1. This judgment shall also dispose of the connected appeals Nos. 271 to 274 of 1951, 692 of 1951 ana 159 of 1952. These appeals have been filed by the defendants against the decrees for possession and damages for use and occupation.
2. The defendants are holders of the shop in the Golbazar of Raipur, belonging to the plaintiff-respondent: Municipal Committee. The Courts below have negatived the contention of the defendants that they held the sites under a licence which became irrevocable on account of their constructing permanent structures thereon in pursuance of the licence. They held that the defendants were tenants from month to month and their tenancy was terminated by a valid notice. They negatived the allegation of the defendants in the appeals except appeal No. 692 of 1951, that the notice terminating the tenancy was waived by the Municipal Committee. In the end, they decreed the claim of the Committee for ejectment and for damages for use and occupation against all the defendants.
3. In appeal No. 692 of 1951, the only point urged by the defendant was that the notice terminating the tenancy with the end of 31-12-1947 was not valid on the ground that the month of the tenancy was not according to Gregorian Calendar. The evidence of Ramlal (P.W. 2), on which the Courts below have relied, however, negative this contention. It was urged before me that the notice was invalid on the additional ground that it did not specify property the premises forming the subject-matter of the tenancy. No such ground was taken in the pleadings and accordingly this contention cannot be entertained. As no other defence was raised to the suit, the appeal is liable to be dismissed.
4. As regards the other appeals, it is only in the case of Taj Bi in appeal No. 271 of 1951 that there is no proof of the month of the tenancy. In all other appeals, the defendants themselves admitted that the tenancy month was according to the Gregorian Calendar. The objection to the validity of the notice, therefore, fails except in appeal No. 271 of 1951.
5. In these appeals, the further question was whether the notice terminating the tenancy was waived. After 31-12-1947, by the end of which the defendants were directed to vacate the premises, the Municipal Committee served them with another notice, dated 21-8-1948, by which their rents were raised with effect from 1-8-1948, and they were asked to pay the rent from that date at the enhanced rate. The notice- further directed that if they did not want to pay the enhanced rent, they should vacate the shops by 31-8-1918. This notice cannot be used for the purpose of terminating the tenancy ss it was not a 15 days' notice as required by Section 106 of the Transfer of Property Act. The question is whether the previous notice should be deemed to have been waived thereby within the meaning of Section 113 ibid.
6. It is no doubt true that the waiver contemplated by Section 113 of the Transfer of Property Act should be with the express Or implied consent of the person to whom the notice is given,' by any act on. the part of the person giving it showing an intention to treat the lease as subsisting. In Parekh Nandlal Bhimji v. Anant Govind, AIR 1940 Nag 140 (A), it Was held by Gruer, J., that where a tenant refuses to comply with the notice of the landlord to pay an enhanced rent or to quit the premises, and continues in possession, he must be deemed to have accepted the enhanced rent.
Similar view was held in Madan Garg v. Bohra Ram Lal, AIR 1934 All 115 (B) and Burge v. Inamulla Khan, AIR 1925 Oudh 189 (3) (C), on which Gruer, J., relied. Illustration (b) to Section 113 of the Transfer of Property Act also supports this view. The Courts below were, therefore, in error in holding that the defendants did not accept the subsequent notice and consequently there was no waiver under law. In this view, the decrees for ejectment of these defendants cannot be maintained.
7. The result is that appeal No. 692 of 1951fails and is dismissed with costs. In other appeals,the decrees of the Courts below directing ejectmentof the defendants from the premises are set aside.The claim of the Committee for damages for use andoccupation, which have been computed at the original rent is, however, maintained. In view of thepartial success and failure in these appeals, partiesshall bear their own costs throughout.