintainable and liable to be dismissed.
4. The lower Court, however, found that the tenancy was not for any specified period of 31 /2 years as contended by the defendant; that it was only a month to month tenancy terminable by issuing the required notice; that Ex.A-4 notice issued by the plaintiff is a valid quit notice as contemplated under Section 106 of Transfer of Property Act and that the defendant is liable to vacate the premises.
5. The defendant filed A.S. No. 5 of 1992 on the file of the Subordinate Judge, Ramachandrapuram, questioning the above said findings given and the decree and Judgment passed by the lower Court and the said appeal was, however, dismissed by the decree and Judgment dated 23-11-1994 thereby confirming the lower Court's decree having agreed with all the findings given by the lower Court. The present second appeal is filed by the defendant questioning the said decree and Judgment of the first appellate Court contending that the lower appellate Court has erred in confirming the findings of the trial Court regarding the validity of quit notice issued by the plaintiff in Ex. A-4; that such notice is not valid and legal and that a substantial question of law therefore, arises in the present appeal regarding the validity of such notice and the right of the plaintiff to seek eviction on the basis of such notice.
6. The point that arises for consideration in the present appeal is whether Ex.A-4 notice, dated 11-11-1984 issued by the plaintiff determining the lease is valid and is in conformity with the provisions of Section 106 of Transfer of Property Ac! and whether the respondent/plaintiff is entitled to seek eviction of the defendant from the suit house on the basis of such notice?
7. The first contention of the learned Counsel for the appellant/defendant regarding the right of the plaintiff to seek his eviction is that he had taken the suit house from the original owners for a specified period of 3 1/2 years from 16-5-1984; that Ex.A-4 notice was, however, issued on 11-11-1984 itself giving time till the end of January, 1985 for vacating the premises and that such notice is, therefore, not valid and legal inasmuch as the specified period of lease had not yet expired. The contention of the plaintiff in this regard is that the original lease was not granted for any such specified period of 3 1/2 years as contended by the defendant; that the tenancy was only from month to month at the rate of Rs. 650/- per month towards rent and that the tenancy was, therefore, terminable by treating it as a month to month tenancy and Ex.A-4 notice was, therefore, validly given terminating such tenancy by granting time till the end of January, 1985. Both the trial Court as well as the first appellate Court have considered the evidence adduced on this aspect and rightly came to the conclusion that the defendant utterly failed to prove that the tenancy was for any specified period of 3 1/2 years and that the tenancy was only month to month tenancy terminable by issuing 15 days notice expiring with the end of the month of the tenancy as contemplated under Section 106 of Transfer of Property Act. The question whether there was lease for any specified period of 3 1/2 years as contended by the defendant, is clearly a question of fact and the trial Court as well as the first appellate Court have given a concurrent finding after giving valid reasons to the effect that the lease was not for any specified period of 3 1/2 years and that it was only a month to month tenancy, and there are no valid reasons to interfere with such findings of the lower Courts. The learned Counsel for the appellant, however, tried to contend that the first appellate Court has drawn an incorrect and perverse inference on the basis of the evidence adduced in the suit and came to an erroneous conclusion regarding the period of lease and that in view of such erroneous inference a substantial question of law can be said to have arisen in the present appeal. But such contention that the lower Courts have drawn an erroneous and perverse inference on the basis of the evidence adduced in the suit, is without substance and cannot be accepted.
