ORDER A.H. Khan, J. In Petitions No. 24 /56 and No. 25 /56 Civil Miscellaneous, which are under Article 227 of the Constitution, the point which arises is common and therefore this order will govern both the petitions. The short facts of both the cases are that in proceedings under section 319, Quanoon Mal, Gwalior, (of Samvat 1983) for eviction of non-occupancy tenants, all the Revenut Courts, including the Board of Revenue, dismissed the proceedings on the grounds that subsequent to the notice to quit, the Petitioner accepted rent and thus notice to quit was dispensed with. The point for consideration is whether acceptance of rent after instituting proceedings for eviction in Revenue cases, waives the notice. From the record of both the cases, it appears that the plea of the waiver of notice was never raised by the non-applicants (tenants) at any stage. The Revenue Courts suo motu dismissed the proceedings on the grounds of waiver of notice, embodied in Section 113 of the Transfer of Property Act. In the first place, Quanoon Mal Gwalior, is a special Act, which deals with the rights of the landlord and the tenant in respect of agricultural holdings. It does not contain any provision or rules relating to what is known in English laws "waiving" or "withdrawing" a notice to quit. Section 117 of the Transfer of Property Act expressly lays down that none of the provisions of Chapter V, which includes Section 114 about the waiver of notice to quit, apply to leases for agricultural purposes, except in so far as the State Government may by notification published in Official Gazette declare all or any such provisions to be so applicable in the case of all or any such leases, together with, or subjct to, those of the local laws, if any, for the time being in force. From this it is obvious that agricultural leases (and it is admitted that the proceedings in the instant cases relate to agircultural leases) are exempted from the operation of the Transfer of Property Act because the rights of the parties are regulated by the Gwalior Quancon Mal. On the authority of a Madras decision reported in Krishna Shetii(sic) alias Krishnaya and Anr. v. Gilbert Pinto and Ors. On the authority of a Madras decision reported in Krishna Shetii(sic) alias Krishnaya and Anr. v. Gilbert Pinto and Ors. 50 IC 898 it is contended that although the Transfer of Property Act may not apply in terms to agricultural leases, yet principles of English law as reproduced in the Transfer of Property Act are applicable to agricultural leases. I have gone through the Madras case cited above and I find that the observations of Wallis C. J. in this respect are not unqualified: He observed that Although agricultural leases are excepted from the operation of Sections 105 to 116 of the Transfer of Property Act, the principles of the Act may, as embodying rules of equity, justice and good conscience, be applied to them in the absence of special reasons for not doing so. Wallis C. J. is of the opinion that in the absence of special reasons, the principles embodied in Chapter v. of the Transfer of Property Act may be applied. In the first place, the case does not refer to the existence of any special Act which regulated agricultural leases in Madras. But in the instant case agricultural leases are dealt with by a special enactment known as Quanoon Mal Gwalior. This must be regarded as a special reason for not following the Transfer of Property Act. To me, it seems that the provisions of the Transfer of Property Act should not be resorted to in dealing with the agricultural leases because it has been excluded from the purview of the Act by express words. Sir D. F. Mulla in his commentary, under Section 117 of the Transfer of Property Act, has said that in the absence of any local Act or custom or any special reason to the contrary, the principles of English Law as reproduced by the Act are applied to agricultural leases. It follows, therefore, that where a local Act (and in the instant case the Quanoon Mal, Gwalior, is undeniably a local Act) exists, the principles of Section 114 should not be applied. I shall now consider the proposition from the point of view as if the principles contained in Chapter v. of the Transfer of Property Act are applicable to agricultural leases. I shall now consider the proposition from the point of view as if the principles contained in Chapter v. of the Transfer of Property Act are applicable to agricultural leases. Woodfall on Landlord and Tenants, page 1052 (25th Edition) under the heading "Waiver of Notice" has said that once a valid notice to quit has been served, the tenancy will automatically come to an end upon the expiry of such notice and that the party may by agreement, express or implied, create a new tenancy on the expiration of the old. Thus it would be obvious that the effect of the waiving of the notice to quit is not to continue the old tenancy but to create a new one, expressly or impliedly. Acceptance by the landlord of rent due after the expiration of a notice may he evidence. But in each case the question is of the intention with which the rent is accepted and in every case, it is the intention of the parties which must be determined. It is admitted that the rent was received during the pendency of the suit and the fact that the landlord continued the proceedings of eviction is ample proof of the intention that he did not wish to create a new tenancy nor allow the old tenancy to continue. In Davies v. D. Bristow(sic) (1920) 3 KB 428 at p. 437, referred to in Vol. 23, Third Edition of Halsbury's Laws of England, under the heading "Waiver of Notice" it was laid down that the acceptance of rent by a landlord after the expiry of notice to quit, in the absence of agreement to create a new tenancy, does not operate as a waiver of notice. For reasons stated above, I hold that the mere acceptance of rent during the pendency of eviction proceedings does not deprive the Petitioners from asserting that the tenancy has been properly determined and that in the instant