1. 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 defendants Nos. 3 to 6 are joined as pro forma defendants as 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 2 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 Court of the Subordinate Judge. The suit was brought for ejectment of the defendants on the ground that the plaintiffs bona fide required the house to start their own business. Plaintiff No. 1 being the head 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 to do so. The defendants denied that the plaintiffs required the house for their own business and further contended that the plaintiffs waived the notice.

2. The trial court dismissed the suit on the ground that the house was not required bona fide by the plaintiffs and further that the notice had been waived.

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

4. Section 6 of the Assam Urban Areas Rent Control Act lays down the conditions under which a landlord can recover his house. Under S. 6(1)(c) a house can be recovered where it is bona fide required by the landlord for his own occupation or the occupation of any person for whose benefit the house is held. The expression ‘bona fide requirement’ is not the same thing as bona fide needs. The question whether the house is bona fide required by the plaintiffs is a question of fact and in second appeal the finding of the lower appellate court cannot be interfered with. It is not the convenience or otherwise of the defendants which has to be looked into.

5. If the plaintiffs bona fide require the house for their own use, no amount of inconvenience to the defendants will take away the plaintiffs' right to evict them. Cases where the landlord requires it for the purpose of letting it out on a higher rent, stand on a different footing and there it cannot be said that the landlord requires it for his own use but here it is found by the court of fact that the landlord requires it for his own use and the fact that it will cause inconvenience and hardship to the defendant is no ground for refusing the decree for ejectment.

6. So far as the question of waiver of the notice is concerned, the plaintiffs first served a notice on the defendants to vacate the house by 31-1-57. No suit was however, filed on the failure of the defendant to vacate the house and a second notice dated 21st July, 1958 was served on the defendants calling upon them to vacate the house by 31st August 1958. The plaintiffs accepted rents for September, October and November, 1958 and the suit was filed on the 6th December, 1958. The plaintiffs also took Rs. 25/- from the defendants in December, 1958. Exts. C, D and E show the receipt of the rent for the month of September, October and November 1958. Even after the termination of Page: 149the lease by notice the landlords have accepted rent. The question is whether from the circumstances 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.”

7. 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 subsisting 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.”

8. The acceptance of rent after expiry of the notice by itself may not constitute waiver. But it is an pet 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.

9. 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 plaintiff sued the appellant for ejectment on the allegation that she had purchased the interest of her brother and served a notice of attornment 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 the 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 appeal by the tenant was allowed on the finding that he 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 of Properly 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 it 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) or 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 eviction notwithstanding the fact that his tenancy has been effectively determined by a notice to quit under Section 106 of the 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). Accordingly the payment and acceptance of rent after the determination of the contractual tenancy does not unequivocally lead to the conclusion that the contractual tenancy has revived and cannot by itself prove waiver of notice to quit which is equivalent to the revival of the contractual tenancy. That why it has been said that some evidence to prove an agreement to revive the contractual tenancy is necessary to constitute a waiver under the different 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.”

10. Reference is made to earlier Calcutta decisions of ‘Panchanan v. Haridas*, AIR 1954 Cal 460 and ‘Mahadeo Prasad… v. Sm. 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 Property 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. Section 6 of the Act gives protection to the tenants from ejectment to certain ??? if they fail to they rent or if the land is recuired bona fide for the plaintiff the tenant's are not entitled to claim any protection under section 6. Even if the Page: 150plaintiff brings a suit for ejectment on the grounds mentioned in 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 plaintiffs 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.

IF/O/V.B.B

11. Appeal allowed.