Gyanendra Kumar, J. - (1.) THIS second appeal has been filed by Defendants. The first Appellant, Panna Lal, is tenant -in -chief of the premises in suit, while the second Appellant is his son. The remaining Appellants are subtenants of the first Appellant. Previously Kedar Nath, father of the Plaintiff was the landlord. It is alleged that by a registered family arrangement made in 1960 -61, the house in suit was allotted to his minor son, Gyaneshwar Nath Gupta, Plaintiff Respondent. Nevertheless Kedar Nath continued to remain his guardian and the present suit was also filed by the Plaintiff on 24 -2 -1967, under the guardianship of his father Kedar Nath, who was also examined as a witness for the Plaintiff on 24 -9 -1967. Kedar Nath, however, died during the pendency of the suit some time before 6 -5 -1968.
(2.) THE first and second Appellants carry on business in a portion of the disputed house. The concurrent finding of fact recorded by the two Courts below is that the first Appellant had sublet the remaining portion of the house in suit to Appellants Nos. 3 to 5 separately without the consent of the landlord. It is the admitted case of the parties that as far back as 26 -2 -1958 the then landlord Kedar Nath served a notice of termination of tenancy of the first Appellant on account of his alleged sub -letting of different portions of the house. This notice was not followed by a suit. On the other hand, on 6 -10 -1958 Kedar Nath served a second notice on the first Appellant with the same allegations. It was duly replied to by the first Appellant on 7 -11 -1958 saying that he had sub -let the premises with the consent of the landlord. Again no suit for ejectment of the tenant and his sub -tenants was filed. On 12 -11 -1959, Kedar Nath sent a third notice to the tenant -in -chief demanding Rs. 1216.31P as arrears of rent within one month. The first Appellant thereupon remitted the amount by money order and on refusal, he deposited the same in the Court of the Munsif West, Allahabad, Under Section 7 -C of the UP (Temp.) Control of Rent and Eviction Act. This amount was later on withdrawn by the landlord. On 19 -9 -1961 Kedar Nath sent a fourth notice, again on the allegation of illegal sub -letting, which was repudiated by the tenant -in -chief by his reply dated 4 -10 -1961. The landlord again kept quiet and started accepting rent. The present Plaintiff Gyaneshwar Nath sent a fifth notice dated 4 -1 -1966 through his laywer terminating the tenancy on the very same allegations that Panna Lal had illegally sub let various portions of the house in question. The notice specifically mentioned that the monthly rent of the house in suit was Rs. 110/ -. The notice required the Defendants to vacate and deliver possession of the house to the Plaintiff on the expiry of one month from the date of receipt of the notice failing which the Plaintiff shall be compelled "to file suit for ejectment and damages calculated at the rate of Rs. 10/ - per day". From the contents of the Plaintiff's notice it is abundantly clear that he knew the difference between 'rent and damages'. He also realised that the rent was only Rs. 110/ - per month while the damages demanded for the use and occupation of the house would come to Rs. 300/ - per month (at the rate of Rs. 10/ - per day).
(3.) ON 13 -1 -1966 the first Appellant (Panna Lal) sent a reply repudiating the Plaintiff's allegation of illegal sub -letting. It is noteworthy that in -spite of the service of the aforesaid notice of termination of tenancy, the Plaintiff accepted 'rent' from the first Appellant month after month (commencing Paush Sudi 15 to Magh Sudi 14 Samvat 2023) at the rate of Rs. 110/ - per month and granted 13 receipts to Panna Lal, in each one of which it was specifically written that it was 'kiraya' (rent) for such and such month.;