Zamin Ali v. Shanti Swaroop Garg — 1965 DIGILAW 248 (ALL)

JUDGMENT Sahgal, J. - The only points that arise in this second civil appeal filed by a landlord against his tenant are whether the tenant had renounced his character as such and was liable to be ejected under Section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, hereinafter to be referred to as "the Act" and is it that even if the conduct of the defendant respondent amounts to renunciation of his character as such has it been waived or condoned by the conduct of the landlord. 2. This appeal arises out of Original suit No. 254 of 1961 filed in the Court of the Munsif South Lucknow. It was suit for ejectment of the defendant-respondent and for recovery of Rs. 109.34 P. as arrears of rent and damages. The learned Munsif decreed the suit. The defendant made an appeal and the learned Civil Judge, Mohanlalganj, who heard the appeal allowed the appeal only to this extent that he dismissed the suit for ejectment without disturbing the decree for arrears of rent and damages for use and occupation. It is against this decree of the learned Civil Judge that this appeal has been filed. Prior to this suit also was filed by the plaintiff against the defendant and one Jagannath Prasad being Suit No. 487 of 1952. It was a suit for ejectment and for recovery of rent. The ground taken in paragraph 3 of the plaint in that suit (copy of the plaint being Ex.3) was that the defendant No. i.e. defendant in the instant case had sublet the house to defendant No. 2 without the consent of the plaintiff. The defendant pleaded, inter alia, that he had been tenant of the house upto the 24th of November, 1944 and that defendant No. 2, viz. Jagannath prasad was living with him in the house. In the month of November however, he was transferred to Gorakhpur and so he wanted to vacate the house but defendant No. 2 i.e. Jagannath Prasad, wanted to continue to occupy the house. The matter was referred, on the proposal of defendant No. 2, to the plaintiff. It was agreed between the plaintiff and defendant No. 2, viz. Jagnnath Prasad that the plaintiff would treat him as his tenant from the 25th of November, 1944 onwards and in future accept rent from him directly. The matter was referred, on the proposal of defendant No. 2, to the plaintiff. It was agreed between the plaintiff and defendant No. 2, viz. Jagnnath Prasad that the plaintiff would treat him as his tenant from the 25th of November, 1944 onwards and in future accept rent from him directly. The defendant having left Lucknow on the 24th of November, 1944 he had nothing to do with the house in suit and Jagannath Prasad, defendant No. 2 became tenant of the house in pursuance of that agreement and he had been paying rent to the plaintiff directly who had been receiving the same and had even enhanced there rent from time to time. This plea, however, was not accepted in the case and the suit was decreed on the 31st of March, 1955, by the learned Munsif for ejectment and for arrears of rent and also pendente lite and the future mesne profits against both the defendant and Jaganath Prasad, i.e. the two defendants in that case. The two defendants went up in appeal and the learned Civil Judge of Mohanlalganj allowed the appeal only to this extent that the suit was dismissed for ejectment., the decree for arrears of rent being allowed to remain intact. The ground why the decree for ejectment was set aside was that the notice of demand under Section 3(a) had not been validly served. The plaintiff filed an appeal against that judgment and that appeal also was dismissed by this court on the 22nd of March, 1960, being Second Appeal No. 78 of 1956. After the dismissal of his appeal by this court the plaintiff give a notice to the defendant on the 6th of April, 1960 which was served on him on the 13th of April, 1960 (Ex. 9) saying that in his written statement in the previous case he renounced his character as the tenant of the plaintiff which rendered him liable to ejectment under Section 3 of the U.P. Act No. 111 of 1947 but as the suit and the appeal with respect to it were pending and the question of termination of tenancy was sub judice he could not issue another notice of ejectment on this ground and as such he never condoned the act of renouncing his character by the defendant as tenant. In the notice he also pointed out that the defendant had been in arrears from 26.10.1951 and the rent till the 31st of March, 1955 had been decreed in the earlier suit. Arrears therefore fell due against him from the 1st of April, 1955 till the 25th March, 1960. In the notice he terminated the tenancy of the defendant also saying that it would determine on the expiry of one month after the date of receipt of the notice which date as we know in the 13th of April, 1960. It is in these circumstances that this suit had been filed and the ground on which the suit has been filed and the ground on which the suit has been filed without the permission of the District Magistrate under Section 3(1) of the Act is that the defendant has renounced his character as tenant of the plaintiff in the previous litigation and as such was liable to be ejected. Section 3(1) so far it is relevant for our purpose provides : "3(1). Subject to any order passed under sub-section (3) no suit shall without the permission of the District Magistrate, be filed in any Civil Court against tenant for his eviction from any accommodation except on one or more of the following grounds" :- (a) ................................................................. (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant." 3. The question to be decided in this case is as to whether the tenant has renounced is character as such. It is not a case of denying the title of the landlord. Therefore, it is to be seen whether he has renounced his character as such it is to be seen whether the landlord has waived his right or condoned his conduct. 