B.C. Chakrabarti, J.
1. This is an appeal by the defendant from the decision of the learned Additional District Judge, 8th Court, Alipore affirming the judgment and decree passed by the Munsif. Second Additional Court, Alipore in Title Suit No. 38 of 1973 of his Court.
2. The respondent (hereinafter called the plaintiffs) instituted the suit for eviction of the appellant (hereinafter called the defendant) from the suit premises which comprises the entire first floor of Premises No. 9B Rani Sankari Lane, consisting of four bed-rooms, one kitchen and other appurtenances. The plaintiffs' case in short is as follows :--
The premises in suit belongs to the four plaintiffs of whom plaintiff No. 2 is married and has two children besides his wife. They have no other house. The other plaintiffs are still unmarried and are unable to marry for want of adequate accommodation available to them in the suit house. They are in occupation of the second floor of the house, the ground floor being in the possession of one A. S. Chatterjee and the first floor (suit premises) being in the occupation of the defendant. The plaintiffs other than plaintiff No. 2 have attained marriagable age but due to paucity of accommodation available to them in the present residence on the second floor of thepremises are unable to do so. It is also the case of the plaintiffs that plaintiff No. 1 is forced to live and carry on his business at 22B, Southern Avenue for want of accommodation. The defendant is a monthly tenant of the first floor at a rental of Rs. 50/- payable according to English calendar month. The defendant's tenancy was determined by a notice expiring 'with the month of Oct., 1970. The notice further indicated that in the event of the failure of the defendant to quit and vacate, the plaintiffs would he obliged to sue him for eviction. The defendant not having vacated, the plaintiffs instituted the suit for eviction of the defendant on the ground of reasonable requirement for purposes of own use and occupation.
3-4. The defendant contested the suit by filing a written statement. His case briefly is as follows :
Initially the defendant's father was the tenant in respect of the suit premises. Plaintiff No. 1 never resided in this house and has been residing elsewhere from long before the tenancy in favour of the defendant's father. The ground floor of the house was vacated by the previous tenant on Sept 15, 1971 and Anadi Saran Chatterjee has been set up by the plaintiffs in order to make out a case of reasonable requirement. The ground floor was previously in the occupation of South Indian tenants and fell vacant from time to time. The plaintiffs could have occupied the same if they were in need of more accommodation than what is available to them. The story of reasonable requirement for own use and occupation is untrue and the notice is otherwise bad in law.
5. The suit was once before dismissed on the ground of limitation. It was found that the plaintiffs had previously served a notice to quit on the defendant in Agu., 1957 (Ext. 'A') and there was no waiver of that notice. Therefore the suit instituted in 1971 was found to be barred by limitation, having been instituted more than 12 years after the determination of the tenancy. Against that decree of dismissal the plaintiffs preferred an appeal and the learned Appellate Court found that the question of waiver had not been properly considered. The decree of dismissal was therefore set aside and the suit was remitted back to the trial court for a proper adjudication with liberty to the parties tosuitably amend their pleadings and adduce such further evidence as they might choose.
6. After remand the trial court found that Anadi Saran Chatterjee was a tenant of the ground floor from 1963. The defence story that one Bala Subra-monium was a tenant of the ground floor was found not to have been established, even though a Rationing Inspector was examined to prove with reference to the Ration Card Register that one Bala Subramonium had a ration card and his address was noted in the Register as 9B, Rani Sankari Lane. The learned trial court preferred to rely on the oral testimony of A. S. Chatterjee (P. W. 5) supported by the rent counter foils (Ext. 6 series) produced by the plaintiffs in order to find that A. S. Chatterjee was the tenant of the ground floor since 1963. He found that the accommodation available to the plaintiffs in the suit house is insufficient and that they reasonably required the suit premises for their own use. On the question of waiver of the earlier notice the trial court found upon a reference to illustration (b) of Section 113 of the Transfer of Property Act, that the earlier notice Ext. A. was waived in view of the defendant continuing in possession in spite of the notice, deposit of rent with the Rent Controller, withdrawal of the same by the plaintiffs and the giving of a fresh notice. Ext. 1 treating the tenancy as subsisting. By taking all these facts into consideration it was held that the notice given in 1957 stood waived by implication and by conduct of the parties. The notice Ext. 1 was found to be valid and sufficient. There was no dispute as to its service. The suit was accordingly decreed on contest.