8. The appellant tries to contend that the respondent who is the plaintiff and who has filed the suit, must stand or fall on the strength or weakness of his case; that having filed the suit with the contention that the tenancy is month to month and not for the specified period of 3 1/2 years, the burden is upon him to establish such contention and that the lower Courts have erred in disbelieving the version of the appellant by throwing the burden of proof upon him. He has also tried to contend that the lower Courts have failed to consider the preponderence of probabilities of the case while appreciating the evidence, such as payment of Rs. 5,000 / - as advance even though the rent was at the rate of Rs. 650/- per month, the nature of business carried on by him in the premises, and that the lower Courts are, therefore, not justified in rejecting the contention of the appellant and holding that the tenancy is a month to monut tenancy. There is no substance in such contention and absolutely no perversity or error on the part of the lower Courts in coming to the conclusion on the basis of the evidence that the tenancy is only month to month tenancy and that the burden of establishing that the tenancy is for the specified period of 3 1/2 years is upon the appellant and he utterly failed to discharge that burden. It is an admitted fact that there was no written lease deed between the appellant and the original owners of the premises from whom he had obtained the same on lease. When once he comes up with the plea that the lease was for a specified period, it is for him to establish such contention and it is not for the respondent/plaintiff to disprove such contention especially in view of the provisions of Section 106 of the Transfer of Property Act. There is not even a whisper in the evidence of appellant who is examined as D.W.I, that the original owners of the premises from whom he had obtained the same on lease are ill-disposed or inimical towards him. In such a case, there is no reason as to why the appellant was not able to examine his land lords as witnesses on his behalf to prove his contention, nor is there any reason as to why no other evidence could be produced by him in support of his contention. The provisions of Section 106 of Transfer of Property Act which are extracted by the first appellate Court while discussing the evidence in point No. 1, clearly reveal that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of either lessor or lessee by six months notice expiring with the end of a year of the tenancy and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of a month of the tenancy. It cannot be said for a moment that the appellant has been able to establish that there is any local law or usage to show that such tenancy obtained by him is a tenancy from year to year. As already stated above, there was also no written contract evidencing that the lease was granted for any specific period. Under such circumstances, the presumption under Section 106 has to be given effect to and it is not open to the appellant to plead that the lease of the house which is not for agricultural or manufacturing purposes, is a lease from year to year. Therefore, in view of all such circumstances and the evidence placed on record, both the lower Courts rightly came to the conclusion that the lease was not for any specified period as contended by the appellant and that it was only a month to month tenancy terminable by 15 days notice expiring with the end of a month of the tenancy.
9. The learned Counsel for the appellant has tried to rely upon the decision of the Supreme Court reported in Chaturbhuj Pande v. Collector, Raigarh, and tried to contend that in assessing the value of the evidence, the Judges are bound to call in aid their experience of life and test the evidence on the basis of probabilities, and that in the present case, the lower Court have failed to perform such duties. But as already stated above, there are no such probabilities, as contended by the learned Counsel for the appellant, showing that the lease of a premises of the present nature will always be a lease from year to year, and in the absence of a written contract of lease and in the absence of any evidence adduced on behalf of fine appellant, the lower Courts are quite justified in rejecting such contention of the appellant and in coming to the conclusion that the tenancy was only a month to month tenancy and there are absolutely no valid reasons to interfere with such findings of the lower Courts. He has also tried to rely upon the decision of this Court reported in Mohammed Ali v. Mirza Qatnan Ali Baig, 1975(2) APLJ 9 (NRC), wherein it is observed that after the expiry of the original lease which was for a period of eleven months, it became a lease for month to month and under Section 106 of the Transfer of Property Act the landlord should give 15 days notice expiring with the end of a month of the tenancy. He has also tried to rely upon the decision of the Supreme Court reported in Dattonpant v. Vithalrao, , in which case also the lessee was considered as a tenant holding over and wherein also it was observed that such tenancy has to be considered as a month to month tenancy terminable by a valid notice to quit. The above said decisions have absolutely no bearing to the facts of the present case inasmuch as it is now established that the original lease was not for any specified period and it was only a month to month tenancy and it is terminable by a valid notice to quit. Therefore, the lower Courts have rightly come to the conclusion that the tenancy is only a month to month tenancy and not a tenancy for any specified period of 3 1/2 years as contended by the appellant.