4. Under Section 2(g) of the Act "tenant" means the person by whom rent is or but for a contract express or implies would be payable for any accommodation." 5. In this case rent was payable by the defendant to the plaintiff. 4. Under Section 2(g) of the Act "tenant" means the person by whom rent is or but for a contract express or implies would be payable for any accommodation." 5. In this case rent was payable by the defendant to the plaintiff. The defendants however asserted in his written statement in the previous case that though he was liable to pay the rent upto the 24th of November, 1954 there was an agreement by virtue of which Jaganath Prasad became liable to pay the rent from that date and his liability ceased. In other words his case was that Jaganath Prasad became the tenant of the plaintiff by a mutual agreement and he had nothing to do with it. The court however, held that there was no such agreement and as a result of that finding the suit was decreed for arrears of rent though no decree was passed for ejectment on the ground that the notice demanding the arrears was not property served. The finding that there was no such agreement and that defendant No. 1 of that suit i.e. the defendant in these proceedings continued to be the tenant of the plaintiff res judicata between the parties. Thus though the defendant was the tenant of the plaintiff he renounced his character as tenant by saying that he was not liable to pay rent. The case therefore is covered by clause (f) of sub-section 1 and Section 3 of the Act. Under sub-section (3) the plaintiff was entitled to eject him without the permission of the District Magistrate. 6. It may here be pointed out that clause (f) sub-section (1) of Section 3 of the Act contemplates two types of cases in which the landlord gets a right to file a suit for ejectment against his tenant without the permission of the District Magistrate. The first category of cases is where tenant has renounced his character as such and the second category is of cases in which he denies the title of the landlord. In either of these two cases the landlord gets a right to file a suit for ejectment against the tenant without the permission of the District Magistrate. The instant case comes under the category of cases where the tenant renounces his character as such and not under the category where he denies the title of the landlord. In either of these two cases the landlord gets a right to file a suit for ejectment against the tenant without the permission of the District Magistrate. The instant case comes under the category of cases where the tenant renounces his character as such and not under the category where he denies the title of the landlord. The defendant did not say in his written statement in the previous case that the plaintiff was not the landlord of the premises. What he said was that he had ceased to be the tenant and was not liable to pay rent but somebody else had become liable by virtue of an agreement between him and the landlord. It is thus clearly a case which comes under the first category under clause (f) of sub-section (1) of Section 3 of the Act. The learned Civil Judge who heard the appeal however was of the opinion that the allegations did not amount to a renunciation of the character of the tenant as such because the tenant did not claim possession. According to his reasoning in order to constitute renunciation of the character of a tenant one should continue in possession and then deny that he is a tenant. In the instant case the tenant had said that he had left the accommodation for good on the 24th of November, 1944 and never occupied the house thereafter but the same was occupied by Jagannath Prasad who was accepted by the landlord to be his tenant. These allegations, according to the learned Civil Judge, amounted to the plea that the defendant had left the accommodation and was no more a tenant but somebody else was to be the tenant. On this ground he held that it could not be called a case of renunciation of the character of a tenant as such. It was in fact a plea of surrender and not of renunciation of character of the tenant as such. Section 3(1)(f) of the Act, according to this reasoning did not apply to the case. The learned Civil Judge went on further to say that the appeal upto the High Court in that case was fought by the defendant and the other defendant, viz. Section 3(1)(f) of the Act, according to this reasoning did not apply to the case. The learned Civil Judge went on further to say that the appeal upto the High Court in that case was fought by the defendant and the other defendant, viz. Jagannath Prasad who was also ordered to be ejected and if we look to the pleas of the two defendants in that case it could not according to the learned Civil Judge appoint to a renunciation by the defendant, more particularly when it was in evidence in the suit that the other defendant of that suit was paying rent to the landlord