JUDGMENT Sharpe, J. - This appeal arises out of a suit brought by the plaintiff, the Province of Bengal, for ejectment of the defendants from a property known as the Akra Brick Field in the 24 Parganas district, for mesne profits and damages, and for a permanent injunction restraining the defendants from removing bricks, coal, tools and plant specified in Sch. C to the plaint. 2. The Brick Field was leased to the Karnani Industrial Bank Ltd., defendant 1 by a registered indenture, Ex. 3 dated 17th February 1928. The lease was for a term of ten years from 24th February 1928, and the rent reserved was Rs. 6000 per annum, payable in advance. The property was leased specifically for use as a Brick Field or Brick Factory, and the lessee was prohibited from assigning or sub-letting the premises or any part thereof without the consent previously obtained of the Secretary of State, except in the case of a limited company. The demised property included certain buildings, roads, bridges, embankments and sluices and one of the conditions to be observed by the lessee was that he should at his own cost maintain the buildings, roads, bridges etc. in a state of repair and working order, to the satisfaction of the executive engineer, Second Calcutta Division, and in case of failure to do so the Secretary of State would have a right of re-entry, without prejudice to the general right of re-entry contained in the lease on account of any breach or non-observance of any of the covenants contained in parts I and n of the Schedule. The lease contained a general provision that the lessee would at the expiration or sooner determination of the term of the lease yield up the demised premises in as good condition as at the date of the lease, reasonable wear and tear, and damage by cyclones, storm, floods, etc. alone excepted. At the time of execution of the lease, the lessee purchased from the lessor for Rs. 50,000 all the Boilers, Engines, Trucks, Kilns, Railway and Tramway Lines, and all other movable property plant and machinery in the demised premises, and one of the conditions imposed on the lessee by para. alone excepted. At the time of execution of the lease, the lessee purchased from the lessor for Rs. 50,000 all the Boilers, Engines, Trucks, Kilns, Railway and Tramway Lines, and all other movable property plant and machinery in the demised premises, and one of the conditions imposed on the lessee by para. 11 of Part I of the Schedule was that he Shall before the expiration or prior termination of the lease hereby granted remove his boilers, engines, bricks, kilns, railway and tram lines, bricks, tools and plant and all other materials whatsoever and yield up the said demised premises unto the Secretary of State and that those bricks, tools and plant and other materials that shall not be removed before such expiration or prior termination shall become the property of the Secretary of State. This condition was however modified by condition 1 of Part III of the schedule which provided that: The lessee shall be at liberty to keep on the said premises hereby demised for three months after the expiration or prior termination of the term of this lease any bricks, boilers, engines, trucks, kilos, railway and tram lines and all other material whatsoever as may have been manufactured by him in the premises in accordance with the conditions of these presents, but any bricks and other materials left in contravention to this condition shall become the absolute property of the Secretary of State without payment. 3. According to the case disclosed in the plaint, defendant 1 in contravention of the terms of the lease, sub-let the Brick Field to defendants 2-18 and defendant 1 and the other defendants caused serious damage to the brick field in general, and failed to maintain the embankments, sluices, roads, etc., in proper repair, resulting in a total loss, specified in Sch. E, amounting to Rs. 16,840. It was further alleged that on the termination of the lease by efflux of time, defendant 1 refused to deliver possession and that the defendants had not removed the bricks, Pug Mills and other materials specified in Sch. C within 3 months from the termination of the lease Consequently the plaintiff asked for the following reliefs: (a) A decree for ejectment and khas possession against all the defendants. (b) Damages of Rs. C within 3 months from the termination of the lease Consequently the plaintiff asked for the following reliefs: (a) A decree for ejectment and khas possession against all the defendants. (b) Damages of Rs. 4000 for the period between the termination of the lease and the institution of the suit on 18th November 1938 and mesne profits for the subsequent period. (c) A decree for Rs. 16,840 for damages, as specified in Sch. B. (d) A decree for permanent injunction restraining the defendants from removing or otherwise disposing of the articles in accordance with para. 10 of the plaint. 4. The suit was contested by defendants 1-17. Their main defences were that the suit was bad for misjoinder of parties and causes of action, that it was barred by principles of estoppel, waiver and acquiescence, that the lease was governed by the Bengal Tenancy Act and not the Transfer of Property Act, that defendant 1 had acquired a permanent tenancy right, that even if the tenancy was governed by the Transfer of Property Act, defendant 1 held over with the consent of the plaintiff and the lease had not been validly terminated, that no damage had been caused to the brick field, that the embankments, sluices, roads, etc., were kept in as good a state of repair as possible, that the defendants were not required to remove bricks, Pug Mills, etc., that the said terms were illegal and penal and the plaintiff was not entitled to forfeit them, that the prayer for injunction was inappropriate and could not be granted without a prayer for possession, and consequently that the plaintiff was not entitled to any relief. 