Mehrotra, C.J:— This appeal has come to the Division be nett, on a reference by a Single Judge and has been file on behalf of the defendants, plaintiff-respondent brought a suit for ejectment of the defendants from, two rooms over five lechas of land comprised in dag: No. 592 of Kheraj Periodic Patta No. 431 situated in Fancy Bazar, Gauhati Town. The facts are that the plaintiff took a lease of a plot of land measuring 15½ lechas comprised in dag No. 592 of the Kheraj Periodic Patta No. 431 with a four-roofed C.I sheet house thereon from Mustt. Jubeda Khatun and Md. Imamuddin who were arrayed as pro forma defendants Nos. 3 and 4 respectively, for a period of eleven years with effect from the 12th January, 1951 at a monthly rent of Rs. 220/- under a registered deed of lease. Defendant No. 1 Bhagat Ram Brahmin and defendant No. 2 Jagannath Brahmin were in occupation of the two rooms of the said house and according to the plaintiff they were tenants-at-will under the pro forma defendants Nos. 3 and 4 on a monthly rent of Rs. 110/-. In the lease it was agreed between the plaintiff and the pro forma defendants that the plaintiff would demolish the old existing house on the land and would erect a new two or three storied building thereon and would pay rent at the rate of Rs. 600/- par month to the pro forma defendants after construction of the house. The plaintiff was authorised under the lease to realise the monthly rent from the principal defendants 1 and 2 and to take necessary steps for their ejectment. Half the cost of the suit for ejectment was to be borne by the defendants Nos. 3 and 4.

2. After the lease the defendants were asked to vacate the suit premises and to enable the plaintiff to reconstruct the building. But the principal defendants Nos. 1 and 2 did not vacate the premises. The plaintiff then served notice on the principal defendants asking them to vacate the suit premises by the end of the 31st October 1951 and to pay the arrears of rent, which they refused to do. On these facts the present suit has been brought for ejectment of the defendants and for a decree of Rs. 2,149/9/- on account of arrears of rent from the 12th January, 1951 till the 31st October 1951 and compensation at the rate of Rs. 10/- per diem for the subsequent period.

3. The trial court decreed the suit for ejectment but refused to pass a decree for compensation and arrear rent. On appeal by the defendants the decree of the trial Court was affirmed. The parties were directed to bear their own costs. In the present appeal by the principal defendants a number of points have been raised. The first contention is that the principal defendants Being the lessees, the lessors had no right to execute a second lease in favour of the plaintiff. Secondly. It is urged that as during the pendency of the suit the lease has expired, on the date of the appellate Court's decree the plaintiff had no subsisting right to eject the defendants and thus he was not entitled to any decree for ejectment. Thirdly it is contended that the notice is illegal inasmuch as the plaintiff has not been able to prove the commencement of the tenancy and thus it cannot be said that the notice terminating the tenancy by the end of the calendar month was a valid notice. Fourthly it is urged that as the plaintiff withdrew the amount of rent for the period subsequent to the giving of the notice, his conduct amounts to waiver and the suit is not maintainable.

4. In our opinion there is no substance in the contention of the appellants that the lessors could not execute a second lease in favour of the plaintiff during the subsistence of the first lease. Section 109 of the Transfer of property Act provides that if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him. Under the section even the transfer of a part of a lessor's interest is permissible and on the said transfer the reversionary right vests in the transferee. A lease is a transfer of a part of the interest of the lessor in the property.

5. Mr. Lahiri who appears for the appellants had to concede that the second lease cannot be said to be void. But his contention is that so long as the defendants were not ejected, the lessors were not in a position to deliver possession to the plaintiff as a lessee and thus the lease was ineffective. After the creation of the lease in favour of the plaintiff by the lessors the reversionary right of the lessors was transferred to the plaintiff and thus the plaintiff stepped into the shoes of the lessor landlord for the purpose of ejecting the defendants. Apart from the specific provision in the lease itself that the transferee plaintiff could take necessary steps for the ejectment of the defendants, the plaintiff was entitled to enforce the right of the transferor to enter into possession of the property by ejecting the defendants.