though the receipts were granted in the name of the present appellant through Jagannath Prasad Gupta. Ultimately he held that the allegations in the written statement in that case by the defendant did not amount to a renunciation of the character of the tenant as such but only amounted to an assertion that the appellant had surrendered his tenancy and in his place another person had been accepted to be the tenant by the landlord. I confess I have not been able to appreciate the reasoning of the learned Civil Judge. Under Section 2, Clause (g), as has already been pointed out, a tenant is one by whom rent would be payable for an accommodation. It does not provide that the tenant should necessarily be in occupation of the premises. The rent was payable by the defendant. He might have left for Gorakhpur on transfer and might have given possession of the premises of Jagannath Prasad Gupta who might be paying the rent to the plaintiff but the liability of the defendant continued and whatever payments were made by Jagannath Prasad were made on his behalf. The liability, therefore was that of the defendant. The mere fact that he had left for Gorakhpur did not make any difference. He might not have remained in actual occupation of the premises but that did not mean that his liability for payment of rent had ceased. Such plea of his was not accepted by the court. Thus though he was liable to pay the rent and was thus the tenant of the premises he claimed that he was not liable to pay the same and thus renounced his character as tenant, for the character as tenant consists in his liability to pay the rent. Such plea of his was not accepted by the court. Thus though he was liable to pay the rent and was thus the tenant of the premises he claimed that he was not liable to pay the same and thus renounced his character as tenant, for the character as tenant consists in his liability to pay the rent. I am therefore of the opinion that this was a case of renunciation. It may have that the defendants took the plea of surrender also but the facts do make out a case of renunciation by the defendants denial of liability to pay rent even though he was liable to pay it. 7. The question now arises as to whether the landlord, i.e., the plaintiff had waived his right or has he condoned the conduct of the tenant within the meaning of this term given in clause (f) of sub-section (1) of Section 3 and if he had done so, he was not liable to eject him without the permission of the District Magistrate. By the renunciation of his character as a tenant when the defendant became liable to be ejected without the permission of the District Magistrate the parties became relegated to the general law of landlord and tenant. The mere fact that he became liable to be ejected did not mean that the tenancy had terminated. The tenancy could be terminated only by the mode provided for the same under Section 106 of the Transfer of Property Act. The result was that the plaintiff served a notice on the defendant (Copy Ex.9) under Section 106 as amended by the U.P. Civil Laws (Reforms and Amendment) Act, 1954 saying that the tenancy will be determined on the expiry of one month next after the date of receipt of the notice by him. The notice in this case was received on the 13th of April, 1960. The tenancy thus determined on the 13th of May, 1960. The result was that upto the 13th of May, 1960 when the tenancy was determined the defendant continued to be the tenant of the plaintiff. As a result of the notice the defendant paid to the plaintiff a sum of Rs. 2,677.50 P. for rent from the 26th of October, 1951 to the 25th of April, 1960 it being Ex.A-3. The result was that upto the 13th of May, 1960 when the tenancy was determined the defendant continued to be the tenant of the plaintiff. As a result of the notice the defendant paid to the plaintiff a sum of Rs. 2,677.50 P. for rent from the 26th of October, 1951 to the 25th of April, 1960 it being Ex.A-3. It is said that the granting of this receipt amounts to waiver by the landlord of his right of his right or condoning the conduct of the tenant. I may repeat that while by his act of renunciation of his character as a tenant the defendant became liable to be ejected by the plaintiff on a suit being filed by him without permission of the District Magistrate, the tenancy could be terminated only in accordance with law. It was termination by a notice sent under Section 106 of the Transfer of Property Act and as one month after the service of the notice on the defendant expired on the 13th of May, 1960 the tenancy terminated on that date. It rent was received by the plaintiff for any period to the 13th of May, 1960 it was the rent due to him because the defendant continued to be his tenant till the 13th of May, 1960. The receiving of rent by the plaintiff for the period during which the defendant was his tenant could not amount to any waiver or condonation of the defendant as a tenant. 