7. On appeal by the defendant the learned Lower Appellate Court accepted the findings of the trial court that the ground floor was in the occupation of P. W. 5 as a tenant, that the first notice issued in 1957 stood waived by the conduct of parties and that the plaintiffs required the suit premises for their own use and occupation. The appeal was accordingly dismissed. Hence the second appeal.
8. Mr. Das Gupta appearing on behalf of the appellants argued that in the facts and circumstances of the case Section 113 of the T. P. Act could not be attracted and the earlier notice dated 25-8-57 could not be said to have been waived. He accordingly contended that the presentsuit founded on the second notice. Ext. 1 is not maintainable. He also contended that the finding of the two courts below with regard to the occupation of the ground floor by A. S. Chatterjee as tenant from 1963 is not based on any reliable or cogent evidence. He complained that in arriving at the conclusion the courts below have overlooked some of the oral evidence and have also taken into consideration the rent counterfoil which was strictly inadmissible as against the tenant.
9. The learned Advocate for the respondent on the other hand argued that the question whether the ground floor is in the occupation of A. S. Chatterjee as a tenant or not is essentially a question of fact on which the two courts below have concurrently come to a finding on the evidence on record and that this court While considering the second appeal cannot question that finding unless it is proved or shown to be based on no evidence or is otherwise unreasonable, arbitrary or perverse.
10. There can be no dispute that in a second appeal any question of fact concurrently found by the two courts be-low is not open to challenge. It is not permissible for this court to reappraise the evidence and come to an independent finding on the basis thereof unless it is proved that there is no evidence to support the finding or that the finding is perverse and arbitrary (see) : 1SCR127 . In the instant case it is not possible to say that there is no evidence in support of the finding. Mr. Das Gupta pointed out from the evidence that the Ration Card Register proved by an independent witness indicates as if one Bala Subramonium was in occupation up to 1967 because his name was struck off from the register in that year. It was argued therefore that if that be so the story of A. S. Chatterjee being in occupation of the ground floor from 1963 must be false. The fact that the name of Bala Subramonium was borne in the register up to 1967 does not necessarily mean that he was factually in occupation up to 1967. Mr. Das Gupta also argued that the rent counterfoils produced by the landlord in order to prove the tenancy of A. S. Chatterjee was inadmissible as against the defendant. He contended on the authority of AIR 1982 SC 127, that a counterfoil of a rent receipt is an admission in favour of the landlord and cannot be used against the tenant. The courts below having taken into consideration the rent counterfoils, Mr. Das Gupta complained that the finding is based on inadmissible evidence. It is true the counterfoils were admitted into evidence and also taken into consideration. The decision relied on by Mr. Das Gupta does not lay down a proposition that the counterfoils are not admissible at all. They are admissible in evidence but their probative value as against the tenant must have to depend on the other attending facts and circumstances and evidence, on record. In the instant case the courts below have relied on such evidence, particularly the evidence of A. S. Chatterjee himself. It is not for me to find otherwise unless it is further found that the evidence of A. S. Chatterjee ought not to have been believed. The mere fact that a different view of the evidence is possible does not justify the court hearing a second appeal to take that different view on a question of fact which is otherwise concluded by the concurrent findings of the two courts below. It is not possible to say that the finding is perverse.
11. This apart although Mr. Das Gupta was rather loud in his argument on this aspect of the matter it is significant to note that in the grounds of appeal this was not a point taken by the appellant.
