JUDGMENT S.N. Singh, J. - This is a defendant's appeal in a suit for ejectment and arrears. 2. It appears that after the termination of tenancy by notice dated 1-9-57 the plaintiff instituted the suit on 20-2-1958 and after the institution of the suit the defendant remitted certain amount which was due to the plaintiff-respondent from defendant for a period prior to the termination of the tenancy as well as for a period subsequent to the termination of the tenancy. This money order had been received after the institution of the suit. The plaintiff accepted the money order with a note that this acceptance was without prejudice to the suit already filed. 3. Both the courts below have decreed the suit for ejectment as well as arrears of rent. 4. The defendant has now come up to this Court in appeal and the only point raised in this appeal is that the acceptance of rent by the plaintiff after the institution of the suit for the period subsequent to the termination of the tenancy would amount to waiver or creation of a fresh tenancy by the plaintiff in favour of the defendant. The learned counsel for the appellant has in support of his submission cited a decision of this Court reported in Mohan Lal v. Sameer Kunwar, AIR 1964 Allahabad 374. 5. I have heard learned counsel for the parties at great length and have looked into a number of authorities of this Court as well as of other courts and on reviewing all the authorities cited before me and having looked into the relevant sections of the Transfer of Property Act I am of opinion that the decisions of the courts below have to be upheld. 6. In order to appreciate the arguments it will be pertinent to notice Secs. 112, 113 and 116 of the Transfer of Property Act which are reproduced below: - 112. 6. In order to appreciate the arguments it will be pertinent to notice Secs. 112, 113 and 116 of the Transfer of Property Act which are reproduced below: - 112. A forfeiture under Sec. 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such 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 the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. 113. A notice given under Sec. III, 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. ILLUSTRATIONS: (a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived. (b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit The first notice is waived. 116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106. ILLUSTRATIONS: (a) A lets a house to B for five years. B under lets the house to C at a monthly rent of Rs. 100/-. The five years expire, but C continues in possession of the house and pays the rent to A. Cs lease is renewed from month to month. (b) A lets a farm to B for the life of C. C dies but B continues in possession with A,s assent. 100/-. The five years expire, but C continues in possession of the house and pays the rent to A. Cs lease is renewed from month to month. (b) A lets a farm to B for the life of C. C dies but B continues in possession with A,s assent. B,s lease is renewed from year to year. 7. These three sections have to be read along with sections 111 (g), 111 (h) and 111 (a) respectively. Mere acceptance of rent before the institution of suit in a case falling under Sec. 112 will act as waiver of forfeiture as a matter of law as provided in the section itself. Similarly for the purposes of Sec. 116 mere acceptance of rent after the expiry of the term of the lease will be a proof of holding over as provided in the section. In cases covered by the above two sections even if the rent is accepted under protest the same will not produce a different result. But so far as Sec. 113 of the Transfer of Property Act is concerned acceptance of rent after the termination of tenancy may be a proof of implied consent in view of illustration "a" to that section but when the landlord expressly states that the amount is being accepted without prejudice to his suit it clearly shows that there is neither express nor implied consent of the landlord to treat the lease as subsisting. 8. I have already pointed out the difference in the language of the three sections quoted above as such an authority interpreting Sec. 112 or 116 of the Act cannot be a useful guide for the interpretation of Sec. 113 of the Act. Reliance placed on Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another, A.I.R. 1949 F.C. 124 by the learned counsel for the appellant is of no help to him. In order that there may be a waiver there must be an acceptance by the landlord with an intention to treat the lease as subsisting. This is not so is clear from the acceptance of the money order with a note appended to it. There cannot be waiver after the institution of the suit as held by this Court in Moti Lal v. Basant Lal, AIR 1956 Allahabad 175 and Khumani v. Saktey Lal, AIR 1952 Allahabad 579. This is not so is clear from the acceptance of the money order with a note appended to it. There cannot be waiver after the institution of the suit as held by this Court in Moti Lal v. Basant Lal, AIR 1956 Allahabad 175 and Khumani v. Saktey Lal, AIR 1952 Allahabad 579. Apart from these two Allahabad cases all the submissions which have been advanced by the learned counsel for the appellant are met by the decision of their lordships of the Bombay High Court reported in Navnitlal Chunilal v. Baburao (No. 1), A.I.R. 1945 Bom. 132 (D.B.) (Stone, C.J. and Kanhiya, J.) The ruling relied upon by the learned counsel for the appellant reported in Mohan Lal v. Sameer Kunwar, AIR 1964 Allahabad 374 is distinguishable and does not apply to the facts of this case and it should be applied to the peculiar facts of that case. No case was set up in any of the two courts below about the creation of fresh tenancy by the defendant. The only case set up was about waiver. I have already held that there cannot be any waiver in the circumstances of this case. The so-called rent accepted in this case will be deemed to have been accepted as compensation for use and occupation for the period subsequent to the termination of the tenancy. No question of fresh tenancy also arises because in order that fresh tenancy may be created there must be a consensus between the two parties. There is nothing of this kind in the present case. The facts of the reported case which has been relied upon by the learned counsel are distinguishable, as such, it does not help him. In that case question of estoppel was raised which was accepted by the learned Judge. In face of the two earlier decisions of this court Moti Lal v. Basant Lal, AIR 1956 Allahabad 175. and Khumani v. Saktey Lal, AIR 1952 Allahabad 579 which are applicable on all force to the present case this appeal cannot succeed. 9. Accordingly the appeal fails and is hereby dismissed. In the circumstances of the case, I direct the parties to bear their own costs of this Court.