5. On the pleadings, the following issues were framed: 1. Is the suit barred for misjoinder of parties and causes of action? 2. Is the suit barred by the principles of estoppel, waiver and acquiescence? 3. Is the tenancy of the disputed land under the plaintiff governed by the Bengal Tenancy Act or by the Transfer of Property Act? Has the lease of the defendant been validly terminated and was he entitled to a notice under S. 106, T.P. Act? 4. Is the covenant mentioned in para. 4(b) of the plaint penal and enforceable in law? Is defendant 1 entitled to remove the Pug Mills, Kilns, Bricks, etc., from the field in dispute? Has the lease of the defendant been validly terminated and was he entitled to a notice under S. 106, T.P. Act? 4. Is the covenant mentioned in para. 4(b) of the plaint penal and enforceable in law? Is defendant 1 entitled to remove the Pug Mills, Kilns, Bricks, etc., from the field in dispute? Is the plaintiff entitled to an injunction restraining defendant 1 from removing these properties in the absence of a prayer for declaration of title to and for possession of the said properties? 5. Is the plaintiff entitled to damages? If so, how much? Was any injury caused to the plaintiff by defendant 1? Is defendant 1 responsible for damages, if any, caused by defendants 2-17? Is it possible to estimate separately the damages after the institution of the suit and before the suit? If not, can the plaintiff get any relief? 6. To what relief, if any, is the plaintiff entitled? 6. The first two issues were answered in the negative by the learned Subordinate Judge and as the correctness of those decisions has not been assailed at the time of argument, we need only say that we agree with his decisions of them. 7. The main issue in the suit is No. 3. In answering that issue the learned Subordinate Judge held that the lease in question was governed by the Transfer of Property Act and that the Bengal Tenancy Act had no application to it. This part of his decision was not questioned before us, and the arguments advanced were directed towards refuting his decision that there was no holding over by the lessee in this case with the assent of the landlord, that the defendants were not therefore entitled to any notice under S. 106, T.P. Act, and that consequently the lease had validly terminated on 23rd February 1938 by efflux of time. In order to appreciate his decision on these questions, it will be desirable at this stage to state some further facts. 8. As already mentioned, the lease was for a period of ten years from 24th February 1928 and the annual rent payable in advance was Rs. 6,000. Rent was duly paid for the first year in February 1928 and for some reason, which is not material, rent was paid in February 1929 for the period 17th February 1929 to 31st March 1930 a sum of Rs. 6714-4-9. 6,000. Rent was duly paid for the first year in February 1928 and for some reason, which is not material, rent was paid in February 1929 for the period 17th February 1929 to 31st March 1930 a sum of Rs. 6714-4-9. Kent for subsequent years was paid at the rate of Rs. 6,000 up to 31st March of each year. The last payment was made in April 1987, a sum of Rs. 6,000. The entry in the cash book under the head "From whom received" was to the following effect: Received without prejudice from the Karnani Industrial Bank Ltd. on account of yearly rent of Akra Brick Field for the year ending 31st March 1938. On the basis of these facts, it was contended by the defendants that rent had been accepted by the plaintiff for a period after the termination of the lease which was to expire on 23rd February 1938 and as they had remained in possession, there was "holding over" as contemplated by S. 116, T.P. Act, and, consequently, the lease could be terminated only by service of a notice in accordance with the provisions of S. 106 of that Act. The learned Subordinate Judge after reviewing the evidence relating to the payment of rent held that there had been no assent on the part of the plaintiff to the defendant's continuing in possession. In this view, both parties were totally forgetful of the fact that the lease was to terminate on 23rd February 1938 when the payment (in April 1937) was made and the acceptance of the rent under these circumstances by the plaintiff did not, therefore, amount to an assent as contemplated by S. 116, T.P. Act. In his opinion, it was permissible for the plaintiff to show that the rent for the period after lease had terminated was accepted in ignorance in order to rebut the presumption of assent which such payment might otherwise have justified. He held that this was in fact the real position and in consequence that there was no "holding over" so that the defendants were not entitled to any notice under S. 106 as claimed by them. It is this conclusion on law and facts which has been mainly criticised by the appellant before us. 9. The 4th issue was decided against the plaintiff, and there is a cross objection in regard to his decision on the question involved. It is this conclusion on law and facts which has been mainly criticised by the appellant before us. 9. The 4th issue was decided against the plaintiff, and there is a cross objection in regard to his decision on the question involved. The main relief in relation to which this issue was framed was the prayer for permanent injunction. The learned Subordinate Judge held that this relief could not be granted, since there was no prayer for recovery of possession of the property which the plaintiff sought to restrain the defendants from removing, Apart from that aspect of the matter, he was further of opinion that, on, a construction of the relevant terms of the lease, viz. the forfeiture clause contained in para 11 of part I as modified by para. 1 of part III of the conditions quoted above the words "other materials" did not mean any materials other than the things which might have been manufactured on the land and did not include any machinery used for such manufacturing purposes. 