6. In ‘Woodfall on Landlord and Tenant’, Twenty-sixth Edition, Vol. 1 by Lionel A. Blundell and V.G Wellings at page 288 the following passage summarises the effect of concurrent leases:

“A concurrent lease is one granted for a term which is to commence before the expiration or other determination of a previous lease of the same premises to another person. Such a lease is said to take effect in reversion expectant upon the earlier term, which may be either shorter or longer than the concurrent term. But it should be observed that the concurrent term takes effect at once from the time limited for its commencement, and operates as an assignment of the reversion during such time as the two terms run concurrently. It is not a future lease postponed to the termination of the earlier term. It entitles the lessee, as assignee of part of the reversion, to the rent reserved in the previous lease, and to the benefit of the covenants therein contained, which are to be respectively paid and performed during the then residue of the term granted by the first lease, and the continuance of the concurrent lease.”

7. In the case of Bhogilal M. Davay v. S.R Subramania Iyer, reported in AIR 1954 Mad 514 it was held that a lease can be a transfer of part of the interest in the property as contemplated under Section 109 of the Transfer of property Act and thereon the transferee gets all the rights of the transferor as to the severable part so transferred. Such a transferee is, therefore, a landlord and he is entitled to apply under Section 7(3) of the Rent Control Act. We are in complete agreement with the principle enunciated in this case. After the lease in favour of the plaintiff, the plaintiff became the landlord of the defendant and he could bring a suit for ejectment of the defendants.

8. The next case to which reference may be made is the case of Md. Fazihzzaman v. Anwar Husain, reported in AIR 1932 All 314. In this case a suit was brought by the lessor and the subsequent lessee for ejectment of a previous lessee. The previous lease was to expire on the 23rd July, 1927. Before the expiry of the previous lease, on the 6th May, 1927 another lease was executed in favour of the third party. At first a suit was brought both by the lessor and the subsequent lessee for ejectment of the first lessee. But later on the lessor was transferred as a defendant. The suit was decreed by the Courts below and the decision was upheld by a Bench of the High Court which held, that a subsequent lessee is entitled to enforce his right to obtain possession of the land leased to him by evicting another in possession under a lease.

9. To the same effect is the decision of the Allahabad High Court in the case of Bishen Sarup v. M. Abdul Samad, reported in AIR 1931 All 649.

10. The next point urged is that the notice was invalid inasmuch as nowhere in the plaint the date of the commencement of the tenancy is mentioned and unless the plaintiff sets out the date of the commencement of the tenancy, it cannot be said that the notice terminating the tenancy by the end of the calendar month is a valid notice. Reference in this connection may be made to the case of Mozam, Shaikh v. Annada Prasad Bhadra, reported in AIR 1942 Cal 341. It was decided in this case that where in a suit by the landlord to eject his tenant the landlord pleads that the notice served by him was sufficient to determine the tenancy, the onus is on the landlord to establish that the notice legally determined the tenancy by showing that it expired either with the end of the year or the end of the month of the tenancy, and if the landlord falls to prove the date of commencement of the tenancy, his suit must fail. Reliance is next placed on the case of Lemon v. Lardeur, reported in (1946) 2 All ER 329. In which it was held as follows:

“Having pleaded that the tenancy had been determined by notice, it was for the appellant to establish that the notice was a valid notice. No evidence having been called to show that the date when the notice actually expired was in fact the end of a period of tenancy, the appellant had failed to establish that the notice was a valid notice and that the tenancy had been determined.”

11. As the point was never raised before the Court below, it is difficult to allow the appellant to raise this point in second appeal. If the point had been raised, the plaintiff would have led evidence to show the date of the commencement of the tenancy. The notice was given on the 5th September, 1951 and from the averment in the plaint it is clear that the plaintiff acted on the footing that the tenancy was a monthly tenancy according to the English calendar month.

