JUDGMENT : 1. This is a defendant's second appeal. It arises out of a suit brought by plaintiff for ejectment and mesne profits in respect of an agricultural holding situated in Mouza Akvi measuring 22.51 acres, and leased out to the defendant on rent of Rs. 62-5-7 per annum for one year in 1941-42. The defendant however continued in possession and paid annual rent as above. The plaintiff gave notice to the defendant dated 7-12-1945 calling upon him to vacate at the end of the current agricultural year i.e., in June 1946 and on his failure to do so brought the present suit on 1-8-1946. 2. The defendant inter alia contended in his written statement dated 24-3-1947 : "1. That after receipt of notice the defendant orally replied to the plaintiff that he had assured him earlier that he might continue tilling and paying agreed rent and on that assurance the defendant had spent Rs. 1625/-. On this oral reply the plaintiff consented to continue him. Hence notice is waived. 2. That the plaintiff had realised rent for the year 1945-46 and 1946-47 after the notice hence the notice is waived." 3. The defendant did not enter the witness box and the trial court held that he has failed to prove so-called assurance given by the plaintiff for continuing the lease after notice. It further held that even the rent for the year 1945-46 is not fully paid. 4. In support of his plea of waiver of notice to quit the defendant has produced two receipts evidencing payments of rent thus : Receipt for Rs. 25-12-0 dated 21-2-1947 Ex.D/2, 7 Receipt for Rs. 37-9-6 dated 9-5-1947 Ex. D/1, 6. 5. The defendant paid these amounts to plaintiff's servant Vithalrao to whom rent is usually paid. The trial Court held that these payments did not indicate any act on the part of the plaintiff to continue the lease and thereby to waive the notice. 6. The Court therefore granted a decree for ejectment. This decision was confirmed by the Additional District Judge, Indore. The defendant has therefore preferred this second appeal. 7. Mr. The trial Court held that these payments did not indicate any act on the part of the plaintiff to continue the lease and thereby to waive the notice. 6. The Court therefore granted a decree for ejectment. This decision was confirmed by the Additional District Judge, Indore. The defendant has therefore preferred this second appeal. 7. Mr. Shambhudayal Sanghi who appears for the defendant contended that on facts proved on record the lower Court ought to have held that the notice to quit is waived by reason of the principle enunciated in S. 113, T. P. Act though the provision in terms does not apply to agricultural leases. 8. Mr. Fadnis who appears for the plaintiff concedes that though S. 113, T. P. Act is inapplicable to agricultural leases it is based on general principles applicable to leases and hence will have to be applied to this case. Section 113 lays down : "A notice given under S. 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." 9. Now in the case of agricultural leases only reasonable notice to quit is essential and question of conforming to provisions of S. 106, T. P. Act does not arise. But this reasonable notice to quit will be waived only where there is in effect an agreement 'to restore the old tenancy'. The section makes it clear that in order that there should be waiver of notice to quit. I. there must be consent express or implied of the person to whom notice is given. II. there must be some act on the part of the person giving the notice showing the intention to treat the lease as subsisting. So that after the notice to quit is given parties must be 'ad idem' as regards continuance of old relation. 10. When any act on the part of the plaintiff is relied upon that act must be of the plaintiff or some person authorised by him or who is authorised even without plaintiff's knowledge or consent to continue or restore the old tenancy. 10. When any act on the part of the plaintiff is relied upon that act must be of the plaintiff or some person authorised by him or who is authorised even without plaintiff's knowledge or consent to continue or restore the old tenancy. Illustration (a) to S. 113 is quite clear and when it is proved that the landlord accepts rent for the period subsequent to the expiration of notice the notice is waived as from the fact of payment by the tenant his consent is implied. 