12. The only other substantial question raised by the appellant is whether the suit founded on the notice, Ex. 1 is maintainable or not. It has been argued by Mr. Das Gupta that there was an earlier notice issued in 1957 and that notice not having been waived the present suit founded of the second notice is misconceived. For the reasons that I shall presently discuss I am unable to accept the contention of the appellant in this regard. In the first place it may be mentioned that the defendant in his written statement nowhere alleged that the tenancy already stood determined by the notice dt. 25-8-1957. A plain reading of the written statement clearly indicates that the defendant treated the tenancy as subsisting. The plaintiff obviously also intended so. Such intention is apparent from the fact that the plaintiffs sought to determine the tenancy by the service of a fresh notice, in 1970, Duringthis long spell of 13 years there was no whisper from either side that the tenancy stood determined. Everybody proceeded on the basis of a subsisting tenancy. The tenant deposited the rent with the Rent Controller and the landlord withdrew the same from the office of the Rent Controller indicating thereby their intention to treat the tenancy as subsisting. Illustration (b) of Section 113 says that where the lessor gives the lessee a notice to quit and the lessee remains in possession after the expiry of the notice and thereafter the lessor gives a second notice to the lessee, the first notice stands waived. Section 113 in its terms lays down that a notice given under Section 111 Clause (h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Clause (h) of Section 111 refers to determination of lease on the expiration of a notice to quit-Therefore upon a plain reading of Section 113 and Illustration (b) thereof, it is clear that the first notice stood waived by implication as would be evident from the conduct of the parties.
13. Mr. Das Gupta drew my attention to Section 23 of the West Bengal Premises Tenancy Act and argued that the withdrawal of rent deposited by the tenant under Section 21 does not operate as waiver of any notice to quit given by him to the tenant. It is true that mere withdrawal of rent without more may not operate as a waiver but here the case does not rest on that fact alone. The conduct of the parties, the failure of the defendant to allege that there was an earlier notice and that the tenancy already stood determined and the giving of a second notice by the lessor clearly bring the case within the meaning of Section 113 of the T. P. Act. The earlier notice must be held to have been waived. Mr. Das Gupta's contention that the suit founded ion the second notice is not maintainable, cannot therefore be upheld.
14. There is yet another aspect of the matter. The learned lawyer for the respondents argued upon a reference to the case of V. Dhanapal Chattiyar v. YesodaiAnimal : 1SCR334 that in the instant case a notice determining the tenancy ander Section 106 of the T. P. Act was a surplusage and as such there can be no question of its waiver. It has indeedbeen held in this case that a notice under Section 106 is not essential for bringing to an end the relationship between the landlord and tenant where the Rent Act provides fulfilment of certain conditions before the landlord can ask for eviction of the tenant. Mere determination of the lease cannot, it has been held, bring to an end the relationship because of the protection given to the tenant under the Rent Act. Mr. Das Gupta in refuting the contention of the learned Advocate for the respondents interpreted the decision to mean that a notice determining the lease may not be necessary because in view of the definition of the term 'tenant' he continues to remain a tenant even after such determination. In other words his contention is that such a tenant whose tenancy has been determined is a statutory tenant as opposed to a contractual tenant. There might have been some force in this contention but for the observation of the Supreme Court to the following effect-
'......it is not necessary for thelandlord to terminate the contractual relationship to obtain possession of the premises for vacating the tenant. If the termination of the contractual tenancy by a notice does not, because of the Rent Act provision, entitle the landlord to recover possession and he becomes entitled only if he makes out a case under the special provision of the State Rent Act, then, in our opinion, termination of the contractual relationship by a notice is not necessary. The termination comes into effect when a case is successfully made out for eviction of the tenant under the State Rent Act.'
15. The observations clearly indicate that the Statute has rendered the contractual relationship inconsequential. Therefore the question whether there was an earlier determination thereof becomes irrelevant and the subsidiary question whether the earlier determination by notice has or has not been waived also loses all importance. If there can be no termination of the contractual relationship by the mere giving of a notice Under Section 106 of the T. P. Act, the question of waiver of such termination becomes meaningless. Therefore in any view of the matter the contention of the appellant in this regard cannot be accepted.
16. The appeal accordingly fails and is hereby dismissed.
17. There will be no order for costs.
18. Let the records go down at once.