12. The next point in this connection urged is that the plaintiff withdrew a sum of Rs. 1,870/- from the Court of the Munsiff out of the amount deposited by the appellants on account of rents in respect of the suit premises under the provision of the Assam Urban Areas Rent Control Act after the institution of the suit and this constituted a waiver of the notice to quit. Section 113 of the Transfer of Property Act provides as follows:

“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 person giving it showing an intention to treat the lease as subsisting.”

13. This section clearly provides that the notice will be deemed to be waived only if the landlord by express words or by implication or his conduct intends to treat the lease as subsisting. Unless there is anything to show that the landlord by him conduct intended to treat the lease as subsisting, there will be no waiver of the notice. The counsel for the appellants relies upon the illustration (a) appended to the section, which runs as follows:

“A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.”

14. The illustration, according to the appellants, applies to the facts of the present case. The illustration shows that if after the expiry of the notice the lessee tenders the rent and the landlord accepts it, then it may constitute waiver. The acceptance under these circumstances will no doubt amount to the tacit consent of the landlord to continue the tenancy. But in the present case the amount was deposited in Court under the provisions of the Assam Urban Areas Rent Control Act. There, was no tender of the rent by the lessee to the landlord and acceptance by him. Mere withdrawal thus off the amount by the plaintiff under the Assam Urban Areas Rent Control Act does not constitute waiver in the absence of any evidence to show that the landlord intended to keep the lease subsisting.

15. Reliance is placed in the case of Jagannath Karanani v. Sayed Abdul Wahed reported in AIR 1962 Assam 148. This case, to our mind, does not support the contention of the appellants. In this case it was held as follows:

“The notice of ejectment can be waived under S. 113 by the mutual consent of the lessor and the lessee. The consent of the lessee can be given expressly or by implication it can be inferred and the intention on the part of the lessor to continue to treat the lease as subsisting can be shown by any act of the lessor.

The acceptance of rent after expiry of the notice by itself may not necessarily constitute waiver. But it is an act on the part of the lessor which will go to show the intention on his part to treat the lease as subsisting. Past conduct of the landlord in giving notice earlier for ejectment and thereafter not bringing any suit and accepting rent for three successive months will go to show that when the landlord accepted rent after giving notice he intended to continue the tenancy and waive the notice.”

16. Thus on the facts of that case it was held that the conduct of the landlord justified an inference that he intended to continue the tenancy.

17. The next case is Pulin Behary Shaw v. Miss Lila Dey, reported in AIR 1957 Cal 627. What this case lays down is that the English law waiver of a notice to quit is not applicable to India and full effect to Section 113 of the Transfer of Property Act should be given. The English law required creation of a fresh tenancy, but no fresh tenancy need be created in the Indian law and there can be a waiver of the notice to quit without the creation of a fresh tenancy. To my mind, what the Indian law requires is that the notice can be waived provided the landlord intends to continue the subsisting lease and obviously if the effect of S. 113 is that the old lease continues and the notice is waived, no question of creating a new tenancy would arise. In the Calcutta case it was further held that the West Bengal Premises Rent Control (Temporary Provisions) Act creates a statutory tenancy in favour of a tenant if he holds over and any payment of rent by him subsequently can be attributed to the fresh statutory tenancy and not to the contractual tenancy and thus the receipt of the rent by itself will not constitute waiver.

