DATTA, J. ( 1 ) THIS is an appeal by the defendant since deceased and substituted by his legal representatives, against a judgment and decree decreeing the plaintiff's suit for khas possession of the suit premises on eviction of the defendant therefrom. The suit premises being Premises Nos. 10a, 10b and 10c, Townshend Road, P. S. Bhowanipur, Calcutta were demised to the defendant on the basis of an indenture of lease dated July 16, 1952 for a period of fifteen years commencing from May 1, 1952 at a rent of Rs. 850/- per month payable by 7th of the next month. ( 2 ) THE relevant terms and conditions of the said lease were: (a)the lessee was to pay the municipal rates and taxes in both shares, and (b)to execute necessary repairs to demised premises as mentioned in the schedule of repairs attached to the indenture of lease. According to the plaint, the defendant committed the following breaches of express conditions of lease: - (a)the defendant defaulted in payment of rent in terms of lease and on adjustment a sum of Rs. 4,217/- was due calculated upto July, 1956. (b)the defendant failed to pay municipal rates and taxes duly. (c)the defendant failed to execute works of Item Nos. 3, 6, 7, 8, 16 and 21 of the schedule of repairs. ( 3 ) THE plaintiffs served a notice dated July 30, 1956 upon the defendant by registered post with A/d intimating their intention to determine the lease and to re-enter the premises. An opportunity was also given to the defendant to remedy the breaches within a month from the notice i. e. by August 30, 1956. In spite of determination of lease by forfeiture the defendant did not vacate the suit premises and deliver vacant possession to the plaintiffs nor remedied the breaches. The plaintiffs in the premises instituted the suit on January 4, 1957, praying for a decree for possession of the suit premises as also for Rs. 4,217/- on account of rent in arrears and for mesne profits till possession was delivered to the plaintiffs. ( 4 ) THE suit was contested by the defendant who filed a written statement as also an additional written statement denying the material allegations made in the plaint. It was denied that any some was due on account of rent or municipal rates and taxes. ( 4 ) THE suit was contested by the defendant who filed a written statement as also an additional written statement denying the material allegations made in the plaint. It was denied that any some was due on account of rent or municipal rates and taxes. The allegations about the defendant's failure to repair were also denied as untrue. It was also contended that the notice was invalid, insufficient and not legal. It was also his specific case that he was entitled to a total sum of Rs. 18,198/- for repairs effected by him, and after credit of Rs. 7,098/- given by the plaintiff a sum of Rs. 6,073/- was due to him, apart from Rs. 38,615-4-0 which the defendant spent for additional repairs and for recovery of the same, defendant reserved his right to take proper steps. The defendant also pleaded waiver of breaches if any. ( 5 ) THE suit was tried on evidence and a commission for local inspection was issued to report as to whether the repairs in Item Nos. 3, 6, 7, 8, 16 and 21 were executed. The Commissioner found that repairs in respect of items 3 and 7 relating to dismantling of roof in second floor and construction of new concrete roof were not carried out. The repairs of Item Nos. 16 and 21 were not done while as to Item No. 8, the reconstruction of roof was not done though the existing ceiling was thoroughly repaired. The learned Judge found on evidence that the defendant incurred the penalty of forfeiture not only for not effecting repairs stipulated but also for non-payment of rent. It was also held that the lease was not void for non-disclosure of latent defects in the premises as contended by the defendant. It was however observed that the defendant could contend that time limit in the notice for remedying breaches of covenants relating to repairs was short, but as the plaintiff exercised the option of forfeiture of lease for non-payment of rent as well, the notice was valid and sufficient. The suit was accordingly decreed for possession as also for Rs. 4,217/- for arrear rent and taxes calculated upto July, 1956. As to the claim for mesne profits and taxes, the same, it was provided, would be assessed on the plaintiff's application after recovery of possession. The present appeal is against this decision by the defendant. The suit was accordingly decreed for possession as also for Rs. 4,217/- for arrear rent and taxes calculated upto July, 1956. As to the claim for mesne profits and taxes, the same, it was provided, would be assessed on the plaintiff's application after recovery of possession. The present appeal is against this decision by the defendant. ( 6 ) MR. Syama Charan Mitter, the learned Counsel for the appellants, has contended that the plaintiffs could not take any advantage of the alleged breaches of repairs, as there was a variation of the provisions of the lease by subsequent agreement in regard to such repairs. The concrete roof was agreed to be substituted by asbestos covering and item 7 was also agreed to be postponed. It was also stated in his evidence that the talks resulting in the said agreement took place in May, 1952. Mr. Mitter in support referred to various correspondence like Exhibits 3 (d), 3 (j), 3 (k) and 3 (p) and contended that non-mention of substitution of asbestos covering in the lease executed subsequently on July 16, 1952 as of no consequence, as may repairs already executed, were again reproduced in the schedule of repairs to the lease. Further, Ex. 3 (p) clearly indicated that there was a waiver of such repairs by the plaintiff. ( 7 ) MR. D. De, the learned Counsel for one set of the plaintiffs contended that in view of sections 91 and 92 of the Evidence Act, the defendant was precluded for adducing oral evidence varying the terms of the registered lease. It was also pointed out that no plea of the variation of agreement of or waiver was taken in the written statement. Mr. De referred to the Exhibits 3 series, in particular to Exhibits 3 (o), 3 (u), 3 (v), which would disprove any subsequent agreement or waiver as alleged by the defendant. ( 8 ) ON a consideration of the evidence on record we are unable to hold that there was any agreement varying the terms of the lease. There is no case of subsequent agreement either in the contemporaneous correspondence or in the written statement nor such agreement could be said to have been established on the evidence adduced either oral or documentary. There is no case of subsequent agreement either in the contemporaneous correspondence or in the written statement nor such agreement