10. Issue No. 5 was answered partly in favour of the plaintiff and partly in favour of the defendants. The prayer for damages of the nature and amount specified in Sch. B was refused, mainly on the ground that the evidence was not sufficient to establish the amount of the damage, and that the plaintiff's right to recover damages under the lease did not arise until the necessary repairs had been executed by the plaintiff and could not be based, as in the plaint, on an estimate of their probable cost. The plaintiff preferred a cross-objection in regard to this portion of the decision but at the time of argument it was frankly conceded by the learned Government Pleader that this claim could not be substantiated on the evidence which had been adduced. The other portion of the claim for damages or mesne profits was allowed, viz., for the period between the expiration of the lease on 23rd February 1938, up to the date of the institution of the suit on 18th November 1938, an amount of Rs. 4,000 based on the annual rent of Rs. 6,000 and mesne profits for the period between the date of institution and the date of his being put into possession, an amount which it was directed should be determined by a commissioner to be appointed in that behalf. 11. 4,000 based on the annual rent of Rs. 6,000 and mesne profits for the period between the date of institution and the date of his being put into possession, an amount which it was directed should be determined by a commissioner to be appointed in that behalf. 11. In the result, therefore, the learned Subordinate Judge gave the plaintiff a decree for ejectment of the defendants from the suit property and for khas possession and mesne profits, but dismissed the prayers for damages and for permanent injunction. He also disallowed the plaintiff's claim that the Kilns Pug Mills, Bricks etc. remaining in the demised premises had been forfeited to Government under the terms of the lease on the expiry of 3 months from the date of its termination, or by the expiry of 30th September 1938 to which date the period of removal was extended as a matter of grace, and allowed the defendants 3 months time to remove their belongings from the Brick Fields, including Kilns Pug Mills, Bricks, etc. Defendant 1 has now appealed against the decree for ejectment, khas possession and mesne profits, whilst the plaintiff respondent has filed cross-objections against that part of the decree which dismissed the claim for damages and permanent injunction and allowed the defendants time for removal of their belongings. 12. As already stated, the arguments advanced, on behalf of the appellant defendant 1 of the lower Court, were directed mainly against the decision of that Court that there was no "holding over" so as to require the service of notice on the defendants under the provisions of S. 106, T.P. Act, for valid termination of the lease. The arguments were divided into three branches, which were that the decision of the Subordinate Judge was erroneous because, (1) it was based on a case which had not been advanced by either of the parties, (2) "holding over" was established both by the evidence and the admission of the plaintiff, and (3) the view that acceptance of rent raised only a rebuttable presumption of assent was an incorrect interpretation of S. 116 and of the law of India applicable to the question. We propose to deal with the first two contentions jointly. 13. We propose to deal with the first two contentions jointly. 13. The case for the plaintiff, as disclosed in the plaint, was briefly that defendant 1 had taken lease of the Akra Brick Field for a period of 10 years commencing from 24th February 1928 at an annual rent of Rs. 6000 that when the lease terminated by efflux of time the plaintiff's officer demanded vacant possession which was refused and that the cause of action had arisen on the termination of the lease in February 1938. No reference was made to and no explanation was given for the fact that rent, after the first year's payment, was paid annually up to 31st March of each year. In his written statement, defendant 1 apart from asserting that the plaintiff was entitled to no relief, did not dispute the facts already stated, but, in para. 14, claimed that if the tenancy was held to be governed by the T.P. Act, he had held over with consent of the landlord and so could not be ejected without a proper notice to quit. The hearing of the suit on these pleadings commenced on 5th August 1941 and was continued on a number of days, with various adjournments granted to the parties to effect a compromise. Evidence was closed on 17th September 1941, and the case adjourned to 30th Oct. 1941 for arguments. On 27th Oct. 1941 defendant 1 applied for the reception in evidence of certain additional documents, and the prayer was allowed. On 30th Sept. 1941, D.W. 4 was examined for the defendants and proved the cheque Ex. C, by which the last rent was paid in April 1937. An adjournment was then granted till 6th November 1941 to enable the plaintiff to adduce rebutting evidence. On 6th November, the plaintiff filed a petition supported by affidavit asking for amendment of the plaint. This prayer was refused, as in the opinion of the Court, the amendment as sought would change the entire foundation of the suit, and could not