18. In the case of Manindra Nath De v. Man Singh, reported in AIR 1951 Cal 342 it was held as follows:

“In order to establish waiver of notice to quit there must be proof of an agreement between the landlord and the tenant to treat the tenancy as continuing. Ordinarily acceptance of rent is an excellent evidence from which an inference can be drawn that the notice to quit has been waived. Under the law relating to landlord and tenant payment and acceptance of rent must necessarily prima facie refer to a contract of tenancy. But under the Rent Control Act when rent is paid under the Act after the contract of tenancy has come to an end and in spite of it, it cannot of course be rent payable under that contract inasmuch as the tenant is bound to pay it if he wishes to avail himself of the benefit of the Rent Control Act. Consequently, mere production of rent receipts in respect of periods subsequent to termination of tenancy by notice to quit would not be enough to prove an agreement to continue the tenancy so as to constitute waiver of notice when the rent is paid by the tenant only for the protection of his rights under the Rent Control Act.”

19. To the same effect is the decision of the Madhya Pradesh High Court in the case of Kamaksha Prasad Mishra v. Smt. Parwatibai Sitambarnath, reported in AIR 1960 Madh Pra 192. In the case of Puran Mal Jaiswal v. Onkar Nath Choudhary, reported Sn AIR 1959 Pat 128 it was held as follows:

“The most important thing to notice is that waiver of notice to quit does not like waiver of forfeiture, depend upon the will of one party, namely, the landlord, but upon the consent of both, the landlord and the tenant. There cannot be waiver of notice to quit under Section 113 without the express or implied consent of the persons to whom the notice is given.

Where there is a repudiation of the tenancy and disclaimer of the title of the landlord by the tenant, a mere demand of rent for the period subsequent to the expiration of the notice cannot constitute waiver of notice to quit, for the simple reason that in such a case there can be no question of consent of the tenants either express or implied to the waiving of the determination of the tenancy.”

20. The review of authorities brings out that before a notice can be treated to have been waived, there must be an express or implied intention on the part of the landlord to continue the tenancy. As in the present case there was no evidence to that effect and that there is nothing in the conduct of the landlord to justify an inference that he intended to continue the tenancy, the notice cannot be said so have been waived.

21. Mr. Lahiri contends that admittedly the term of the plaintiff's lease having expired during the pendency of the appeal, he has no subsisting right to eject the defendants. It is open to the court of appeal to take into consideration the subsequent event in moulding the relief to be granted to the parties to the suit. The lease was for eleven years from the 12th January, 1951. The suit was brought on the 19th May, 1952. The trial court's judgment was given on the 28th September, 1955. The lower appellate Court's judgment was given on the 22nd December, 1962. It does not appear as to why the appeal took seven years in the Court below. There was another suit in which the appeal came to this Court and it is perhaps due to that litigation that the appeal could not be taken earlier before the Additional District Judge. The lease thus expired during the pendency of the appeal in the Court below.

22. Before examining the correctness of the contention of the appellants it is relevant to note that the plaintiff is not trying to eject the defendants as lessees. But by the lease in his favour he has acquired the right of the lessors and he is in effect enforcing the right of the lessor and will be given possession for and on behalf of the lessors. If due to the expiry of the lease he is not entitled to get possession, it is always open to his lessors to get back possession from him. But when the lessors are a party to the suit and the lessee is enforcing the right of the lessors to eject the defendants, the expiry of the lease will not affect the right of the lessee.

23. If any subsequent change in law or subsequent events had the effect of extinguishing the right of the plaintiff, undoubtedly the appellate court will take notice of such an event and will refuse to grant a decree to the plaintiff. If by any statutory provision the defendants have acquired protection from ejectment on the date of the decree, undoubtedly the court will give effect to it and refuse to give a decree for possession to the plaintiff. There may be cases where on the date of the suit the plaintiff's suit was premature. But during the pendency of the suit if the plaintiff acquires right to bring a suit, he will not be refused a decree for ejectment on the ground that on the date of the suit, he had no right to eject the defendants. But in the present case as the lessee was enforcing the right of the lessors and the lessors are a party to the suit, the defendants cannot resist their ejectment on the ground that during the pendency of the appeal the lease of the plaintiff had expired.

