JUDGMENT : Mohapatra, J. - This second appeal has been filed by the Plaintiff-landlord against the reversing judgment of the lower appellate Court arising out a suit brought in ejectment of the Defendant who was a monthly tenant under the Plaintiff in respect of a house situate within the municipal area of Cuttack. The Defendant was in arrears of rental which was fixed by the Rent-Controlling officer at Rs. 27/8/- per month as fair and equitable rent. The landlord-Plaintiff served a notice on 4-3-49 on the Defendant to vacate by the expiry of the month of March. There is no dispute that the notice was a valid notice to unit u/s 106 of the Transfer of Property Act. The defence was two-fold-that the Plaintiff's suit is not maintainable there being no order of exemption under the Rent Control Act and further that the Plaintiff having accepted rental from the Defendant during the continuance of the suit, the previous notice has been waived and a new tenancy has been created. On the first plea of defence, both the courts below have found that the case does not require an order of exemption as the Defendant was in arrears of rent. The trial Court gave a decree to the Plaintiff finding that there was no new tenancy created on acceptance of rental. The lower appellate Court however has vacated the decree passed by the trial Court and dismissed the Plaintiff's suit. 2. The suit was filed on 5-7-49. The Defendant sent by money-order rents for the months of March till October 1949 in two instalments - the first instalment being rental for the months of March to June and second for the months July to October. They were remitted on 23-7-49 and 18-11-49 and accepted by the Plaintiff. The lower appellate Court has dismissed the Plaintiff's suit relying on a Full Bench decision of the Patna High Court Chotu Mia Vs. Mt. Sundri, where the principle was laid down that where after the forfeiture of the lease the lessee remits certain amount to the lessor as rent and intends it as payment of rent and the landlord accepts it only as damages for use and occupational the acceptance of payment by the landlord must be deemed to be as rent and operates as a waiver of the forfeiture. That was a case under the provisions of Section 111(g) of the Transfer of Property Act where the tenancy terminated by forfeiture. It is clear to me that the lower Appellant Court .misdirected himself in applying the principle of forfeiture to a case where termination of tenancy is by service of notice to quit coming under the provisions of Section 111(h). The difference between the two classes of cases is fundamental where in the case of a forfeiture the waiver may be by an unilateral act but in the case of waiver of a notice to quit or creation of a new tenancy, both the landlord and the tenant must agree that a new tenancy is to be created or the old tenancy is to continue. This distinction has been very well elucidated in a decision of their lordships of the Bombay High Court in the case of Navanital v. Baburao AIR 1945 Bom. 131, Stone C.J. and Kania J (as he then was) wrote two separate judgments but nevertheless agreed on all points. That was a case exactly to the point coming u/s 111(h) of the Transfer of Property Act where the tenant wanted to take advantage of the provisions of Section 113 of the Act basing his defence upon continuance of the tenancy and creation of a new tenancy on account of which the rent due after expiry of the notice was sent by the tenant during the continuance of the suit and was accepted by the landlord. Their lordships observed in that case that it could not be a case of continuance of tenancy which was terminated by a valid service of notice to quit. The rental which was sent was due after the tenancy was terminated. The only question therefore which was to be determined was, as there Lordships put it, whether there was an unity of mind of the Landlord and the tenant that a new tenancy was to be created in acceptance by the landlord of the amount sent by the tenant. It was further found in that case that the definite position was that the landlord accepted it only as damages for use and occupation and not as rent for the house in question. On that basis their Lordships found that there was no waiver of the notice and no creation of a new tenancy. It was further found in that case that the definite position was that the landlord accepted it only as damages for use and occupation and not as rent for the house in question. On that basis their Lordships found that there was no waiver of the notice and no creation of a new tenancy. But nevertheless the principle laid down by their Lordships will give us a guide to determine the present case according to the principle whether as a matter of fact both parties intended to create a new tenancy or as a matter of that whether the money sent by the Defendant was as rental and further that the landlord also accepted the money as rent. Their Lordships in that case have observed further that it was more or less a question of fact to be determined by the Court of fact or the Jury. 3. Even though the lower appellate Court misdirected himself in applying the principle laid down in the Full Bench decision of the Patna High Court the conclusions arrived at seem to be correct on account of his clear finding that that acceptance of the money by the landlord was as rental and further that the Defendant sent the money as rent. The Plaintiff's version was that the money-order-coupons were blank and did not indicate whether money was sent as damages for use and occupation or as rental. The money-order coupons have been in the custody of the Plaintiff and these were not produced. The Court of fact therefore was perfectly competent, for the non-production of the coupons and also from the consideration of a few other circumstances, to come to the conclusion that what was sent by the Defendant was rental and it was accepted by the landlord as such. This being the position it is clear to me that there has been a creation of new tenancy on account of which the present suit must fail. 4. The appeal, therefore, fails and is dismissed without costs. The decree passed by the trial Court in favour of the Plaintiff to recover Rs. 191/13/- towards arrears of rent was not challenged by the Defendant in the lower appellate Court and must therefore stand. Leave to appeal prayed for is refused. Final Result : Dismissed