I.N. Modi, J.
1. This is a plaintiffs landlords' second appeal in a suit for ejectment, which was decreed by the trial Court but on appeal dismissed by the learned Additional Civil Judge Udaipur by his judgment dated the 30th April, 1957, on the ground of the notice to quit having been waived.
2. The only question for determination therefore in this appeal is whether the finding of the Court of first appeal that the notice to quit had been waived by a subsequent notice is well-founded. In order to be able to properly decide this question, it is necessary to mention a few facts. It is admitted that the tenancy commenced in this case on the 23rd March, 1948, by a rent-note (Ex. 1) bearing that dale and that the tenancy was for a fixed term of one year from Maha Vadi 1, Smt. 2004 to Posh Sudi 15 Smt. 2005. The defendant tenant had expressly agreed in this rent-note that he would vacate the premises let out to him at the cud of the period of the tenancy without any objection, whatsoever. It is also not in dispute that the tenant had agreed to pay a total annual rent of Rs. 51/- which was agreed to be paid in two six-monthly instalments. The plaintiffs' case was that in one of the two shops let out to the defendant, he had started tethering his cattle and thereby he had caused considerable damage to the shop and therefore they were entitled to evict the defendant. Certain other grounds for eviction were also raised, such as personal necessity; but it is unnecessary to mention them in any detail inasmuch as it has been held by both Courts below that the defendant's use of the shop for the purpose of tethering his cows therein was unauthorised and injurious to the shop and this ground has not been challenged before this Court by learned counsel for the defendant. On the 2nd August, 1955, the plaintiffs gave a notice to the defendant terminating his tenancy and asked him to vacate the premises in suit on the mid-night of Bhadwa Sudi 15 Section 2012 or on such date he thought his tenancy did terminate. The latter refused to quit and consequently the present suit was instituted in the Court of the City Munsiff, Udaipur, on the 27th September, 1955.
(2) The defendant resisted the suit on a number of grounds but it is unnecessary to refer to any of them except the one relating to notice. It is remarkable that even so far as this aspect of the ease goes, ail that the defendant staled was that white the plaintiffs had given him notices to terminate his tenancy on the 30th June, 1953, 13th January, 1954 and the 2nd August, 1955, a further notice had been given to him on the 14th September, 1955 (Ex. A-2), by which he was called upon to execute a fresh rent-note, and it was further stated in this connection that that would show how the plaintiffs wanted to harass him. This ground was somehow interpreted by the learned Additional Civil Judge as having raised a case of waiver though it is pertinent to point out that no issue was raised on it in the trial Court. Naturally, therefore, that Court was not called upon to decide whether there was any waiver by the plaintiffs of their notice to quit dated the 2nd August, 1955, and as it further came to the conclusion on almost all the remaining issues in favour of the plaintiffs (except as to the issue relating to payment of the expenses of the notice) it decreed the plaintiffs' suit. The learned Additional Civil Judge on appeal upheld the finding of the trial Court on issue No. 1 which related to the damage caused by the defendant to one of the shops by tethering his cattle therein and held that on that ground they were entitled to evict the defendant; but that Court further came to the conclusion that the plaintiffs had waived their notice dated the 2nd August, 1955, and the earlier notices by their subsequent notice dated the 14th September, 1955, by which they had called upon the defendant to execute a fresh rent-note in the name of the trustees of the temple to which the shops belonged, and in that view of the matter dismissed the plaintiffs' suit. The plaintiffs have now come up in second appeal to this Court.
3. It is in these circumstances that the question arises whether the view of the learned Additional Civil Judge, that the plaintiffs' notice to quit had been waived, is well-founded. Having heard learned counsel for the parties at some length and having perused the relevant record, I have come to the conclusion that this appeal must be allowed, because there has been and can be no waiver of the notice to quit in a case like the present. As I have already pointed out above, the question of waiver as such had not been raised by the defendant in his written statement nor was a specific issue invited or framed on that point in the trial Court. This question was one of fact or perhaps mixed law and fact, and a perusal of the grounds of appeal submitted on behalf of the defendant in the Court below further reveals that it was not raised therein at all. Having regard to ail these considerations, I am surprised that the learned Additional Civil Judge should have dismissed the plaintiffs' suit, on that ground and allowed the appeal before him.