be allowed at that stage. In rejecting the petition, the learned Subordinate Judge noted in the order sheet (order No. 226 dated 6th November 1941). This prayer was refused, as in the opinion of the Court, the amendment as sought would change the entire foundation of the suit, and could not be allowed at that stage. In rejecting the petition, the learned Subordinate Judge noted in the order sheet (order No. 226 dated 6th November 1941). The main object of the petition is to meet the evidence of holding over as introduced by the documents filed by the defendant on 27th October 1941 and the matter that the plaintiff would like to press under the amendment may be brought in by the rebutting evidence already called for. On that date, D.W. 2 was recalled and proved documents Exs. C(1), A(10), and A(11), P.W. 3 was also examined and proved documents Exs. 4 to 4(g) for the plaintiff. These documents and Ex. C formed the main evidence for and against the claim of "holding over". 14. Although the petition for amendment of the plaint was rejected, we think it necessary to refer to it in some detail because a major portion of the argument which sought to disturb the findings of the learned lower Court was based upon it. In paras. 1 and 2, the facts, already narrated relating to the giving of additional evidence were set forth. Paragraph 4 of the petition was as follows: That thereafter your petitioner's lawyer sent for all the relevant records including the cash books of the Executive Engineer's office from the time of the inception of the tenancy and it appears that in the year 1929 defendant 1 made an extra payment of a sum over and above Rs. 6000 to have a year of the tenancy coincide with the official financial year and defendant 1 has been ever since paying an annual rental on the footing that the year of the tenancy commenced from 1st April till 31st March of the following year. In view of these facts, it was prayed that the plaint should be amended by adding a new paragraph after para. 11 of the plaint in the following terms: 11-A. That although the lease commenced on 24th February 1928 the plaintiff and defendant 1, agreed to treat a year of the tenancy in accordance with the financial year, that is to say, from 1st April to 31st March of the following year. 11 of the plaint in the following terms: 11-A. That although the lease commenced on 24th February 1928 the plaintiff and defendant 1, agreed to treat a year of the tenancy in accordance with the financial year, that is to say, from 1st April to 31st March of the following year. Defendant 1 made payment from 1929 in accordance with the financial year and the plaintiff also accepted the same by granting receipts. The last of such payments was made by defendant 1, by a cheque dated 1st April 1937 from 1st April 1937, up to 31st March 1938. The plaintiff submits that the tenancy thus terminated on 31st March 1938. Alternatively, the plaintiff submits that even assuming that the registered lease terminated on 23rd February 1938 by an agreement between the plaintiff and defendant 1 the latter was allowed to bold over up to 31st March 1938. 15. On behalf of the appellant it was contended that the above paragraphs contained admissions by the plaintiff that defendant 1 had continued in possession up to 3lst March 1938 with the assent of the plaintiff, and that there was holding over as contemplated by S. 116, T.P. Act. We do not think this contention can be accepted. It was strenuously urged by the learned advocate for the Appellant that the year of the tenancy could not be altered by an agreement of the nature suggested, because the alteration of a material term of the lease could not be effected without registration, and we accept this proposition. The prayer for amendment of the plaint was moreover rejected, and consequently the statements which it was sought to introduce do not form any part of the pleadings. The cases which were set forth in the petition for amendment were mere submissions based on the fact that in the year 1929 an extra payment had been made, so that rent was thereafter paid for the official financial year commencing from 1st April up to the 31st March following, and we cannot agree that there was any admission of receipt of rent for a period after the termination of the lease. The question whether there was in fact "holding over" falls therefore to be decided on the pleadings as they stand without amendment, and the evidence adduced by the parties. 16. The question whether there was in fact "holding over" falls therefore to be decided on the pleadings as they stand without amendment, and the evidence adduced by the parties. 16. It is true that the parties did not specifically claim as has been found by the learned lower Court to be the real state of affairs, that the rent was paid in April 1937 and accepted in forgetfulness of the fact that the lease was to terminate on 23rd February, though we think there may be some justification for the view that such was substantially the case. The relevant evidence, apart from a statement of D.W. 2, the Secretary of the defendant Bank, whom we cannot regard as an independent or reliable witness, is entirely documentary. The statement of D.W. 2 was that "we were allowed to hold over after expiry of the lease, pending consideration of our petition for renewal of the lease" and is belied by defendant's own documents. The first is a letter Ex. A(5) dated 23rd August 1937 i.e., six months prior to the date of the expiration of the lease Ex. 3 and it contained a prayer for renewal of the lease for a further period of ten years. Exhibit A(4) is a reminder, dated 23rd October 1937. A second reminder was sent by letter, Ex. A (3) dated 8th November 1937. No answer was given to any