case there is no waiver of the notice to quit. I would, therefore, allow both the petitions and setting aside the order of Revenue Board remit the case to the Tehsildar for further proceedings according to law. Counsel's fee for the Petitioner in both cases is fixed at Rs. 25 in each case. I would, therefore, allow both the petitions and setting aside the order of Revenue Board remit the case to the Tehsildar for further proceedings according to law. Counsel's fee for the Petitioner in both cases is fixed at Rs. 25 in each case. Shiv Dayal, J. I do not express any opinion on the question whether those general principles embodied in the Transfer of Property Act which accord with equity, justice and good conscience are, or are not applicable to agricultural lease. It is a question of considerable importance. For the purposes of these petitions it is unnecessary to decide it. Here it has been held by the Board of Revenue that a landlord's suit for eviction must be dismissed if he accepts rent during its pendency. This view runs counter to the well settled rule that mere acceptance of rent by the landlord, without more at a time when his suit for eviction is pending in a law Court does not amount to waiver. This rule is founded on sound principles. After all what is waiver? In the present context it is creation by agreement, express or implied, of a new tenancy on the expiration of the old. Once a "valid notice to quit" has been served it automatically brings the tenancy to an end on the expiration of the notice and, strictly, cannot be withdrawn or waived. After a valid notice to quit has been served, however, the landlord and the tenant may agree expressly or by implication for the grant of a new tenancy to take effect on the expiry of the notice. If such an agreement is effected during the currency of the notice to quit, the notice is, inaccurately, said to be "withdrawn". If such an agreement is effected after the expiry of the notice to quit, the notice is inaccurately, said to be "waived". By reason of the fact that a new agreement is necessary, the person who gives the original notice to quit, whether landlord or tenant, cannot "withdraw" or "waive" the notice without the consent of the person to whom the notice is given. Questions of waiver usually arise when some act is done by the landlord after the expiration of the notice, which either necessary or prima facie imports the recognition of an existing tenancy. [See 23 Halsbury (Salmond) 527]. Questions of waiver usually arise when some act is done by the landlord after the expiration of the notice, which either necessary or prima facie imports the recognition of an existing tenancy. [See 23 Halsbury (Salmond) 527]. It follows that in order that an act may constitute waiver it must signify the landlord's intention to forego his right of ejectment. What is required is a consensus ad idem between the parties to renew the lease or to treat it as subsisting. Such an intention cannot be implied where a landlord pursues his pending suit for eviction. Merely by acceptance of rent, it cannot possibly be said that the lessor intends to treat the lease as subsisting unless he withdraws the suit. Where a landlord having instituted suit pursues it in spite of receiving rent, there is no question of waiver, although he may not specifically call it compensation for use and occupation and may inaccurately call it rent. This view is supported by a number of decisions. See for instance: AIR. 1956 All 175 : AIR. 1956 Cal. 106 and a number of older decisions. It is true that a contrary view was taken in Maniklal v. Kadambini AIR 1926 Cal 763. It seems to me that that decision was not followed in any subsequent one, but was dissented from in Kamal Pat. v. Manhobibi air 1948 Oudh 127 where it was held: Once a suit for ejectment has been instituted, it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. He may renew the lease, in which case it would not be a question of waiver, but a question of fresh lease. Recently it was observed by Dixit J. (as he then was) in Abdul Karim Bhai v. Abdul Rehman 1960 MPLJ 705 : AIR 1960 MP 16 : What has to be proved is whether the landlord accepted the amount of rent for a period after the expiry of the notice to quit from the tenant as rent and with an intention to treat the tenancy as subsisting. It is manifest that when the question of waiver is one of intention, mere payment and acceptance of Tent by the landlord after the notice to quit cannot by itself necessarily constitute waiver." It is stated in 23 Halsbury (Salmond) 528: It is plain that no new tenancy is contemplated........where the landlord is at the same time proceeding for recovery of possession. It is true that the English Law relating to waiver is not exactly the same as in India [Section 113 Illustration (a)], nevertheless there can be no waiver unless and until it is proved that the landlord accepted rent, paid for a period after the expiry of the notice to quit, with intention to treat the lease as subsisting. Such an intention has to be proved; it cannot be assumed by implication. In the cases in hand not only that such an intention was not proved by the tenants, but also that no such plea was taken by them. Waiver has to be specifically pleaded. The Board of Revenue merely relied on the statement of the landlord in the Court that he had accepted rent for Samvat 2008. But that was all. As said above this statement could not constitute waiver. Since the Board of Revenue is the highest judicial authority for revenue Courts their decision is bound to propagate and perpetuate a serious error of law which has been committed in derogation of well recognized principles. In such a case it is the duty of this Court to exercise its powers of superintendence. In the result, I agree with my learned brother that these petitions must be accepted with costs in this Court. The judgment of all the revenue Courts must be quashed and the Tehsildar must be directed to proceed further with both these matters in accordance with law.