10. The learned Counsel for the appellant has tried to raise various contentions to question the validity and binding nature of Ex.A-4 notice which is considered as a quit notice under Section 106 of the Transfer of Property Act by the respondent, and tries to contend that the said notice is invalid and cannot have the effect of terminating the tenancy which is considered as a month to month tenancy and as such the respondent is not entitled to seek his eviction. The first contention raised by him in this regard is that Ex.A-4 is only a composite notice mainly sought to be issued for the purpose of recovery of arrears of rent and not for terminating the tenancy; that such notice in which the respondent has chosen to make different demands, cannot be considered as a valid quit notice under Section 106 of the Transfer of Property Act and as such the said notice is to be ignored. But such contention was rightly negatived by the Courts below. The appellant first got issued Ex.A-3 notice dated 5-11-1984 informing the respondent that his tenancy was for a specified period of 3 1/2 years' and that the advance amount of Rs. 5,000/- paid by him to the original owners may be adjusted towards rent at the rate of Rs. 200/- p.m. and the balance amount may be recovered as rent every month. The respondent then got issued Ex.A-4 reply notice dated 11-11-1984 through his advocate specifically stating that the appellant was given three months time for vacating the premises and that if he fails to deliver the premises by the end of January, 1985 and then receive back the advance amount of Rs. 5,000/- from him, he will proceed against the appellant for eviction according to law. He also specifically stated in Para- 5 of the reply notice that the said notice may be treated both as a reply to Ex.A-3 and also as an independent notice demanding eviction. It is, no doubt, true that a request for payment of rent is also there in Ex.A-4. But that does not take away the character of a quit notice as contemplated under Section 106 of the Transfer of Property Act in view of the specific averments made in that notice, requiring the appellant to vacate the premises by the end of January, 1985 and also threatening him with eviction in case he fails to do so. Under such circumstances, the lower Courts rightly treated Ex.A-4 as a valid quit notice by which the tenancy of the appellant was determined. The lower Courts relied upon the decision reported in Suraj Prasad v. Kusumalata, AIR 1973 Allahabad l98. In that case also the notice in question was a composite notice demanding arrears of rent and also for eviction of the tenant. It was observed by the Court in that decision that the notice is to be read as a whole and when it is mentioned in the notice in clear and unequivocal terms that the landlord asked the tenant to vacate the house, such notice has to be considered a valid notice to quit even though it contained the other demand for payment of rent. The same view was expressed on similar facts by the same High Court of Allahabad in an earlier decision reported in Ahmad Ali v. Jamal Uddin, . wherein it was observed that the notice terminating the tenancy and demanding arrears of rent is not invalid on the ground that it contained two demands and that a legal notice to quit does not become illegal as it contained some superfluous matter. Therefore, there is no substance in the contention of the learned Counsel for the appellant that Ex.A-4 cannot be considered as a valid notice to quit as a demand for arrears of rent was also made in that notice.
11. He has next tried to contend that Ex.A-4 notice is not a valid quit notice as contemplated under Section 1.06 of the Transfer of Property Act as it is not specifically mentioned therein that the lease was being terminated by the end of January, 1985and that it was merely alleged in that notice that the tenant-shall vacate the premises and such mere demand to vacate is not sufficient to fulfill the requirements of Section 106 of the Act. He has also tried to rely upon the above said decision of Allahabad High Court reported in Ahmad Ali v. Jamal Uddin, . in this regard. It is observed in that decision that a notice terminating the tenancy may include a demand for possession, but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. It is seen from a perusal of the observations in Para-3 of the said decision that it is specifically mentioned therein that where it is clear from the notice that the landlord did not intend to terminate the tenancy on the date on which he gave notice, the mere fact that the notice also required the tenant to deliver possession at the end of 30 days would not mean that the tenancy was terminated on the date of the notice. In the present case, the intention of the respondent was made clear in Ex.A-4 that he requires the appellant to vacate the premises by the end of January, 1985 and that in case he fails to do so, necessary legal action will be taken against him. In