of these letters, but on 21st February 1938, the Executive Engineer, Suburban Division, sent a letter Ex. A(9) to the Assistant Engineer, No. III Division, instructing him to make arrangements with the Karnani Industrial Bank Ltd., to take over vacant possession of the Akra Brick Fields on 24th February, as the lease with the Bank would expire on 23rd February according to the terms of the agreement. A copy of this letter was forwarded to the Bank by the Assistant Engineer on 23rd February, intimating that the Brick Fields would be taken over on 24th February at 11 A.M. On 24th February, the Assistant Engineer addressed the Karnani Bank Ltd., by letter, Ex. A(8) intimating that no one had attended on 24th instant to make over possession as arranged, enquiring what arrangement was being made to make over possession, and stating that the term of the lease expired on the afternoon of 23rd February 1938. The reply of the Defendant Bank is letter Ex. A(8) intimating that no one had attended on 24th instant to make over possession as arranged, enquiring what arrangement was being made to make over possession, and stating that the term of the lease expired on the afternoon of 23rd February 1938. The reply of the Defendant Bank is letter Ex. A(2) dated 3rd March 1938. In it, the position taken was that the Bank had applied for renewal of the lease on 23rd August 1937, six months before the date of its expiration, and when, despite reminders, no answer had been given, a representative (unnamed) saw someone (unnamed) and was given to understand that the lease would be renewed, in these circumstances, as this Bank was in possession, it was believed the lease would be renewed, and consequently no steps had been taken for dismantling the brick kilns and removal of other articles, so it was prayed that if Government was not inclined to renew the lease, time should be granted till the end of December 1938 for dismantling and removal of their property. Receipt of this letter was acknowledged by letter Ex. A(7) dated 17th March 1938 in which it was stated that it was not the intention of Government to lease out the Brick fields, and the Bank was again requested to make over vacant possession to the Sub-Divisional Officer, III sub-division. It was however intimated that the letter under reply had been forwarded to the Superintending Engineer, Presidency Circle, for necessary orders. The final orders of Government were communicated to the Bank by letter Ex-A(6), dated 14th September 1938. In it, the decision of Government was reiterated, and it was pointed out that under the lease if no notice to take over the kilns-was given or price paid, the lessee might remove them, for which purpose 3 months' time was allowed after expiration of the lease. It was further noted that the lessee was holding over without the assent of Government and had had sufficient time for dismantling the kilns and removing materials but that Government would, as a matter of grace allow time till 30th September 1938 for that purpose and would take over possession on that date. 17. It is, we think, quite clear from this correspondence that both parties believed and accepted the position that the lease terminated by efflux of time on 23rd February 1938. 17. It is, we think, quite clear from this correspondence that both parties believed and accepted the position that the lease terminated by efflux of time on 23rd February 1938. No other conclusion is in our opinion possible on the facts, and we hold that it was so terminated. There was no suggestion anywhere that the period of the lease had been extended or that the lessee was continuing in possession with the assent of the landlords. That the lessee continued in possession cannot of course be disputed, but that possession was plainly not only without the consent of the lessors but against their express desire. It did not evidently occur to the lessee at that stage that he had any tight to continue, or that the lessor had at all assented to the continuance. Even in the letter, Ex. A(1), dated 26th March 1938 written by the defendant Bank after receipt of letter, Ex. A(7), referred to above, the only contention was that there was no reason why the prayer for extension of time up till 31st December 1938 should not be granted for delivery of possession. Such being our view in regard to the termination of the lease, and the circumstances under which the lessee continued in possession, there remains for consideration the evidence in regard to the payment of rent, which, as already noted, was paid from 1929 onwards for the period 1st April to 31st March of each year. In particular we are concerned with the last payment in April 1937, and the question whether it can be held that rent was accepted up to 31st March 1938. 18. The last instalment of rent was paid by cheque Ex-C, dated 1st April 1937. It was for a sum of Rs. 6000/- and was forwarded to the Executive Engineer by letter, Ex-A(10), dated 1st April 1937 which read as follows: We beg to enclose herewith a cheque for Rs. 6000/- in payment of rent of Akra Brick Fields for the year 1937-38 ending 31st March 1938 and shall thank you to please favour us with your formal receipt for the above and oblige. As noted previously, the amount of this cheque was entered in the Cash Book of the Executive Engineer for the month of May 1937 by entry Ex. As noted previously, the amount of this cheque was entered in the Cash Book of the Executive Engineer for the month of May 1937 by entry Ex. 4(g) as received "without prejudice" on account of the yearly rent of Akra Brick Field for the year ending 31st March 1938. As the entry shows that the amount was "received without prejudice" it cannot, in our opinion, be admitted in evidence to the