This is defendants' appeal. Plaintiff-respondents brought a suit for ejectment of the contesting defendants. Plaintiffs Nos. 1 to 6 are the sons and plaintiff No. 7 is the widow of one late Syed Abdul Kadir. Defendants Nos. 1 and 2 are the principal defendants and defendant Nos 3 10 6 are joined as pro forma defendants ; they have some interest in the land whereon the suit house stands. Defendant No. 1 occupied the house in suit being holding No. 81 of the Jorhat Municipality and both the defendants Nos. 1 and carried on cloth business therein. The rent of the house was settled at Rs. 100/- per month by a compromise in Misc. Case No. 55 of 1952 in the Com of the Subordinate Judge. The suit was brought for ejectment of the defendants on the ground the plaintiffs bona fide required the house to star their own business. Plaintiff No. 1 being the hear of the family looks after the property of the family and he served a notice dated 21-7-58 asking the defendants to vacate the house but they refused do so. The defendants denied that the plaintiff required the house for their own business and there contended that the plaintiffs waived the notice

(2) The trial court dismissed the suit on the ground that the house was not required bona by the plaintiffs and further that the notice beer, waived.

(3) On appeal the lower appellate court held that the house was bona fide required by the plaintiffs for their own use and that the notice not been waived.

(4) Section 6 of the Assam Urban Areas Re Control Act lays down the conditions under which a landlord can recover his house. Under S. 6(1 a house can be recovered where it is bona fide required by the landlord for his own occupation i the occupation of any person for whose benefit t house is held. The expression 'bona fide requirement' is not the same thing as bona fide need The question whether the house is bona fide required by the plaintiffs is a question of fact an in second appeal the finding of the lower appellant court cannot be interfered with. It is not the convenience or otherwise of the defendants which I to be looked into. If the plaintiffs bona fide i quire the house for their own use, no amount inconvenience to the defendants will take away 1 plaintiffs' right to evict them. Cases where II landlord requires it for the purpose of letting out on a higher rent, stand on a different fooled and there it cannot be said that the landlord requires it for his own use but here it is found t the court of fact that the landlord requires it f; his own use and the fact that it will cause inconvenience and hardship to the defendant is no grout for refusing the decree for ejectment.

(5) So far as the question of waiver of IS notice is concerned, the plaintiffs first served notice on the defendants to vacate the house t 31-1-57. No suit was however, filed on the failed of the defendant to vacate the house and a second notice dated 21st July, 1958 was served on tm defendants calling upon them to vacate the hoi by 31st August 1958. The plaintiffs accepted re for September, October and November. 1958 i the suit was filed on the 6th December, 1958. The plaintiffs also took Rs. 25/- from the defendant; December, 1958. Exts. C. D and E show the recall of the rent for the month of September, October and November 1958. Even after the termination the lease by notice the landlords have accepted rent. The question is whether from the circumsta nces it can be inferred that the landlords waived the notice of ejectment. section 113 of the Transfer of Property Act provides 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."

The notice can be waived 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 sub sisting can be shown by any act of the lessor. The illustrations to the section 113 says:

"(a) 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.

(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." The acceptance of rent after expiry of the notice by itself may not 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. In the present case the landlords not only accepted one month's rent after the expiry of the term of the lease but for three successive months they accepted rent. This act of the lessors also shows that the plaintiffs intended to waive the notice.

(6) The court below has relied upon the case reported in Pulin Behary Shaw v. Miss Lila Dey, (S) AIR 1957 Cal 627. In this case the appellant was a monthly tenant under one Amulya Ranjan Dey brother of the plaintiff respondent. The plain tiff sued the appellant for ejectment on the allega tion that she had purchased the interest of her brother and served a notice of atonement and had determined the defendant's tenancy by a notice to quit. The plaintiff asserted in that case that the defendant was not entitled to the protection of the Rent Control Act because the plaintiff reasonably required the room for her occupation and also for building a. stair-case. It was also alleged by (he plaintiff that the defendant was a defaulter. All the courts disbelieved the plaintiff's case of bona fide requirement and the only question raised was whether the defendant was a defaulter. The suit was dismissed by the trial court on the finding that the defendant was not a defaulter and further that the notice had not been proved and the plaintiff had waived the notice to quit by accepting rent. On appeal the Special Bench of the court of Small Causes reversed this ^decision which was affirmed in appeal by a single Judge and Letters Patent appeal was filed against the order of the single Judge. This anneal by the tenant was allowed on the finding that be was not a defaulter. As to the question of waiver it was held that there was no waiver.