view of such specific intention which is made clear by the respondent, Ex.A-4 notice is to be considered as a valid notice to quit even though the specific words of termination of the tenancy were not used in that notice. It will be useful in this connection to refer to the observations made in another decision of the Allahabad High Court reported in Sushila Devi v. Manohar Lal, AIR 1985Allahabad 178.. It is observed therein that if an intention of terminating the tenancy can be clearly discerned by construing the words used in the notice as a whole, the mere fact that the expression that the tenancy was being terminated is not used, would not render the notice invalid, In the said case also, as in the present case, it was mentioned in the notice that the tenant should vacate the shop and put the landlord in possession of the property on the expiry of the particular period of tenancy, and it was sought to be contended by the tenant that the notice was not a valid notice to quit as there was no specific mention about the termination of the tenancy by using such words. After referring to the various earlier decisions of the same Court including the Division Bench decision reported in Abdul Jaleel v. Haji Abdul Jaleel, . the decision reported in Budh Sen v. Rahiman, . and the decision of the Patna High Court reported in Mohammad Idris Mian v. Doman Sah, AIR 1978 Patna 82. it is observed by His Lordship that a notice to quit need not be worded with the accuracy of quit and that if the intention to terminate the tenancy is clearly made out, such notice is a valid notice to quit. The observations of the Supreme Court in the decision reported in Bhagabandas v. Bhagawandas, . make the point clear in this regard. In that case also it was mentioned in the quit notice that the tenant shall vacate the house and deliver possession to the landlord within the specified period and that in case of such failure, the tenant will be treated as a trespasser from the specified date. The specific terminology of terminating the tenancy was not used in that particular case also. In those circumstances, it is observed by their Lordships in Para-3 of the Judgment:
"Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed res magis valent quatn pereat, "The validity of a notice to quit", as pointed out by Lord Justice L indley, L.J. In Sidebotham v. Holland (1895) 1Qb378, "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way."
In view of the fact that the tenant in that case also was specifically required to vacate the premises and in view of the fact that he was also to be treated as a trespasser in case he fails to vacate, it was observed by their Lordships that the notice was a va\lid notice to quit as the intention of the Landlord was made clear in that notice that he contemplated determination of the tenancy by the specified date. Therefore, the lower Courts rightly treated Ex.A-4 notice as a valid quit notice ascontemplated under Section 106 of the Transfer of Property Act under which the respondent chose to terminate the tenancy by the end of January, 1985, and it cannot be considered as invalid on the ground that the specific terminology required to terminate the tenancy was not used in the notice.
12. The learned Counsel for the appellant has next tried to attack the validity of Ex.A-4 quit notice contending that it was not personally served upon the appellant who is the tenant, as contemplated under Section 106 of the Transfer of Property Act; that it was issued only as a reply to Ex.A-3 notice and was served only on the advocate for the appellant and that such service is not a valid service and such notice is, therefore, invalid and cannot have the effect of terminating the tenancy. But, this contention is also without substance. Both the lower Courts have discussed this aspect with reference to such contention of the appellant in detail and rightly negatived the same in view of the provisions of Section 106 of the Transfer of Property Act as well as the observations made by various High Courts on such aspect. Section 106 of the Transfer of Property Act specifically provides that in the case of a lease from month to month it is terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of a month of the tenancy and every such notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally 5 to such party or to one of his family members or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. It is clear from such provisions of Section 106 and the language used in it that personal service of the notice on the tenant is not indispensable or mandatory and that where it is not possible to serve such notice personally on 10 the party who is intended to be bound by it, it is permissible to serve such notice on one of his family members or even on servants at his residence and also by affixture to a conspicuous part of the property and such mode of service is also valid and authorised by law. In enacting such provisions, it is