8. It was pointed out that the renunciation was made as far back as the 21st of October, 1954 when the written statement was filed and it was not till the year 1960 when the notice Ex.9, dated the 6th April, 1960 was sent that the plaintiff thought of terminating the tenancy of the defendant. So much delay on the part of the plaintiff, according to the learned counsel for the defendant, amounted to waiver or condensation of the conduct of the tenant. The explanation of this delay is not far to seek. The right to eject the defendant accrued to the plaintiff by his renunciation during the pendency of the previous suit when the written statement was filed by the defendant in that suit. The explanation of this delay is not far to seek. The right to eject the defendant accrued to the plaintiff by his renunciation during the pendency of the previous suit when the written statement was filed by the defendant in that suit. That being suit for ejectment there was no point in the plaintiff giving notice to the defendant to terminate the tenancy on the basis of the written statement filed by him. In fact the suit was even decreed by the learned Munsif though appeal was allowed by the Civil Judge so for as ejectment was concerned. A second appeal was filed by the plaintiff in the High Court and so long as the second appeal was pending in which he might have been granted a decree fro ejectment there was no point in his giving notice to the defendant under Section 106 off the Transfer of Property Act asking him to vacate the premises and telling him that his tenancy had terminated. He gave the notice Ex. 9 shortly after the termination of the proceedings in the second appeal in the High Court his appeal being dismissed on the 22nd of March, 1960. It cannot therefore be said that simply because the plaintiff served the notice on the defendant after such a long time of the accruing of the right to him must be held that he has waived his right or condoned the conduct of the defendant. It was also pointed out that the receipt granted by the plaintiff to the defendant of the rent for the period upto the 25th of April, 1960, Ex. A-3 does not indicate that the right accruing as a result of the renunciation had not been waived but as already pointed out above, the acceptance of rent was due from the tenant could not amount to waiver or condonation of the conduct of the tenant. 9. It may here be pointed out that this is not the case of a forfeiture under Section 111(g) of the Transfer of Property Act. under Section 111(g) of the Transfer of Property Act a lease of immovable property determines by forfeiture; that is to say, in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. under Section 111(g) of the Transfer of Property Act a lease of immovable property determines by forfeiture; that is to say, in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. For the purposes of a case falling under Section 111(g) of the Transfer of Property Act renunciation consists in the lessee renunciation his character as such by setting up title in a third person or by claiming title in himself. In the instant case which is covered by clause (f) of sub-section (1) of Section 3 of U.P. (Temporary) Control of Rent and Eviction Act, 1947, renunciation consists in the tenant renouncing his character as such without his setting up title in a third person or his claiming title in himself. In order that the case may come under Section 111(g) of the Transfer of Property Act the renunciation consists in the tenant setting up title in a third person or claiming it in himself and not in simply renouncing his character as such. The category of cases where he denies title of the landlord is a different category under clause (f) of sub-section (1) of Section 3 of the Act. It may be that such cases are covered both by Section 111(g) of the Transfer of Property Act. It may be that such cases are covered both by Section 111(g) of the Transfer of Property Act and also clause (f) of sub-section (1) of Section 3 of the Control of Rent and Eviction Act. In such cases it may be necessary to comply with both the provisions of the control of Rent and Eviction Act and the Transfer of Property Act but in cases which are not covered by the Transfer of Property Act the provisions of the Transfer of Property Act cannot be projected. In the case of forfeiture the lease determines by the act of forfeiture contemplated therein when the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. It is not a notice contemplated by Section 106 of the Transfer of Property Act. It is a notice intimating to the tenant that on account of his act of forfeiture the lease is determined. It is not a notice contemplated by Section 106 of the Transfer of Property Act. It is a notice intimating to the tenant that on account of his act of forfeiture the lease is determined. As to such cases Section 112 provides that the forfeiture under Section 111(g) is waived by acceptance of rent or by any other act on the part of the lessor showing an intention to treat the lease as subsisting :- Provided that the lessor is aware that the forfeiture has been incurred :- Provided also that where rent is accepted after institution of a suit to eject the lessee on the ground of forfeiture such acceptance is not a waiver. It means that in a case covered by clause (g) of Section 111 of the Transfer of Property Act acceptance of rent after forfeiture has been incurred up to the date of the filing of the suit of ejectment amounts to waiver. The difference between such cases, i.e. the cases covered by Section 111(g) of the Transfer of Property Act and the cases that are covered only by clause (f) of sub-section 3 of the Control of Rent and Eviction Act and not also by Section 111(g) of the Transfer of Property Act is that while under the Transfer of Property Act the lease determined on the act of forfeiture being committed and the notice of an intention to