Dealing with section 113 of the Transfer o Pro perty Act, the learned Judges observed as follows:

"There is no doubt that the facts of the present case are exactly similar to the facts in illustration (a) and if we were to decide the case upon the Transfer of. Property Act alone we would be bound to hold that there was a waiver; but the question that requires consideration is whether the West Bengal Premises Rent Control Act (1950) has made any difference to the rights of the parties. I have no doubt in my mind that it has. Section 12(1) 01 the Act has imposed a bar to the eviction of the tenant unless the landlord is able to bring the case within one of the nine clauses mentioned in the proviso. So long as this bar subsists the tenant is entitled to a statutory protection against the evic tion notwithstanding the fact that his tenancy has been effectively determined by a notice to quit under Sec. 106, Transfer of Property Act. This statutory right of the tenant to remain on the demised premises even after the determination of his contractual tenancy has been described in some decided cases as a statutory tenancy. If therefore there has been payment and acceptance of rent after the determination of the contractual tenancy such payment and acceptance may be attributed either to the contractual tenancy or to the statutory tenancy brought into existence by Sec. 12(1). Accor dingly the payment and acceptance of rent after the determination of the contractual tenancy does not unequivocally lead to the conclusion that the con tractual tenancy has revived and cannot by itself prove waiver of notice to quit which is equivalent to the revival of the contractual tenancy. That r why it has been1 said that some evidence to prove an agreement to revive the contractual tenancy is necessary to constitute a waiver under the diffe rent Rent Control Acts and that is why it has been said that after the Rent Control Acts have come into operation mere payment and acceptance of rent are not sufficient by themselves to constitute waiver of notice to quit."

Reference is made to earlier Calcutta decisions of 'Panchanan v. Haridas', AIR 1954 Cal 460 and 'Mahadeo Prasad v. Sulekha Sarkar', AIR 1954 Cal 404. This decision is based on the reasoning that under the provisions of the West Bengal Premises Rent Control Act after the expiry of the period of notice a statutory tenancy comes into existence and thus any subsequent payment is attributable to the statutory tenancy and may not necessarily lead to an inference that the lessor intended to waive his notice. In this case the rent was sent through money order. Nothing has been pointed out in the Assam Urban Areas Rent Control Act which will suggest that any statutory tenancy comes into existence after the giving of notice and that the provisions of section 113 of the Transfer of Pro perty Act have been modified by this enactment. The word 'tenant' has been defined to include the persons whose tenancy has been terminated by the notice and they continue in possession. Sec tion 6 of the Act gives protection to the tenants from eiectment. The certain circumcises if they fail to pay rent or of the land is required bona fide for the plaintiff. the tenants are not entitled to claim any protection under section 6. Even if the plaintiff brings a suit for ejectment on the grounds mentioned m section 6 still he has to give a notice to terminate the tenancy and the provisions of the Transfer of Property Act are attracted. If after the service of notice the plaintiff accepts rent, section 113 of the Transfer of Property Act will, in my opinion, be attracted. The Calcutta case is thus distinguishable on facts. In the present case the conduct of the plaintiff in accepting rent for three successive months and further taking a loan of Rs. 25/- from the defendants is sufficient to give rise to an inference that the plaintiffs intended to waive the notice. Their past conduct in giving notice earlier for ejectment and thereafter not bringing any suit and accepting rent and giving fresh notice also goes to show that when the plain tiffs accepted rent after giving notice they intended to continue the tenancy and waive the notice. In my opinion therefore the defendant has succeeded in proving that the plaintiffs have waived their notice and the appeal is allowed. The decree of the lower appellate court is set aside and that of the trial court is restored. But in the circumstances the parties will bear their own costs in this Court as the appellants have not succeeded on the other point.

Appeal allowed..