detriment of the plaintiff. On behalf of the appellant it was urged that there was no evidence that the reservation in regard to the receipt was communicated to him, and before the conclusion of the arguments, a petition was filed by the respondent for the reception in evidence of the counterfoil of the receipt granted to the appellant on account of this payment, as on notice, the appellant had failed to produce the original receipt granted to him. The prayer was opposed by the appellant who in a counter affidavit, stated that the original receipt cannot be traced and that the counterfoil should not now be received in evidence since no steps were taken for its production in the lower Court. In case however, it should be accepted, it was prayed that the Ledger Accounts for the years 1929-38 should be produced by the respondent for the purpose of showing how the amount of Rs. 6000/- was appropriated. In the affidavit in reply it was alleged on behalf of the respondent that no ledger accounts were maintained in respect of receipt of rent, and that the appropriate register of rents and lands for 1929-38 had been destroyed in accordance with the rules. In these circumstances, we think the prayer for receipt in evidence of the counterfoil should be refused. In our opinion, however, there are sufficient materials on which to hold that the fact of receipt "without prejudice" of the amount of Rs. 6000/- was communicated to the lessee. In column 2 of the Cash Book entry Ex. 4(g), which is headed "No. of voucher or receipt in form" is the number 71, and as the cash book is an official record, kept in the regular course of business, we see no reason to suppose that a receipt bearing that number was not officially granted. In the corresponding entry for receipt of rent for the year ending 31st March 1937, the number 25' was entered in col. In the corresponding entry for receipt of rent for the year ending 31st March 1937, the number 25' was entered in col. 2, and receipt No. 25 was sent to the appellant Bank with the letter Ex. A(11) dated 12th May 1936. It has not been denied that a receipt was granted or that it was received, and we have no doubt that if a clear receipt had been given it would have been produced in evidence. In view of these facts, we think it would be a fair and reasonable inference that a receipt was granted for the payment of the sum of Rs. 6000 in April 1937 in the same terms as the entry in the cash book of May 1937. We are therefore of opinion that the entry which shows receipt of rent 'without prejudice' is inadmissible in evidence, and, that being so, there is no proof that Rs. 6000 was accepted as rent. It follows therefore that the facts necessary to constitute 'holding over' according to S. 116, T.P. Act, have not been established, and as, in our view, the lease validly terminated by efflux of time on 23rd February 1938, the decision of the learned Subordinate Judge in so far as it relates to ejectment and khas possession and for mesne profits must be upheld. 19. In the view we have taken it is not necessary for us to express any positive opinion with regard to the interpretation of S. 116, T.P. Act, on which the conclusion of the learned lower Court was based. We may, however, say that we think there is some force in the argument that acceptance of rent, as in the present case, long before the expiry of the lease, raises only a presumption of assent which may be rebutted by cogent evidence. Section 116 lays down the conditions which require to be satisfied in order that a lease should be renewed from month to month or from year to year. They are: (1) the lessee remains in possession of the demised property and (2) the lessor accepts rent or otherwise assents to his continuing in possession. The use of the words "otherwise assents" denotes in our opinion that the acceptance of rent is only a fact from which assent may be inferred or presumed. They are: (1) the lessee remains in possession of the demised property and (2) the lessor accepts rent or otherwise assents to his continuing in possession. The use of the words "otherwise assents" denotes in our opinion that the acceptance of rent is only a fact from which assent may be inferred or presumed. We need not for our present purpose consider whether acceptance of rent after the termination of the lease would be conclusive in regard to the question of assent, but where, as in the case now before us, the lessee clearly remains in possession against the will of the lessor, and the rent, if at all accepted, was accepted long before the determination of the lease, we think it would be unreasonable to suppose that such acceptance will amount to conclusive proof of assent to his continuing in possession, and that it would be open to the lessor to show that in fact there was no assent. On the facts of the present case, we think in agreement with the learned Subordinate Judge that if there was any acceptance of rent for a period subsequent to the determination of the lease, a fact which we hold not to be proved, it was accepted in forgetfulness of the fact that the lease would terminate on 23rd February 1938, and that the question whether rent was being paid or was at all payable from that date up to 31st March 1938 was not considered by the lessor or the lessee. Having regard however to our conclusion as to acceptance of rent, we do not think it necessary to pursue this aspect of the matter further. 20. We turn now to the cross-objection of the respondent, and may note that the claim for damages as set forth in Sch. B of the plaint, was not, as already stated, pressed at the time of hearing. We are satisfied that the view taken by the learned lower Court and his decision in regard to that matter are correct and so the cross-objection must be dismissed in so far as it related to the claim for such damages. 