clear that the intention of the landlord must be to specifically bring the quit notice to the 15 notice of the tenant either by persona1 service or by some other acceptable mode of service when personal service is not possible. In the present case, when Ex.A-3 notice was issued by the appellant through his advocate to the respondent, the respondent got issued Ex.A-4 reply through his advocate to the advocate of the appellant specifically demanding payment of arrears of rent as 20 well as eviction of the appellant from the premises. It is also clear from Ex.A-5 rejoinder issued on behalf of the appellant by his advocate that Ex.A-4, a copy of which, was also marked to the appellant, was in fact, taken to the notice of the appellant who was evidently informed about it by his advocate. Therefore, the purpose and object as contemplated under Section 106 of the Transfer of 25 Property Act that the quit notice as contemplated should be taken to the notice of the tenant, is achieved and as such, it is not open to the appellant to contend that Ex.A-4 quit notice is not a valid notice as it was addressed only to his advocate. In the decision of the Bombay High Court reported in Sohansingh v. Narhar, . a similar situation arose where the validity of the quit notice which was 30 addressed to the advocate of the party was questioned on the ground that it was not addressed to the party. It was observed in that decision that such notice addressed to the lawyer is not invalid where such lawyer is not shown to have (no) authority to receive the same. In the present case the lawyer who got issued Ex.A-3 on behalf of the appellant had authority to receive the reply from the 35 respondent and Ex.A-4 was issued by the respondent through his advocate to the advocate of the appellant who also subsequently issued Ex.A-5 rejoinder on behalf of the appellant. Therefore, the advocate for the appellant was having sufficient authority to receive such notice on behalf of the appellant and as such Ex.A-4 cannot be said to be invalid on the ground that it was not personally 40 served on the appellant. It is no doubt, true that it was observed in the said decision that a copy of the notice addressed to the lawyer was also addressed to and served on the party also besides service on the advocate. In the present case it is mentioned in Ex.A-4 notice that a copy of the notice was also marked to the appellant though there is no evidence to show that such copy was in fact served on him eventhough it was served on his advocate. But, such circumstance will not detract from thevalidity of Ex.A-4inasmuchas service on the advocate is to be considered as a valid service on the party as the advocate was having the authority to receive such notice on behalf of the appellant. The learned Counsel for the appellant has tried to contend that service of notice on the advocate who is only an agent of the party is not contemplated under Section 106; that what is required by the Section must be done in that manner and in no other manner; that the law requires personal service on the party and that service on the advocate cannot, therefore, be valid service. He has also tried to rely upon the decisions of the Supreme Court reported in S. T. Commissioner U.P. v. Parson Tools & Plants, Kanpur, . and Sri Mandir Site Ramji v. Governor of Delhi, . in support of such contention. But, these decisions cannot be said to be of any assistance for such contention inasmuch as Section 106 of the Transfer of Property Act itself contemplates, as already stated above, service of notice even on the other family members as well as the servants of the tenant and also service by affixture when personal service is found not possible. He has also tried to rely upon the decision of this Court reported in M. Satyanarayana v. S. Veerabhadra Swamy, 1983 (3) Alt 625. in support of his contention that Ex. A-4 notice was not validly served as specifically contemplated under Section 106 of the Transfer of Property Act. In the said case the quit notice was sent by telegram and it was not a notice in writing and signed by the landlord. Under such circumstances, it was observed by the Court that since the telegraphic notice sent to the tenant does not contain the signature of the landlord, it does not satisfy the requirements of Section 106 of the Transfer of Property Act, as the mode of service prescribed under the said Section does not contemplate such notice by telegram. But, such observations made with regard to the validity of the notice sent by telegram cannot be made applicable to the facts of the present case in which it is clearly found that service on the advocate will amount to service on the party. In view of all these circumstances, the lower Courts rightly negatived the contention of the appellant that Ex. A-4 is not a valid notice to quit as it was served only on the advocate of the appellant, and there are no valid reasons to interfere with such findings of the lower Courts.