11. But facts in this case are insufficient to prove this. The facts on record are these : On 7-12-1945 plaintiff gave notice to quit which expired in June 1946. On 21-2-1947 the defendant makes a payment of Rs. 25-12-0. By reference to Ex. D/7 receipt it appears Hindusingh (defendant) pays it towards the rent of the current year (1946-47) and Patwari credits it without reference to his master. On 24-3-1947 the defendant raises a plea of waiver of notice to quit and alleges that he had paid the rent fully for the years 1945-46 and 1946-47 which was evidently false. Then on 8-5-1947 he submits two applications Exs. P/1 and P/2. In Ex. P/1 he alleged that there was nothing in balance against him by way of rent and prayed that although suit for ejectment was proceeding against him he might not be ejected and was prepared to do whatever he is ordered to do. In Ex. P/2 he prayed that he was prepared to pay the costs of pending suit and vacate the leased premises and hence proceedings may be stopped. It appears when he was called upon to give a written consent to have all standing crops lay the plaintiff he refused to do so and the matter rested there. On 9-5-1947 he again pays Rs. 37-9-6 towards the rent of current year to the Patwari Vithalrao and obtains receipt with regard to these payments. Vithalrao who was examined by the defendant as his witness, says these payments were recorded by him without any specific authority and under a mistake and that he had no authority either to continue any tenant or to give fresh leases. He says he accepted the rent under the impression that he desires to have a settlement but this act of his was mistaken. 12. He says he accepted the rent under the impression that he desires to have a settlement but this act of his was mistaken. 12. From this evidence both the lower Courts have arrived at a finding of fact that the facts thereby proved are wholly insufficient to make out an act on the part of plaintiff to continue the tenancy. This is a finding of fact and cannot be assailed in second appeal. It is significant in this connection that the defendant did not enter the witness box to support his version. The facts of this case are somewhat similar to those reported in - 'Doe Ex D Ash v. Calvert', (1810) 2 Camp. 387 (A). 13. In this latter case, the tenant after expiration of notice to quit paid rent in the Bank authorised to receive payment on behalf of the landlord. This rent was for a period subsequent to the period expiring with notice to quit. It was held that the notice to quit was not waived. Under the circumstances, the payment was treated as tenant's own act and wholly insufficient to bind the landlord being in his own favour. In this case too, the entire conduct of the defendant indicates his own act in his own favour. In this state of things the ruling reported in - 'Navnitlal Chunnilal v. Baburao (No. 1)', AIR 1945 Bom 132 (B) and the principle laid clown in that case not only do not help the appellant but are against him. At page 134 of that case his Lordship Stone, C.J. says that the determination of the question whether S. 113 applies or not is a question for the jury. He disapproved the view laid down in - 'Manicklal Dey v. Kadambini Dassi', AIR 1926 Cal 763 (C) and quoted with approval the following observations of Lord Mansfield in - 'Doe v. Battern', (1775) 1 Cowp 243 (D) : "The single question is : Whether the landlord has, by any subsequent act or agreement, waived as such his right, and consented that the tenant should continue the possession ? If he has, no doubt but he will be bound by such agreement. As to that, the fact in this case is that the landlord has received rent 'eo nomine' for a quarter of a year which became due after the time of the demise in the declaration laid. If he has, no doubt but he will be bound by such agreement. As to that, the fact in this case is that the landlord has received rent 'eo nomine' for a quarter of a year which became due after the time of the demise in the declaration laid. This circumstance, it is insisted, is in fact a declaration on his part, that he departs from the notice he had given : and is an acknowledgment that he still considers the defendant as his tenant. But let us suppose the landlord had accepted this rent under terms, or made an express declaration that he did not mean to waive the notice, and that, notwithstanding his acceptance or receipt of rent, he should still insist upon the possession. Or suppose any fraud or contrivance on the part of the tenant in paying it. Clearly under such circumstances the plaintiff ought not to be barred of his right to recover : but all these are facts which ought to be left to the consideration of the jury." The same view was taken by Kania, J. 14. From the foregoing discussion it is clear that on the finding arrived at by both the Courts below and even on the examination of the facts proved it cannot be said that the plaintiff has waived the notice. 15. Mr. Sanghi has urged in this connection that had landlord come forward with a case that the tenancy continues could his client have contended that the notice is not waived and it has ended ? He says not. He therefore urges that the same result should follow on the principle of reciprocity. 16. I am afraid this argument is inapplicable. If the landlord had come forward to urge that the tenancy continues and there is the act of the tenant in making payment, S. 113 is satisfied and the parties will be deemed to be of common mind. But this is not the case here. There is no act of the landlord. His servant accepts money and there are no more facts. Landlord's conduct points to the contrary intention and not the intention to treat the lease as subsisting. 17. On the whole there is no force in this appeal. It is accordingly dismissed with costs. Appeal dismissed.