JUDGMENT 1. On the 19th of October, 1946 a notice was given by Mirza Abdul Rauf Beg, mutwalli of the waqf, to Mirza Enayat Beg, a tenant of the shop belonging to the wakf demanding that he should pay the arrears of the rent of the shop and also intimating that the future rent of the shop after the termination of the month of November, 1946 would be Rs. 147/2/- per month. The tenant was also informed that if he did not agree to this rent, he would have to vacate the shop. At the foot of the notice the details of the proposed rent were given. It was stated that the Municipal assessment was Rs. 110 the enhancement at 25 per cent. of this was Rs. 27/6/- , the enhancement due to an increase in the Municipal tax which the tenant was liable to pay was Rs. 2/12/- and the amount allowed under the orders of the District Magistrate for repairs was Rs. 6/14/- . 2. The tenant did not accept the rent proposed and continued to sent money orders at the old rate of Rs. 75 per month which, it is now agreed, was the agreed rent. These money orders were not accepted, and the Plaintiff, being the mutwalli, instituted the suit, out of which this appeal arises, for a sum of Rs. 1,677/12/- as arrears of rent. A detailed account of this arrears is given in a list attached to the plaint, and it shows that from the 1st of December, 1946 to the 28th of February, 1947 rent was charged at Rs. 147/2/- per month. 3. The Defendant denied his liability to pay rent at any sum higher than Rs. 75 per month. He contested the validity of the notice and he also pleaded that the notice was in fact a notice of ejectment and not a notice of enhancement. He specifically pleaded that in any case the enhancement claimed by the Plaintiff was excessive and against the law and could not be enforced. 4. The trial Court framed four issues of which the first is as follows-- Is the Plaintiff entitled to enhance the rent of the Defendant? If so, to what extent? 5. The trial Court found that the rent could not be enhanced to Rs. 147/2/- but that it could be enhanced to Rs. 4. The trial Court framed four issues of which the first is as follows-- Is the Plaintiff entitled to enhance the rent of the Defendant? If so, to what extent? 5. The trial Court found that the rent could not be enhanced to Rs. 147/2/- but that it could be enhanced to Rs. 112/8/- per month since there is a proviso in Section 5, Sub-section (2) of the U.P. Rent Control and Eviction Act limiting the enhancement to 50 per cent over and above the rent payable on the 1st of October, 1946. The court further rejected the claim to the amount said to have been allowed by the District Magistrate in respect of repairs but it allowed the amount due to its enhancement of tax. The learned Civil Judge, therefore, passed a decree for rent at the rate of Rs. 75 per month from the 1st May, 1945 to the 31st of March, 1946 and Rs. 77/12/- per month from the 1st of April, 1946 to the 31st of October, 1946 and thereafter at Rs. 112/8/- per month till the 28th of February, 1947. He allowed a deduction of Rs. 295 which had admittedly been received by the Plaintiff. The claim for ejectment was dismissed. The Defendant appealed but the learned District Judge of Lucknow partly allowed the appeal and dismissed the cross-objections filed by the Plaintiff. In the result he decreed the suit for Rs. 1,800 altogether. 6. The Defendant filed a second appeal. During the pendency of the appeal both the Appellant and the Respondent No. 1 died. The present Appellants have been substituted in the place of the former Appellant and the Sunni Central Board of Wakf has been substituted in the place of the Respondent No. 1. 7. When this appeal came for hearing before our learned brother Randhir Singh, J., it was contended that the notice of enhancement issued by the Plaintiff was bad in law and could not be relied upon as enhancing the rent from Rs. 75 per month to Rs. 112/8/- . 7. When this appeal came for hearing before our learned brother Randhir Singh, J., it was contended that the notice of enhancement issued by the Plaintiff was bad in law and could not be relied upon as enhancing the rent from Rs. 75 per month to Rs. 112/8/- . Reliance was placed before him on a decision of a single Judge of this Court reported in Sameshwar Dayal Seth v. Shri Dwarkadhish Ji Maharaj 1950 A.W.R. (H.C.) 77, in which case it was held that a notice of enhancement could not be held to be Valid even in respect of the enhancement which could be made according to law if in fact the enhancement notified in it is in excess of the law. Since our learned brother did not agree with this view, he has referred this case to a Division Bench and this Bench has been constituted to decide the point. 8. Section 5, Clause (2) of the U.P. Rent Control and Eviction Act reads as follows-- Where the rent for any accommodation has not been agreed upon or where in the case of tenancies communing from before October 1, 1946, the landlord wishes to enhance the rent agreed; upon, he may, by notice in writing, fix the annual rent at, or enhance it to, an amount not exceeding the reasonable annual rent. Provided that the enhanced rent shall not exceed the rent, if any, payable on October 1, 1946, by more than 50 per cent. thereof: Provided further that nothing in this section will entitle the landlord to enhance the rent in the case of leases for a fixed term during the continuance of the term unless so permitted by the contract of tenancy. 