13. The learned Counsel for the appellant also tries to attack the validity of Ex.A-4 notice on the ground that even though Section 106 of the Transfer of Property Act contemplates termination of the month to month tenancy by the end of the month of the tenancy, the respondent has chosen to terminate the tenancy by granting three months time and requiring the appellant to vacate the premises by the end of January, 1985 and that giving such time longer than the period contemplated under Section 106 of the Act vitiates the notice and makes it invalid and as such, the respondent cannot rely upon such notice to seek his eviction. But, this contention also did not find favour with both the Courts bellow and rightly so. A notice determining the lease can facilitate more time than the specified time of 15 days provided under the statute and such notice giving longer time cannot be said to be invalid. The lower Courts relied upon the decision of the Madhya Pradesh High Court reported in MotiLal v. Kailash Narain, . wherein also the same question arose for consideration regarding the validity of the quit notice when the facility of longer time was given co the tenant to vacate the premises. It was observed in that decision that if a notice gives atleast 15 days to the tenant and if it expires with the end of the month of the tenancy, it is a valid notice to determine the lease; that the period should not be less than 15 days and there is no outside limit and that the notice can be given several months before the date on which the landlord desires to determine the lease. In the present case also eventhough Ex.A-4 notice was issued on 11-11-1984, the appellant was directed to vacate the premises by the end of January, 1985 giving about three months time to leave the premises. Eventhough a minimum of 15 days ending with the end of the month of the tenancy is contemplated under Section 106 of the Transfer of Property Act, giving more time to the tenant than the specified period of 15 days, will not make the quit notice, which is otherwise valid, invalid on the ground that the facility of longer period is provided to the tenant. Therefore, such contention of the learned Counsel for the appellant cannot also be accepted.
14. It is also sought to be contended by the learned Counsel for the appellant that after giving Ex.A-4 notice determining the tenancy by the end of January, 1985, the respondent continued to receive rents thereby accepting the tenancy and that the appellant thereby became tenant holding over and his tenancy cannot be said to have been determined by Ex.A-4 notice and a fresh termination notice is required to be issued, and in the absence of such fresh notice, he cannot be evicted on the basis of Ex.A-4. But such contention also was rightly negatived by the lower Courts holding that, in view of the facts and circumstances of the case, the respondent cannot be said to have waived his right to evict the tenant on account of the fact that he received rents subsequent to the expiry of the specified period. Merely on account of the fact that the respondent received the rents, it cannot be said that he has waived his right to seek eviction of the appellant especially as the respondent received the rents without prejudice to his right to seek eviction. Even in Ex.A-4 notice it was speci fically stated that he would receive the rents without prejudice to his rights until the appellant vacates the premises. The appellant examined as D.W.I has also admitted during his evidence that the respondent received the rents without prejudice to his rights. Under such circumstances, the lower Courts rightly held that the respondent cannot be said to have waived his right to seek eviction of the appellant on account of the fact that he chose to receive the rents without prejudice to his right to seek eviction. The observations made in a recent division Bench decision of this Court reported in Golkonda Real Estatevs. Ch.S.R. Somayajulu, . also make it clear that when the landlord receives the rents without any reservations after issuing the quit notice, it will amount to waiving his rights to determine the tenancy and the tenant will have to be treated as a tenant holding over on account of such conduct on the part of the landlord inreceiving the rents. But, in the present case, the rents were received by the respondent without prejudice to his rights to seek eviction of the appellant and as such, the respondent cannot be said to have waived his right to seek eviction of the appellant on account of the fact that he received the rents. In the decision of this Court reported in P. lukshmanachandji v. V. V. S.R. Murthy,1976 (2) An. W.R. 110 also it was held that mere acceptance of rent by the landlord after notice to quit by itself does not constitute waiver and that there must be evidence to show the act of lessor to treat the lease as subsisting. Inasmuch as the rent was received by the respondent without prejudice to his right to seek eviction, he cannot be said to have waived his right to seek s,uch eviction of the appellant. In view of all these circumstances, the lower Court rightly held that Ex. A-4 is a valid notice to quit satisfying all the requirements of Section 106of the Transfer of Property Act and that, therefore, the respondent is entitled to seek eviction of the appellant from the premises. There are absolutely no valid reasons to interfere with such findings given and the decree and Judgment passed by the lower Court directing the appellant to vacate the premises and as such, there are no merits in the present appeal which is liable to be dismissed.
15. In the result, the appeal is dismissed with costs of the respondent.