24. The authorities cited may be examined. In the case of Lachmeshwar Prasad Shukul v. Keshwar Lal reported in AIR 1941 F.C 5 it was held as follows:

“The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against, consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given.” Curing the pendency of the appeal the Bihar legislature had passed an Act which gave certain benefit to the appellant before the Federal Court. The Federal Court held that the appellant was entitled to the benefit, though the Act was passed during the pendency of the appeal. The court of appeal in India being a court of rehearing, can always take into account the change in law in order to give proper relief to the parties.

25. The next case is Nuri Mian v. Ambica Singh, reported in AIR 1917 Cal 716. The plaintiff in this case brought a suit for preemption on the ground of cosharership. Before the decree was passed there was a partition and the joint property was divided among various cosharers. It was held by the Calcutta High Court that the partition decree could be considered by the Court and the plaintiff lost his right to get a decree for preemption as the right of preemption arises from the moment the sale is effected by a cosharer. Once the cosharership terminates, the foundation for the exercise of the right of preemption vanishes. The effect of the partition was that the status of cosharership came to an end and will be deemed to be effective from the very date of the suit.

26. The next case is Tafazul Hussain v. Than Singh, reported in ILR 32 All 567. This is also a case where a cosharer had brought a suit for preemption and before the decree could be passed, the property was partitioned and the plaintiff and the vendors became owners of different mahals. On these facts it was held that the plaintiff lost his title to get a decree for preemption.

27. In the case of G. Kanakaiya v. Janardhan Padhal, reported in ILR 36 Mad 439 the Full Bench of the Madras High Court held that where an appeal from a decree in ejectment passed under the old law is heard after the commencement of Madras Act 1 of 1908 (Estates Land Act) the defendant being a royt in possession of ryot land on such date, he is entitled to claim a right of occupancy under section 6, clause 1 of the Act notwithstanding the original decree.

28. This is a case where the defendant acquired a right of occupancy under the Act which was enforced on the date of the decree passed by the appellate court and it was held that the change in the law has to be given effect to. Giving effect to the law was not in any way affecting the relief granted to the plaintiff in the suit. It only took note of the change in law under which the defendant was granted further protection. In spite of the decree for ejectment the defendant could in that case under the Act claim protection. The principle enunciated in that case is not attracted to the facts of the present case.

29. In the case of Surinder Kumar v. Gian Chand, reported in (S) AIR 1957 SC 875, the plaintiffs had brought a suit on a mortgage, claiming to be heirs and representatives of the original mortgagee, who had, under a registered will, bequeathed to them the rights in the mortgage. The suit was dismissed by the High Court, holding that the plaintiffs had no locus standi to maintain the suit as the will was not properly attested. The plaintiffs thereafter applied for probate and obtained it in their favour. In appeal by special leave before the Supreme Court, the plaintiffs-appellants applied for admission of additional evidence, praying that the probate of the will be placed on record. This evidence was accepted and their Lordships of the Supreme Court held that in deciding the appeal the Supreme Court had to take the circumstances as they were at the time when the appeal was being decided and a judgment in rem having been passed in favour of the appellants it was necessary to take that additional fact into consideration. The Federal Court decision referred to above was relied upon. There also the judgment of the probate court was a judgment in rem and by taking notice of that judgment the initial defect in the right of the plaintiff to bring a suit for the enforcement of the mortgage was remedied and thus there was no bar to the plaintiff relying upon that judgment in rem and getting a decree in his favour.

30. Reference has been made in the case of Deoraj Singh v. Kambilas Singh, reported in AIR 1951 Pat 629. In this case after the institution of rent suits by the plaintiff the tenants had made applications for commutation of their rent under Section 40 of the Bihar Tenancy Act, before the Revenue Court. During the pendency of the second appeal the rent was commuted by the Revenue Court and it was held by the High Court that the appellate court was entitled to take notice of the commuted rent and the landlords are not entitled to get a decree for rent other than the rent commuted. It was observed that it is the duty of the appellate court, under the provisions of section 107 and O. 41 R. 33 to take into account any subsequent event which might affect the rights of the parties which may have come into existence at or before the passing of the final decree by the appellate court. There was no dispute in this case that the tenants will be entitled to get the rent commuted according to the terms of the Bihar Tenancy Act and as during the pendency of the appeal the Revenue Court had commuted the rent, the plaintiff was not entitled to any higher rent.

