1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 7th Court, Alipore dated 30-4-1976 in Title Appeal No. 460 of 1975 affirming those of the learned Munsif, 2nd Court at Sealdah, in Title Suit No. 313 of 1969.

2. Admittedly, the plaintiff-respondent was the owner of the suit premises and the defendant-appellant was a tenant under him in respect of the same at a rental of Rs. 50/- per month payable according to English calendar month. The plaintiff's case was that the defendant defaulted in payment of rent since December, 1967 and sublet a portion of the suit premises without the consent of the plaintiff. The further case of the plaintiff was that the plaintiff reasonably required the suit premises for her own use and occupation. A combined notice u/S. 106 of the T.P Act and S. 13(6) of the West Bengal Premises Tenancy Act was served on the defendant determining the tenancy with the expiry of June, 1969. As the defendant did not vacate the suit premises the plaintiff filed a suit for ejectment and recovery of khas possession and damages.

3. The defendant contested the suit by filing a written statement in which the alleged grounds of ejectment were denied. It was contended that the plaintiff at first gave a notice dated 27-1-68 which was not withdrawn and the second notice was not, therefore, legal and valid.

4. Upon a consideration of the evidence on record the learned Munsif has rejected the plaintiff's case of subletting and default. He has, however, found that the plaintiff reasonably requires the suit premises for her own use and occupation and for the occupation of her widowed daughter and her children. He has, further held that the first notice was waived and the second notice was legal, valid and sufficient. He has, therefore, passed a decree for ejectment in favour of the plaintiff. The finding of the trial court with regard to waiver of the first notice was not challenged before the lower appellate court. The finding of the trial court with regard to the reasonable requirement of the plaintiff for her own use and occupation and the occupation of her dependent widowed daughter and her children was upheld by the lower appellate court and the decree for ejectment was confirmed. Being aggrieved, the defendant has preferred this second appeal.

5. The first point that has been urged by Mr. J. Islam, learned Advocate for the appellant, is that there was an earlier notice dated 27-1-68 (Ext. A) sent by the plaintiff to the defendant and the suit founded upon the second notice is, therefore, bad in law. In support of his contention he has referred to the decision of the Supreme Court in Calcutta Credit Corporation Limited v. Happy Homes (Pvt.) Limited reported in AIR 1968 SC 471 wherein the Supreme Court has held that once a notice is served determining the tenancy or showing an intention to quite on the expiry of the period of the notice, the tenancy is at an end, unless the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. Where the notice given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both.

6. It is true that waiver of the notice is a bilateral act exhibiting an ad idem to continue the old contractual tenancy in spite of the notice. The mutual consent may be express or implied. S. 113 of the Transfer of property Act lays down that a notice given u/S. III, Cl. (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. Illustration (b) to S. 113 clearly shows that if a tenant continues in possession after expiry of the period of notice given by the lessor and the landlord serves upon him a second notice (thus indicating his intention to treat the lease as subsisting), there is implied waiver of the first notice. In Chandra Kisore Sukla v. Renuka Ballav reported in 84 CWN 324 B.N Maitra, J. has held that when a landlord issues a second notice treating the lease as subsisting, there is an implied waiver of the first notice to quit when the tenant continues in possession after the first notice. In Arjun Prosad Sharma v. Brojendra Nath Dhar, reported in 85 CWN 635, a Division Bench of this Court has held that the defence plea that the suit founded upon the second notice is bad cannot be availed of in the absence of any material to indicate that the earlier notice was accepted and acted upon by the defendants. In the instant case, admittedly the defendant continued in possession even after service of the first notice and thereafter the plaintiff served the second notice. There was, therefore, implied waiver of the first notice. The learned Munsif has held that even after the first notice the defendant tendered rent for the post notice period by money order to the plaintiff and continued in possession and thereafter the second notice was served by the plaintiff and in these facts and circumstances there was waiver of the notice by both the parties who treated the tenancy as continuing after the service of the first notice. This finding of the learned Munsif which does not suffer from any legal infirmity was not challenged before the lower appellant court.

7. In my opinion the question has lost all importance after the Supreme Court decision in V. Dhanapal Chettiar v. Yesodai Ammal reported in AIR 1979 SC 1745 that in a suit for eviction against the tenant under any State Rent Control Act notice u/S. 106 of the T.P Act is not necessary. It has been held that in order to get a decree for eviction against a tenant under any State Rent Control Act it is not necessary to give notice u/S. 106 of the T.P Act. Determination of a lease in accordance with the T.P Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease in accordance with S. 106 of the T.P Act. On the question of requirement of such a notice u/S. 106 of the T.P Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that S. 106 of the T.P Act merely providing for termination of the lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Act does not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise.