9. Under this clause, therefore, it is open to the landlord to enhance the rent by his unilateral act. The clause, however imposes certain restriction upon this power. Those restrictions may be summarised as follows: (1) The notice must be in writing: (2) The limit of enhancement must be the reasonable annual rent: (3) It should not exceed the rent payable on the 1st of October, 1946 by more than 50 per cent, thereof; and (4) No enhancement can be made during the continuance of the term fixed by a lease. 10. 10. In the present case it is no longer in dispute that the rent payable for the shop under the agreement of the parties was Rs. 75 per month only. Under the third condition mentioned above rent can, therefore, not be fixed so as to exceed Rs. 112/8/- . It is true that the Municipal assessment of the house for the purposes of tax was Rs. 110 and therefore u/s 2, Sub-clause (f) of the U.P. Rent Control and Eviction Act the reasonable monthly rent would be Rs. 110 plus Rs. 25 per cent. of this amount, namely Rs. 27/8/- . The total reasonable monthly rent would, therefore, be Rs. 137/8/- . By the notice which has been given the rent was sought to be fixed at Rs. 147/2/- , per month which was in excess both of the reasonable annual rent as well as of the amount by which the enhancement could be made by reasons of the first proviso to the clause. The question that requires our consideration is whether it was open to the court to legalise this notice by altering the proposed enhancement so as to bring it down to the figure of Rs. 112/8/- per month. 11. A notice u/s 5, Clause (2) is the act of the landlord himself. It is open to the landlord not to enhance the rent at all or to enhance it to a figure such lower than that to which he is entitled under the provisions of this clause. If he had for instance, in this case fixed the monthly rent at Rs. 100 he could have done so and the court could not have enhanced that rent to Rs. 112/8/- . How is it then possible for the court to amend the notice by reducing the rent from Rs. 147/2/- to Rs. 112/8/- . Unless the amendment is made, the notice still remains a notice of enhancement to Rs. 147/2/- . By reason of Section 5, Clause (2) that rent cannot be charged. There is no other rent which the landlord desires to charge. The contract entered into between the parties themselves thus remains unaffected, and by reason of Section 5, Sub-clause (1) the rent payable on the accommodation shall continue to be the same as had been agreed upon between the landlord and the tenant. 12. There is no other rent which the landlord desires to charge. The contract entered into between the parties themselves thus remains unaffected, and by reason of Section 5, Sub-clause (1) the rent payable on the accommodation shall continue to be the same as had been agreed upon between the landlord and the tenant. 12. In three decision of this Court, to only one of which was reference made before our learned brother, this view has been taken. The first and second cases were decided by the same Judge. They are Someshivar Dayal Seth v. Shri Dwarkadhish Ji Maharaj 1950 A.W.R. (H.C.) 77, and B. Lalji Tandon v. Mrs. F.G. Rufus 1950 A.W.R. (H.C.) 42. The last case is the decision of our learned brother Chaturvedi, J. and is reported in Seth Girdhari Lal v. Lala Sunder Lal 1954 A.W.R. (H.C.) 183. The learned Judge lays down in these words-- The Plaintiff had attempted to raise the rent by giving notice, to a figure more than the annual reasonable rent of Rs. 42/8/- a month, but this not being permitted by the law, the notice of enhancement had to be held to be invalid, with the result that the rent was not increased even upto the figure of the annual reasonable rent. 13. The learned Judge relied upon the two earlier cases of this Court. 14. We have considered the point raised, and for the reasons that we have already given, we cannot come to a conclusion other than that at which the learned Judges in the three cases mentioned above have arrived. We, therefore, hold that the notice of enhancement, not being in accordance with law, could not affect the rent, and the rent which had previously been agreed upon between the parties was the rent which the Plaintiff was entitled to realise. The Plaintiff was, therefore, entitled to receive from the Defendant only a sum calculated at the rate of Rs. 75 per month from the 1st of May, 1945 to the 28th of February, 1947, and the Defendant will be allowed a credit of Rs. 295 which has admittedly been received by the Plaintiff on account of the rent. 15. The rent for 22 months at the rate of Rs. 75 per month comes to Rs. 1,650 and deducting the sum of Rs. 295 which has admittedly been received by the Plaintiff on account of the rent. 15. The rent for 22 months at the rate of Rs. 75 per month comes to Rs. 1,650 and deducting the sum of Rs. 295 from this, the amount for which a decree should be passed in favour of the Plaintiff is Rs. 1,355. We accordingly reduce the amount decreed by the District Judge of Lucknow from Rs. 1,800 to Rs. 1,355. Having regard to the circumstances of the case we direct that the parties shall bear their own costs of this case throughout.