21. B of the plaint, was not, as already stated, pressed at the time of hearing. We are satisfied that the view taken by the learned lower Court and his decision in regard to that matter are correct and so the cross-objection must be dismissed in so far as it related to the claim for such damages. 21. The main arguments of the learned advocate for the respondent were that the prayer for permanent injunction should not have been refused on the ground that the appropriate remedy would have been to have sued for declaration of title and recovery of possession, and that the view taken by the Subordinate Judge was erroneous of the interpretation and effect of the forfeiture clauses of the lease. It was in a way conceded that the prayers were somewhat defective, but it was contended that the additional prayers were not essential firstly in regard to the Bricks, because by an agreement between the plaintiff and the interested defendants 2-15 and 17 at the time of appointment of a Receiver Rs. 2 per 1000 Bricks sold was deposited in Court for disposal in accordance with the result of the litigation, and secondly in regard to Pug Mills, Kilns, Tools and plant, because these had been forfeited and could not be removed after the expiration of the periods provided by the lease, so that the prayer for khas possession of the Brick Fields was sufficiently efficacious as the plaintiff would obtain possession of these things along with the Brick Fields. It was also contended that the decision Jahar Lal v. Nanda Lal 18 C.W.N. 545 : (A.I.R. 1915 Cal. 23) on which the learned lower Court relied was based on facts quite distinct from those of the present case, and that it did not support the view which he took. 22. For the appellant, Dr. Sen Gupta supported the view of the lower Court as to the necessity of prayers for declaration of title and recovery of possession. Section 108(h), T.P. Act, confers, he maintained, sufficient authority for the removal of property by the lessee after determination of the lease and whilst he remains in possession, in the absence of a contract to the contrary, and even if there was such a contract in the lease, it was by way of penalty, entitling the plaintiff only to reasonable compensation for breach thereof. It was also contended that the conditions as to forfeiture had been waived. 23. In order to appreciate these contentions and for the proper disposal of the cross-objection, it is necessary to examine the special provisions of the lease on which they are based, In para. 4 of the conditions of the lease, it was provided that the lessee shall at the expiration of the term hereby granted leave the said lands and premises hereby demised and (provided the Secretary of State shall at least sis months before the termination of the lease give notice of his desire to take over the Kilns and shall pay to the lessee the sum of Rupees twenty thousand) all brick kilns thereon in such order and condition as aforesaid (reasonable wear and tear being excepted) and so that no undue hindrance shall be caused to an incoming tenant in the future working of the said factory, provided if no such notices to take over the said kilns shall be given as aforesaid or such price paid as aforesaid, the lessee may remove the kilns. 24. By para. 11 of part I, it was agreed that the lessee shall, before the expiration or prior termination of the lease hereby granted, remove his boilers, engines, brick kilns, railway and tram lines, bricks, tools and plant and all other materials whatsoever and yield up the said demise premises unto the Secretary of State and that those bricks, tools and plant and other materials that shall not be removed before such expiration or prior termination shall become the property of the Secretary of State. Paragraph 1 of Part III of the conditions to be observed by the lessee contained further provisions in the following terms: The lessee shall be at liberty to keep on the said premises hereby demised for three months after the expiration or prior termination of the term of this lease, any bricks, boilers, engines, trucks, kilns, railway and tram lines and all other material whatsoever as may have been manufactured by him in the premises in accordance with the conditions of these presents but any bricks and other materials left in contravention to this condition shall become the absolute property of the Secretary of State without payment. 25. 25. Paragraph 2 of part III of the conditions, contained certain other provisions in regard to disposal of tools, plant and materials on the demised premises in the event of re-entry by the Secretary of State, and for payment to the lessee of any balance remaining after the sale or other disposal by the Secretary of State and defraying the costs of the sale and other claims against the lessee, but these provisions have not, in our opinion, any application to the present situation which is not a case of re-entry as provided for in the lease but of obtaining possession of the demised premises on the expiration of its term. 26. According to the learned lower Court, the only items of property to be forfeited under the above-mentioned conditions of para. 11 of Part I, as modified by para. 1 of Part III, on failure to remove before the expiration of the lease or within three months of such expiration, were the 'bricks and other materials' and 'other materials' did not, in his view, include machinery used for manufacturing purposes. In his view, too, there was no evidence of the quantity of bricks that remained on the disputed land at the close of three months after expiry of the lease, and so he held that the forfeiture clauses were not attracted and the question whether the agreement to forfeiture amounted to a contract by way of penalty need not be decided. 