31. The next case is Amritlal N. Shah v. Alla Annapurnamma, reported in AIR 1959 Andh Pra 9. In this case the plaintiff had brought a suit for eviction of the defendant on the ground of forfeiture of lease for non-payment of rent. During the pendency of the suit the lease expired and the plaintiff sought an amendment of the plaint putting forward an alternative ground of claim for possession on the basis of expiry of lease. It was held that the court was entitled to allow this amendment and the relief could be granted to the plaintiff. Their Lordships observed:

“It is now well-settled that in proper cases the Court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and belt attain the ends of justice. This power may be exercised even by the Court of appeal as an appeal is only in the nature of a re-hearing.

Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made.”

32. To the same effect is the case of Priyambada Debee v. Bholanath Basu, reported in AIR 1933 Cal 634.

33. In the case of Suresh Chandra v. Kanti Chandra, reported in AIR 1928 Cal 436, the plaintiff brought a suit for ejectment of the defendant. The suit was dismissed by the trial court on the ground that the defendant was protected from ejectment under the provisions of the Rent Act. During the pendency of the appeal the Rent Act expired and the appellate Court allowed the appeal and decreed the suit. The decision of the appellate court is affirmed by the High Court on the ground that the fact that the Act has expired could be taken into consideration by the appellate court. The decree in that case was refused on the ground that the defendant was protected and when the Act expired the protection was no longer available to the defendant and thus such a fact was separately taken into consideration in moulding the relief to which the plaintiff was entitled in the case.

34. The last case cited is Mohanlal v. Tribhovan, reported in AIR 1963 SC 358. The appeal arose out of a suit for ejectment. The court below decreed the suit for ejectment on the ground that from 1st August 1949 the Bombay Tenancy and Agricultural Lands Act was extended to the State of Baroda. On second appeal by the tenants the appeal was allowed and the suit was dismissed.

35. It was conceded before the Supreme Court that if the Bombay Agricultural Tenancy Act was applicable, then the suit must fall as the civil court had no jurisdiction. Reliance was however placed on a subsequent notification issued by the Bombay Government in April 1951. To what extent the subsequent notification could be taken into consideration was considered by their Lordships of the Supreme court and it was held that if the landlords have obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court.

36. Thus all these authorities clearly disclose that the subsequent events which affect the right of the plaintiff to get a decree or which will be helpful in doing justice between the parties, can be taken into consideration in moulding the relief and such events can be considered even at the appellate stage. But in the present case, as already pointed out, the plaintiff was enforcing the right of the landlords. After ejectment of the defendants when he obtains possession it will be for the benefit of the landlords lessors if he is not entitled to hold possession as against the landlords on account of the expiry of the terms of the lease. It is not a case where any subsequent event has happened which has changed the right of the plaintiff or has afforded any protection to the defendants. So far as the defendants are concerned, if their ejectment has been rightly ordered, it cannot be said that the expiry of the plaintiff's lease has afforded any further protection to them, particularly in this case when the lessor is a party to the litigation.

37. The court below has further relied upon the renewal clause in the lease. Mr. Lahiri's contention is that the renewal clause in a lease does not create any fresh lease by itself after the expiry of the lease. It is only a contract which gives a right to the lessee to enforce it by means of a suit for specific performance. He relies upon the cases of Mahendra Nath v. Kailash Nath, reported, in AIR 1929 Cal 50 and Basanta Charan Sinha v. Rajanl Mohan Chatterji, reported in AIR 1922 Cal 514. It cannot be doubted that the mere renewal clause does not create any fresh lease. But the contention of the respondent is that as there was a renewal clause, it cannot be said that by mere expiry of the lease the right of the plaintiff to get possession from the defendants and to remain in possession till evicted therefrom by the lessors has come to an end.