4. Be that as it may, I am further of opinion that there is no force in this contention even on the merits. It is admitted by the defendant him self in his written statement that notices to quit bad been given by the plaintiffs even earlier than on the 2nd August, 1955, that is on the 30th June, 1953, (at page C11 of the record) and 13th January, 1954 (Ex. 2), and that in all these notices the plaintiffs had asked the defendant to quit the premises in suit. His case, however, is that on the 14th September, 1955, yet another notice had been received by him from the plaintiffs in which the latter asked him to appear in their office and execute a rent-note in favour of the trustees. The question is whether this latter notice dated the 14th September, 1955, constitutes a waiver of the earlier notices. Learned counsel relies on Section 113 of the Transfer of Property Act, in support of his submission and the illustration (b) appended to it. This illustration reads as follows :
'(b) A, the lessor, gives B, the lessee notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.'
5. I have given my careful and anxious consideration to this contention and am clearly of opinion that there is no force in it. In the first place, as I have pointed out above, the question of waiver is one of fact dependent on the intention of the party or parties concerned. The only person who was cross-examined with respect to the notice dated the 14th September, 1955, Ex. A-2, was P. W. 4 Umedsingh, the Secretary of the Board of Trustees, and the solitary question which was put to him in that connection was whether the defendant Keshulal had been asked to execute a fresh rent-note, and his answer was that that might have been so, and no further questions were put to him as to with what intention or under what circumstances that notice had been given. It was explained in the Court below as it is in this Court during the course of arguments on behalf of the plaintiffs that that was a routine notice which was sent by the Secretary of the Trust Board as they had a number of properties belonging to the temple under their charge which had been let out before the trustees, were appointed and it was thought proper that fresh rent-notes should be obtained in the name of the trustees. The explanation is by no means improbable and so this subsequent notice is in my opinion clearly insufficient to waive the earlier notices, which had been given to the defendant specifically asking him to quit the premises, the more so as the plaintiffs had brought the present suit soon after, that is, on the 27th September, 1955, That is one aspect of the case.
6. The other aspect is that, as I understand the legal position, Section 113 of the Transfer of Property Act can hardly come into play in the case of a statutory tenant, that is, a person who is entitled to remain in possession of the premises by virtue of the provisions of a Rent Control Act as is the case here. It is not open to a landlord to evict such a tenant unless he is able to bring his case within the four walls of the Rent Control Act, and the tenant remains in possession on account of the protection afforded to him by the Act. Again, a mere otter or acceptance of rent after the notice to quit had been given does not and cannot bring about a waiver of the notice.
The correct legal position in this type of case is that the tenant offers the rent not because he gives his consent to the creation of a new contractual tenancy or the subsistence of the old contractual tenancy, but because he offers rent to fulfil his obligations under the provisions of the Rent Act, and, similarly, the landlord accepts rent not because he shows thereby an intention tot create a new tenancy or to treat the old contractual tenancy as 'subsisting' but because prima facie he is entitled to accept the rent so long as the tenant remains in possession. So also as to the giving of a second notice to quit and the tenant remaining in possession, the act of the tenant in continuing to remain in possession does not show his consent to the creation of a new tenancy or the 'subsistence' of the contractual tenancy, because he is entitled to remain in possession under the provisions of the Rent Act; and, likewise the landlord by giving a second notice to quit does not thereby show any intention to create a new contractual tenancy or treat the original contractual tenancy as subsisting, inasmuch as there already subsists a statutory tenancy which he cannot get rid of except in one of the ways provided by the Rent Act. It may be further pointed out that even where a landlord while giving a second notice to quit, may in fact intend to create a new contractual tenancy, no new contractual tenancy can arise, for the consent of the tenant to such creation is lacking, the tenant being in possession by virtue of the provisions of the Rent Act and not by any act of volition on his part. Reference may be made in support of this view to the case of Marcroft Wagons Ltd. v. Smith, 1951-2 All ER 271 wherein it was laid down by Denning L. J. that if the acceptance of rent can be explained on some other footing as for instance by reasons of an existing or possible statutory right to remain, then a new tenancy should not be inferred. Earlier Sir Raymond Evershed M. R. in the same case observed as follows:
'There is another very important matter to be borne in mind in considering what inference should be drawn in cases of this kind. Until, in the present century, the Rent Restriction Acts came into force, the law, broadly speaking, necessarily inferred, when exclusive possession was granted to one of the property of another at a rent payable to that other, that a tenancy had been created. The law did not recognise that those conditions were compatible with any other kind of relationship. That, I think, sufficiently appears from the passage in Halsbury's Laws of England, Hailsham Edn., Vol. 20 p. 8, to which counsel for the defendant referred. But it is now quite clear that, to use the formula which before has been applied, a new monstrum horrendum, informe, ingens has come into our ken -- the conception of a statutory tenancy, the conception that a person may have such a right of exclusive possession of property as to entitle him to bring an action for trespass against the owner of that property, but yet that such right would not confer any interest whatever in the land on the occupier who would not be able to dispose of it by grant or by testamentary disposition. It is, as has been said, a statutory right of irremovability.'
Putting the most favourable construction on the notice dated the 14th September, 1955, against this background, this was an intimation by the plaintiffs to the defendant to execute a fresh rent-note; or, as it were, an offer to create a new contractual tenancy. But as things transpired actually, this offer was never accepted by the tenant, and he continued in occupation as before without executing a fresh rent-note, and I have no hesitation in saying that he was enabled to do so because of the protection afforded to him by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and not because o any act of his own volition. In these circumstances, Section 113 of the Transfer of Property Act cannot come to the rescue of the defendant, and I hold accordingly.
7. There is yet another answer to the defendant's case and that is that the tenancy in the present case was a fixed-term tenancy for one year. This period expired on the 23rd March, 1949, by sheer efflux of time. The contention of learned counsel is that thereafter the tenant was 'holding-over' within the meaning of Section 116 of the Transfer of Property Act, and, therefore, a notice in the terms of Section 106 of that Act was necessary. This argument is, however, not sound, for it has been held by me in Motilal v. Poonamchand, ILR (1961) 11 Raj 1196: (AIR 1962 Raj 100) relying on the decision of their Lordships of the Supreme Court in Gangadutt v. Kartik Chandra Das, AIR 1961 SC 1067 that where a tenancy is for a fixed term, as soon as the tenant has forfeited the statutory protection, the landlord's right to evict the former at once arises on the efflux of that term, and in such a case no notice under Section 106 of the Transfer of Property Act would be necessary, and if no such notice is necessary it is futile to talk of the waiver of such a notice.
8. There is yet another argument which leads us to the same conclusion and that is that when the tenancy in the present case came into existence on the 23rd March, 1948, the Transfer of Property Act or an analogous law was not in force in the State of Udaipur from which area of Rajasthan this case arises. That being so, the provisions of the Transfer of Property Act cannot govern this type of case and a notice under Section 106 of the said Act does not seem to me to be at all necessary. Reference may be made in support of this view to the decision of their Lordships of the Supreme Court in Namdeo v. Narrmadabai, AIR 1953 SC 228.
9. The position, therefore, boils down to this that from whichever angle of vision, one may look at this case, it is impossible to uphold the decision of the Court of first appeal that the plaintiffs' notice dated the 2nd August, 1955, terminating the defendant's tenancy stood waived or was ineffective. In the view of the law, therefore, which I have felt persuaded to accept I am definitely of the opinion that the defendant having forfeited the statutory protection cannot take advantage of any supposed infirmity in the notice which the plaintiffs gave to the defendant to terminate his tenancy.
10. In the result, I allow this appeal, set aside the judgment and decree of the learned Additional Civil Judge and decree the plaintiffs' suit for ejectment. The plaintiffs shall be entitled to their costs throughout. Leave to appeal is refused.