- (1.) HEARD Mr. Sharad Kumar Srivastava, learned counsel for the petition­ers and Mr.Hari Prasad Srivastava, learned counsel for opposite party No.3. The petition­ers have challenged the judgment and order dated 18.3.1998 passed in S.C.C. Suit No. 13/95, whereby the opposite party No.3-plaintiff's suit for ejectment has been decreed as also the order dated 10.4.2000 passed by the Additional District Judge, VIth, Kheri i.e. opposite party No. 1 in S.C.C. Revision No. 8/1981, whereby the revision has been dis­missed upholding the order passed by the Small Cause Court.
(2.) OPPOSITE party No.3-plaintiff filed a suit for ejectment on the ground that the house in question was taken in rent by the defendant-petitioner at the rate of 500/- per month on 10.7.1989 for a period of five years under lease agreement which expired on 9.7.1994. On expiry of term of lease the plaintiff asked the defendants to vacate the house in ques­tion, but when they did not vacate the same, the plaintiff sent registered notice to the de­fendants on 10.1.95 and 11.1.1995 for eject­ment. The defendants did not reply of the same. They contested the suit on the ground that even after expiry of period of lease, the lease continues month to month as the plain­tiff accepted the rent thereafter also and once the plaintiff accepted the rent after termina­tion of period of lease, the lease can be said to be month to month lease, accordingly, the notice for ejectment itself becomes meaning­less and ineffective. The trial court framed several issues and decreed the suit in the light of the decision of this Court rendered in the case of AIR 1972 (All) 435 (V 59 C 119), Lucknow Bench, Smt. Sharda Sharma v. Smt. Gulab Devi Dhwon, in which it has been held that the tenant has to prove that landlord by accepting the rent for the period subsequent to the termination of tenancy had an inten­tion to treat the lease as subsisting. Since in the present case, the plaintiff has categorically stated that he does not want to let out the house in question further as he has personal requirement of that portion of house, in such effect the notice of ejectment survives and it can be given effect to. The revisional court has held that the defendants failed to show the intention of the plaintiff to continue the tenancy as against the terms and conditions contained in the written agreement dated 10.7.1989 which is on record. In the absence of any intention on the part of the landlord being proved mere acceptance of amount tendered by the tenant during pen­dency of the suit for ejectment against him does not amount to waiver. Since in the present case there is no intention on behalf of the plaintiff to continue the tenancy and the period of tenancy has already expired as per agreement, the revisional court has held that the trial court has rightly decreed the suit for ejectment. In support of his contentions the learned counsel for the petitioners has placed reliance on the following case laws:- AIR 1998 Allahabad 235 : (1998 All LJ 1395) Central Bank of India v. Manohar lal and others, in which it has been held that "af­ter expiry of five years period contemplated in the original lease, the lease was subse­quently renewed on the request to the tenant but at the same time the landlord accepted the rent from the tenant and tenant's continu­ing possession was consented by the landlord. Under these circumstances, within the mean­ing of Section 106 of the Transfer of Prop­erty Act status of the revisionist will be a ten­ant by holding over." AIR 1994 All 2221 : (1994 All LJ 970) Punjab National Bank v. Ganga Narain Kapoor, in which it has been held that " the lease being month to month in view of the provisions of section 106 of the Transfer of Property Act could validly be terminated by a notice of 30 days on either side."
(3.) HE further submits that in the aforesaid cases it has been held that the notice of eject­ment shows intention of land-lord that he does not want to keep the defendant as tenant and he determines the tenancy to handover the va­cant possession. AIR 1966 All 623 Ram Dayal v. Jwala Prasad, in which the question for determina­tion was whether the acceptance of rent for a period subsequent to the notice to quit dur­ing the pendency of the suit would not amount to such a conduct on the part of the plaintiff so as to result in the waiver of the notice to quit. In this case, this Court has held that ac­ceptance of the rent for the period subsequent to notice to quit during the pendency of the suit, that is after the institution of the suit, can be treated on a different footing than the acceptance of such rent prior to the institu­tion of the suit. ;