38. In this connection another point may be noted. The defendants filed additional written statement and in paragraph 2 of the additional written statement it is stated as follows:

“The suit land having been purchased fraudulently after this suit was filed by the plaintiff and thereby the former lease right having been extinguished, the said lease right is not subsisting at present and so the plaintiff's suit cannot proceed, and the said suit deserves dismissal.”

39. The case of the plaintiff is that a part of the leased land was purchased by the plaintiff and the defendants in the courts below had raised a point that on account of the purchase the plaintiff's right as a lessee merged into his proprietary right and thus be could not bring a suit for ejectment of the defendants on the basis of his right as a lessee. This contention was repelled by the courts below on the finding that the lease was for a larger area than the area purchased by the plaintiff.

40. The contention of the plaintiff respondent is that even if the argument of the appellants is accepted that the subsequent events can be taken into consideration, the court cannot take into consideration the purchase by plaintiff of the land on which the houses are situated, and thus the suit could not he dismissed even though the lease has expired. Mr. Lahiri for the appellants has contended that the entire land in dispute was not purchased by the plaintiff and there is no evidence to show that he had purchased the interest of all the owners of the land. That being so, the plaintiff-respondent cannot ask this court to take into consideration the purchase in favour of the plaintiff. I have already referred to the averment in the written statement which goes to show that the defendants have admitted that the plaintiff has purchased the land in dispute and thus it cannot he said that by mere expiry of the lease the plaintiff has lost all the right to get a decree for ejectment which he was otherwise entitled to.

41. The last point urged was that a landlord could get a decree for ejectment only where the house is bona fide required by the landlord either for purposes of repairs or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court. In the present case as the lease of the plaintiff had expired he could not have bona fide required the house for purposes of repairs. It is not disputed that the condition of the house was such that it required repairs. The municipality had issued notices to the landlord to take steps to repair the house as it was in a dangerous condition and thus on the finding that the plaintiff is entitled to bring a suit for ejectment as lie has stepped into the shoes of the landlord, it cannot be said that as the lease had expired, he cannot be said to bona fide require the house for the purposes of repairs.

42. Clause (3) of Section 6 of the Assam Urban Areas Rent Control Act, 1949 (Assam Act XIII of 1949) provides that where the landlord recovers possession of a house from a tenant on the ground that the house is bona fide required by him for purposes of repairs or rebuilding or for his own occupation or for the occupation of any person for whose benefit the house is held and the repairs of the re-building of the house is not commenced or the house is not occupied by the landlord or such person within fifteen days of the date of vacation of the house by such tenant, or the house having been so occupied is within six months of the said date relet to or allowed to be possessed by any other person, the Court shall on the application of the evicted tenant made within seven months of his vacating the house, direct the landlord to put the evicted tenant in possession of the house within such period as the. Court may fix. If by virtue of the expiry of the lease or for any other reason the plaintiff is unable to start re-building of the house within fifteen days of the dispossession of the defendant, the defendant is entitled under the section to ask for re-delivery of possession and thus from the expiry of the lease it cannot be said that the plaintiff did not bona fide require the house for repairs. Reliance is placed by Mr. Lahiri on the case of Neta Ram v. Jiwan Lal, reported in AIR 1963 SC 499, wherein it was held as follows:

“Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular Intention, however strongly, said to be entertained by him.”

43. We do not think that this case helps the appellants. All the surrounding circumstances were taken into consideration by the court below. It cannot be said that the plaintiff had no means to reconstruct the, house. It cannot be said that the condition of the house was such that it did not require reconstruction. In the result, therefore, we see no force in this appeal and it is dismissed with costs.

BI/HGP/D.V.C

44. Appeal dismissed.