could be said to have been established on the evidence adduced either oral or documentary. While the plaintiff Gokul P. W. 1, was not cross-examined on the subsequent agreement, it would also be improbable that if such repair of Items 3 and 7 was intended to be varied, it would again find mention in the lease. The correspondence at no place indicated that there was such variation and in the contrary while the plaintiff had been drawing the defendant's attention to his failure in making the stipulated repairs Ex. 3 (v), in reply in Ex. 3 (y), no case of variation of the agreement in regard to the said repairs was even mentioned or made out by the defendant. Nor do we consider that there was any waiver of the defendant's obligations for repairs by the plaintiff and Exhibit 3 (p) was merely a statement of position of the accounts between the parties as upto December, 1955 and it could not be taken as waiver by the plaintiffs as contended. There is no dispute that the repairs mentioned above were not done as found by the learned Judge and consequently there was no fetter on the plaintiffs in pursuing their remedies to which they were entitled in law. ( 9 ) THE next point urged by Mr. Mitter is about notice and it is contended the time for remedying the breach was too short as found by the learned Judge to enable the defendant to remedy the breaches allege. Accordingly the notice of intention to determine the lease on alleged breach was invalid in law. It may be mentioned that the learned Judge did not hold that the notice so far as the breaches were concerned was bad in law, and it was only pointed out that time limit was short if the defendant elected to remedy the breach. It is also to be noted that, as pointed out by Mr. De, no grievance on account of the short time limit was ever made by the defendant in contemporaneous correspondence or in the written statement. It is also to be noted that, as pointed out by Mr. De, no grievance on account of the short time limit was ever made by the defendant in contemporaneous correspondence or in the written statement. On the contrary in the written statement, the defendant denied that he committed any breach of the provisions of the lease on his part to be performed while in evidence a case of subsequent agreement varying the terms of the lease was unsuccessfully sought to be made out. We are, therefore, of opinion that the notice was not bad on the ground that the time for remedying the breach was too, short, as this grievance was not made till during argument before under section. ( 10 ) AN argument was sought to be made that the lease was hit by the premises tenancy acts, so that the plaintiffs were not entitled to a decree except under one or more of the grounds of eviction provided in such Acts. It may be mentioned that the West Bengal Rent Control (Temporary Provisions) Act, 1950, was a temporary act and expired on or about 30th April, 1956 so that the instant lease could not be hit or governed by the Act. As to the West Bengal Premises Tenancy Act, 1956, 'it is obvious that the lease came into existence long before 1956 so that this Act also would not be applicable to the present demise. ( 11 ) MR. Mitter has further contended relying on (1) Chotu Mia v. Md. Sundri, AIR 1945 Pat 260 and in (2) Motilal v. Pure Jambad Colliery, 44 Calwn 1109 that even after a forfeiture is incurred, the lease is merely voidable and could only be terminated by a formal notice. We find that in the notice Ex. 2, there is clear statement that in the view of the forfeiture of the lease, both for non-payment of rent and as also breaches of express covenants the lease stood determined and further the notice was being issued conveying the lessors' intention to determine the lease. Accordingly it could not be said that the lease suffers from the defect as contended. ( 12 ) THE appellants have filed on August 9, 1971 an application under section 114 of the Transfer of Property Act, 1882 for relief against forfeiture for non-payment of rent. There is now no dispute that a sum of Rs. Accordingly it could not be said that the lease suffers from the defect as contended. ( 12 ) THE appellants have filed on August 9, 1971 an application under section 114 of the Transfer of Property Act, 1882 for relief against forfeiture for non-payment of rent. There is now no dispute that a sum of Rs. 4,217/- is due as arrear for rent as claimed in the suit. In view of our finding that the lease stood determined also for breach of other covenants of the lease and by notice, this application would not be maintainable. Even if it were so, the relief under this section is discretionary. The lease, as we have seen, was for fifteen years from May 1, 1952, so that the lease apart from any other consideration stood determined by efflux of the time with expiry of April, 1967. There is, therefore, no further scope for granting any relief against forfeiture as claimed. The application accordingly is dismissed, without any order as to costs. ( 13 ) MR. Ashok Kumar Sen Gupta, the learned Counsel for another set of the plaintiff as contended in addition that the lease having expired by efflux of time, the defendant and his legal representatives on the expiration of the lease were mere trespass in respect of the suit premises. The plaintiffs in the circumstances became entitled to possession of the suit premises and thus to a decree for such possession on eviction of the heirs and legal representatives of the defendants from the suit premises. We do not consider that a decree for possession of this ground should be passed as the cause of action for such decree was different and not available when the suit was instituted. For such relief, no remedy can be granted in this appeal by this Court. ( 14 ) AS all contentions raised on behalf of the appellants fail, this appeal is dismissed with costs. ( 15 ) IT is stated by Mr. Sen Gupta, the learned Advocate for the respondent that in pursuance of the orders passed in the Rule, certain sums were deposited and out of the amount so deposited, a portion has been withdrawn and the balance amount is lying in Court. Mr. Sen Gupta wants an appropriate order for withdrawal of the amount by the respondent. This prayer is not objected to by the appellant. Mr. Sen Gupta wants an appropriate order for withdrawal of the amount by the respondent. This prayer is not objected to by the appellant. Let the amount lying in Court be allowed to be withdrawn on appropriate application being made in the trial court. On the prayer of Mr. Satyajit Banerji, the learned Advocate for the appellant, the operation of the judgment is stayed for a period three weeks after the re-opening of the Court after the long vacation. Dutt, J. : I agree. Appeal dismissed.