terminate the leases being served on the tenant, in the latter case it is determined only by a notice contemplated under Section 106 of the Transfer of Property Act. It is, therefore provided in former case that if rent is accepted after forfeiture there is a waiver because as a result of forfeiture the tenancy having been determined the acceptance of rent would naturally amount to waiver. In a case like present the tenancy terminates only after the expiry of one month from the service of notice under Section 106 of the Transfer of Property Act. The tenant continues to be the tenant till the expiry of that date and if rent is accepted for there period upto the expiry of the landlord cannot be said to be such as to amount to waiver, for he is after all receiving rent only for the period during which the tenant has continued to be his tenant. The tenant continues to be the tenant till the expiry of that date and if rent is accepted for there period upto the expiry of the landlord cannot be said to be such as to amount to waiver, for he is after all receiving rent only for the period during which the tenant has continued to be his tenant. If he accepts rent for the period during which he has ceased to be his tenant then, of course, it will amount to waiver but not otherwise. Clause (f) of sub-section (1) Section 3 of the Control of Rent and Eviction Act gives the right to the landlord to file a suit only for ejectment of the tenant if the condition in clause (f) is satisfied. The clause does not provide that the tenancy terminates by the renouncing of his character as such by the tenant. It will terminate only when a notice in accordance with law have been served on the tenant. The notice in such cases would be one under Section 106 of the Transfer of Property Act but in cases under Section 111(g) of the Transfer of Property Act it would not be such a notice but would be a notice by way of information that forfeiture has been incurred and the lease determined. It may be that certain contemplated by clause (f) are covered by Section 111(g) of the Transfer of Property Act also and in those cases the provisions of the law contained in Section 112 of the Transfer of Property Act may apply. In the instant case, as the case is not covered by Section 111(g) of the Transfer of Property Act, the provisions of Section 112 of the Transfer of Property Act cannot apply. 10. The learned counsel for the defendant-respondent relied on some authorities also to support the contention raised by him. He drew my attention to the case of Shiva Prasad Singh v. Smt. Mandira Kumari Debi, AIR 1940 Patna 478, acceptance of rent accruing due after a forfeiture amounts to waiver and the giving of a notice to quit also amounts to a waiver because the giving of a notice recognises the continuance of a tenancy. This was a case to which the provisions of the Transfer of Property Act applied. This was a case to which the provisions of the Transfer of Property Act applied. In the case of forfeiture covered by Section 111(g) of the Transfer or Property Act a notice has to be given determining the tenancy after the act of forfeiture has been committed. If a notice is given under Section 106 of the Transfer of Property Act, then as under such notice a tenancy terminates only after the expiry of the period mentioned in that notice, the landlord indirectly accepts the continuance of the tenancy of the tenant upto that date and this act naturally amounts to a waiver of forfeiture for in case of a forfeiture the tenancy determines when the forfeiture is committed. This ruling therefore, which relates to a case to which Section 111(g) of the Transfer of Property Act applies cannot help the defendant. 11. The next case on which reliance was placed is that of Chotu Mia v. Mt. Sundri, AIR 1945 Patna 260. My attention was drawn to certain observations made in that case at page 261 which read as follows :- "The forfeiture in this case occurred on the 27th May, 1936 when the mother of the defendant in her written statement in the rent suit denied the plaintiff's title. The amount of rent then due by the mother of the defendant was Rs. 2 and as the son of the plaintiff accepted the sum of Rs. 9 it is clear that rent to the amount of Rs. 7 which had become due since the forfeiture was accepted. All that case, I think, be said on behalf of the plaintiff is that as, in the notice which he sent to the defendant he said that a sum of rupees 7-5-0 was due to him by way of damages for use and occupation, it ought to be presumed that in accepting the money order his son accepted Rs. 7 out of the Rs. 9 which was remitted not as rent due as damages for use and occupation. The money was however, remitted as rent and under the form of money order used for that purpose and that defendant in making the payment undoubtedly by intended it as a payment of rent." It was later observed following the case of Croft v. Lumley (1858)10 ER 1459, that the party paying the money had a clear right to appropriate it. He distinctly paid the money as rent. He refused to pay it otherwise than as rent. In the circumstances the landlord should have declined to take the money at all if he meant to elect to proceed for a forfeiture. These observations do not apply to this case, for in the instant case the landlord had a right to receive the amount which he received from the tenant as rent for the period during which he occupied the premises as tenant as the