8. The first contention raised on behalf of the appellant must, therefore, fail.

9. The second and last contention of Mr. Islam is that local inspection of the suit premises and also the premises No. 78/3B, Christopher Road, Calcutta-46 where the plaintiff is residing is necessasry for effective adjudication on the question of the alleged reasonable requirement of the plaintiff for her own occupation. An application for local inspection has been filed on behalf of the appellant. The plaintiff has also prayed for additional evidence on the subsequent events. It has been stated in the application for additional evidence that Nemaichand Das, only son of the plaintiff expired about 10 years ago and that the widowed daughter of the plaintiff namely Smt. Geeta Sen has been residing at premises No. 106 Linton Street in a rented two room flat and is not now residing at the house of PW 1 Gour Chandra Das, son-in-law of the plaintiff as his licencee and that out of the three daughters two have already been married and another unmarried daughter and two sons are suitably employed and well-placed in life and that Smt. Geeta Sen and her children are no longer dependent on the plaintiff. In the affidavit in opposition the allegation is denied and it has been asserted by Geeta Sen that she is still living at the house of P.W 1 as his licencee and that she along with her childen are dependants of the pfaintiff. Upon consideration of the evidence on record I am of the opinion that neither local inspection nor additional evidence as prayed for is necessary for disposal of the appeal. Admittedly, by virtue of partition among the plaintiff and her son the suit premises has been allotted to the share of the plaintiff and the premises No. 78/3B, Christopher Road, has been exclusively allotted to her son. Admittedly, the plaintiff has been living with her son and his family in the said house as a licencee. It is also admitted that the plaintiff's son has married a Chinese lady and the plaintiff's case is that she being a Hindu widow finds it difficult to adjust to the mode of living of her daughter-in-law who has alien culture and is addicted to wine. Her food habits are also offending to the plaintiff and the plaintiff is not willing to live with her daughter-in-law and wants to shift to her own house which is the suit premises. Both the courts below have accepted the evidence of the plaintiff and her daughter in law and have arrived at the concurrent finding that it is not possible and desirable for the plaintiff to live with her Chinese daughter-in-law. Admittedly, there are four rooms in premises No. 78/3B, Christopher Road, two in the upper floor and two in the ground floor. The ground floor rooms are being used as Radio-shop. There is no dispute that the plaintiff's three grand sons are at present aged 30, 29 and 28 years and the first grand son is now married and is occupying one first floor room. Two other grand sons have attained marriageable age. Obviously the accommodation at 78/3B, Christopher Road where the plaintiff, her daughter-in-law and her two grand sons aged 29 and 28 years are huddled together in one room is quite insufficient even for the plaintiff's small family. In view of the above the courts below rightly held that plaintiffs present accommodation is not reasonably suitable and she requires the suit premises for her own use and occupation. The suit premises comprises two small rooms — one in the first floor and one in the ground floor. There is only one kitchen and one bath room and privy in the ground floor. There is only one entrance. Even if the requirement of the plaintiff's widowed daughter and her children be left out of consideration there cannot be any doubt that the plaintiff reasonably requires the suit premises at least for her own use and occupation. It is quite likely that her daughter and grand son and grand daughter would occasionally visit the plaintiff and stay with her for a temporary period even if it be assumed that they are now suitably accommodated in another house as alleged by the appellant and the plaintiff requires the said second room for their temporary accommodation. At any rate partial eviction in the instant case is not feasible inasmuch as there is only one kitchen, one bath room and one privy all in the ground floor. There is also one entrance to the house. The plaintiff cannot be forced to share the common bath room and privy with the tenant living in another floor. The common entrance and the common bath room and privy are likely to raise future disputes and constant quarrel. Considering all the facts and circumstances of the case I am of the opinion that the courts below have rightly held that the plaintiff reasonably requires the entire suit premises for her own use and occupation. Appellant's petition for local inspection and additional evidence stands rejected.

10. The appeal is, therefore, dismissed and the judgment and decree of the court below are confirmed. I make no order as to costs. The appellant is allowed six months time to vacate the suit premises subject to the usual payment or deposit in lower court of a sum equivalent to rent month by month within 15th day of the next following month. In default of payment or deposit for any month, the decree shall be executable at once.

Appeal dismissed.