27. We are unable to agree with these conclusions of the learned Subordinate Judge. It is somewhat difficult to appreciate the distinction in nomenclature between the items specified in para. 11 of part I, which were to be forfeited if not removed before the expiration of the lease, and the items specified in para. I of Part III, which might be kept on the demised premises for a further period of 3 months after such expiration, but, in our opinion, the words "bricks and other materials" in the latter part of para. 1 Part III, which might be left in contravention of the contract for removal within the stated period of 3 months, include all the items mentioned in the first part of that paragraph. In this view of the matter, there can be no doubt that the bricks and kilns, as well as all other items specifically mentioned in para. 1 Part III, which might be left in contravention of the contract for removal within the stated period of 3 months, include all the items mentioned in the first part of that paragraph. In this view of the matter, there can be no doubt that the bricks and kilns, as well as all other items specifically mentioned in para. 1 of Part III, which might have been, but were not, removed in accordance with these provisions, became the absolute property of the Secretary of State. We think too that the words "other materials" in the latter part of para. 1 of Part III include the tools and plant of the Pug Mills, but even if this be not so, these items would be forfeited under para. 11 of Part I, since para. 1 of Part III of the conditions makes no specific reference to them. 28. The contention that the provisions for forfeiture in the lease constitute a penal contract, such as is contemplated by S. 74, Contract Act, cannot, in our opinion, be accepted. The stipulation for removal by the lessee of his property before the expiration of the lease or within a period of 3 months thereafter was evidently intended to secure vacant possession so that there would be no obstruction to the working of the Bricks Fields and that a new lessee would be able to utilise them free from hindrance. The provision of such terms as to forfeiture is by no means unusual or extraordinary. The modification introduced by para. 1 of Part III of the conditions was liberal and the conditions as a whole do not appear to us to be at all penal in nature or such as are contemplated by S. 74, Contract Act. 29. In the case of Jahar Lal v. Nanda Lal, 18 C.W.N. 545 : (A.I.R. 1915 Cal. 23) the plaintiff had sued only for a permanent injunction to restrain the defendant from digging up the land in his possession, and the decision proceeded on the view that the Courts will not interfere by way of injunction when the plaintiff is out of possession, unless there is some privity between the parties. It was however noted in that decision that "in such a case as the latter, Davenport v. Davenport, (1849) 7 Hare. Rep. 217 : (18 L.J. Ch. It was however noted in that decision that "in such a case as the latter, Davenport v. Davenport, (1849) 7 Hare. Rep. 217 : (18 L.J. Ch. 163) in which an action of ejectment was pending, the Courts of India would probably grant an injunction." The present is a suit for ejectment of the defendant from and obtaining khas possession of the entire brick fields, and having regard to the provisions for forfeiture of property remaining in the land after the expiration of the periods provided by the conditions of the lease, we do not think it was essential for the plaintiff to ask for a declaration of title and recovery of possession of specific items of property. Such property as has been forfeited will remain on the land and when the plaintiff obtains possession, he will at the same time, recover possession thereof. 30. We are not impressed with the contention that there was waiver on the part of the plaintiff of the conditions of forfeiture. This contention has been based on the letter Ex. A(6) of 14-9-1938. We do not think that the action of the plaintiff in allowing the defendant time as a matter of grace till 30-9-1938, to remove his property will at all effect the matter or can in any way amount to waiver. In our opinion, therefore, the plaintiff is entitled to the Bricks, Kilns Pug Mills, Tools and Plant etc. which were left on the Brick Fields by the defendants after 30-9-1938. With regard to the Bricks, however, in view of the compromise between the plaintiff and the defendants above-mentioned, we think the plaintiff can recover only the amount of sale proceeds, at the rate of Rs. 2 per 1000 bricks sold which has been deposited with the receiver in accordance with the terms of the compromise. 31. The result is therefore that this appeal is dismissed with costs for the respondent 1. The cross objection is dismissed in so far as it relates to the claim for damages specified in Sch. B to the plaint, but is allowed in other respects. The defendants will be restrained from removing the Kilns, Pug Mills, Tools and Plant from the Brick Fields, and the plaintiff will be given possession of them along with the land. The plaintiff will also be paid the amount realised by the sale of the Bricks at the rate of Rs. The defendants will be restrained from removing the Kilns, Pug Mills, Tools and Plant from the Brick Fields, and the plaintiff will be given possession of them along with the land. The plaintiff will also be paid the amount realised by the sale of the Bricks at the rate of Rs. 2 per 1000 Bricks, which has been deposited with the receiver in accordance with the terms of the compromise. Each party will bear his own costs of the cross objection. R.C. Mitter, J. 32. I agree.