tenancy terminated only after the date up to which the amount that was paid had fallen due. Similarly the observations made in this case at page 262 to the following effect : "I think clear that acceptance of rent which has accrued due subsequent to a forfeiture and prior to the institution of a suit in ejectment operates as a waiver of the forfeiture." Do not apply to the instant case as the case is not covered by Section 112 of the Transfer of Property Act. The learned counsel relied on a case of this Court, viz., Shiam Behari Lal Gour v. Madan Singh, AIR 1945 Allahabad 293, wherein at page 297 it has been remarked : "Omission to pay rent or even refusal to pay by itself, cannot be held to constitute a definite and unequivocal disclaimer of the title of the landlord." It is a case where the defendant has renounced his character as tenant by saying he was not liable to pay rent and according to the control of Rent and Eviction Act, a tenant is one who is liable to pay rent. Therefore when a person who is liable to pay rent says that he is not liable to pay rent he renounces his character as a tenant. The observations on which reliance is placed from this ruling also, therefore, do not apply to the instant case. 12. The learned counsel then referred to another case of this Court viz., Ram Dass v. Lachman Janki, 1961 ALJ 644, wherein at page 647 it has been remarked : "The question of forfeiture of tenancy is often be set with difficulty. There is a plethora of cases, both Indian and foreign, on the topic but a search for an exactly applicable authority would often go unrewarded. It is, therefore necessary to be clear about the principle that surround and govern forfeiture of tenancy rights. There is a plethora of cases, both Indian and foreign, on the topic but a search for an exactly applicable authority would often go unrewarded. It is, therefore necessary to be clear about the principle that surround and govern forfeiture of tenancy rights. Firstly, the denial of the landlord's title must be unequivocal and absolutely definite for the law strongly leans against forfeiture, See Shaim Bihari Lal Gaur v. Madan Singh (supra). Secondly when the landlord's title is denied in writing the writing should be construed as a whole without giving undue emphasis to one or the other part of it...........Thirdly the onus of proving forfeiture of tenancy rights lies on the landlord plaintiff. He must unambiguously prove that the lessee has directly and unequivocally repudiated his title to the demised property and has thereby list his tenancy rights." The case does not help the defendant. It was a case to which the provisions of the Transfer of Property Act applied. Apart from it, in the instant case, as has already been pointed out above the intention expressed by the defendant is unequivocal. He denied his liability to pay rent and said to that some body else was liable to pay rent even though actually he himself was liable to pay the same. 13. Lastly reliance was place on a ruling of the erstwhile Chief Court of Oudh, viz, Raja Sri Amar Krishna Narain Singh v. Sheikh Nazir Husain, AIR 1939 Oudh 2573, by drawing my attention to certain observations made at page 268 where certain remarks of Seshagir Ayyar, J., at page 632 in Komalukutti v. Muhamed : ILR 41 Madras 629 and of Napier, J., in the same case at page 636 were cited with approval. The observations of Seshagir Ayyar, J. read as follows : "In ordinary parlance the expression 'renounce' would connote that some Act is done to the knowledge of the landlord which was calculated to convey to him the impression that he repudiated his title". The remark of Napier, J., read as follows :- "It seems to me that both the words 'repudiation' and 'renunciation' require something a great deal stronger than a mere assertion not communicated to the landlord. The remark of Napier, J., read as follows :- "It seems to me that both the words 'repudiation' and 'renunciation' require something a great deal stronger than a mere assertion not communicated to the landlord. It is impossible to lay down a hard and fast rule, but to my mind a very good test to apply would be whether the assertion would operate as a starting point for adverse possession against the landlord...............and viewed in this light the assertion will not come within its mischief." The case on which reliance was being placed related to a case to which the provisions of Section 111(g)(2) applied and for the reason already stated is not relevant for the purposes of this case. 14. Altogether therefore there has been a renunciation by the defendant of his character as a tenant and there has been no waiver on the part of the plaintiff or condonation of the conduct of the tenant. The suit was therefore rightly decreed by the learned Munsif and the decree passed by the learned Civil Judge is not correct. The appeal is accordingly allowed, the decree of the learned Civil Judge is set aside and that of the Munsif restored with this modification that future mesne profits the plaintiff-appellant will be entitled to recover at the rate of Rs. 26.25 P. per mensem upto the date of delivery of possession to the plaintiff, or the relinquishment of possession by the defendant with notice to the plaintiff through court or the expiry of three years from the date of the decree mesne profits indefinitely to the date of ejectment. The defendant shall bear the costs of the plaintiff through out.