Judgement This is a second appeal against the judgment and order of the learned Addl. District Judge, Tripura, setting aside the judgment and decree of the learned Munsiff, Dharmanagar, and dismissing the plaintiffs-appellants suit for recovery of rent and compensation. 2. The facts, out of which this appeal arises, may be stated briefly. The defendants-respondents 1 and 2 took a lease of the suit premises by virtue of an unregistered lease deed dated 16th January, 1959 on an annual rent of Rs. 94/-. This lease commenced from the month of Pous, 1365 B. S., and, accordingly, it expired on Agrahayan, 1366, B. S. As the defendants 1 and 2 had not paid any rent for these 12 months, the plaintiffs filed a suit and subsequently obtained a decree of rent up to the month of Agrahayan, 1366 B. S. in M. S. No. 41 of 1959. Sometime later, the plaintiffs instituted a suit against the defendants 1 and 2 for eviction, but that suit was withdrawn. The records are not available here on what ground that suit for eviction had been withdrawn. In any case, the admitted position is that the suit for eviction was withdrawn. There are no records to show whether upon withdrawal, the said suit was dismissed for non-prosecution. The plaintiffs then instituted a suit against the same defendants 1 and 2 (defendant-respondents in this second appeal) for recovery of rent for 21 months commencing from Pous, 1356 B. S. to Bhadra, 1368 B. S. and also for compensation amounting to Rs. 26/-. This suit for recovery of rent was decreed in favour of the plaintiffs by the trial Court, but on appeal the learned Additional District Judge set aside the decree and dismissed the plaintiffs suit. Hence this second appeal. 3. In the appeal, the learned Additional District Judge addressed himself to two points, namely, (1) whether the appellants-defendants are tenants under the respondents-plaintiffs with respect to the suit premises. (2) Whether the respondents-plaintiffs are entitled to get rent and compensation as claimed by them. 4. The learned Appellate Court below found that the appellant-defendants (respondent-defendants here) were not tenants under the plaintiffs-appellants, since the respondents could not be treated as tenants, holding over. On that ground, it was held that the plaintiffs-appellants could not recover any rent from the defendants-respondents, although they were left free to sue for use and occupation of the suit property. The learned Appellate Court below found that the appellant-defendants (respondent-defendants here) were not tenants under the plaintiffs-appellants, since the respondents could not be treated as tenants, holding over. On that ground, it was held that the plaintiffs-appellants could not recover any rent from the defendants-respondents, although they were left free to sue for use and occupation of the suit property. 5. The principal question that falls for determination in this second appeal is whether the defendants can be held to be tenants holding over, on the facts and circumstances of the case. In other words, the question depends on what is the true scope and effect of Section 116, T. P. Act 6. Mr. R. Ghosh, learned counsel, appearing for the plaintiffs-appellants, submits that the defendants must be treated to be tenants holding over. He first invites my attention to the lease-deed dated 16th January, 1959, on basis of which the plaintiffs had obtained a decree of rent. It cannot, therefore, be disputed, nor indeed is it disputed, by the defendants-respondents that they were tenants of the plaintiffs from Pous, 1365 until Agrahayan, 1366. From this position, Mr. Ghosh takes his case a step further. He submits that once it has been proved that a person is a tenant of a certain landlord and is continuing in possession of the premises under tenancy upon some manner of assent, either by acceptance of rent or otherwise, by the landlord, such person must be ascribed the status of a holding over tenant. In other words, the obligations of tenancy, as contemplated under Section 116 of the T. P. Act, will be fastened on such a person. Mr. Ghosh submits that there can be no question that the defendants 1 and 2 were initially tenants under the plaintiffs. He next submits that upon expiry of the period of tenancy under the lease deed dated 16th January, 59, defendants 1 and 2 continued to be in possession of the tenancy premises. He then submits that although a suit for eviction had been instituted by the plaintiff, that suit had been withdrawn and after its withdrawal, a suit for recovery of rent had been filed. He then submits that although a suit for eviction had been instituted by the plaintiff, that suit had been withdrawn and after its withdrawal, a suit for recovery of rent had been filed. He contends that such suit for recovery of rent, following the withdrawal of the suit for eviction and accompanied by a continued possession of the premises by the defendants, will confer on the persons concerned the status of holding over tenants under Section 116, T. P. Act. 7. In support of his submission, Mr. Ghosh had drawn my attention to Ramsunder v. Bataso Kuer, AIR 1935 Pat 271, where James, J., had observed :- "If a tenant holds over after the expiry of his lease he ordinarily becomes a trespasser, unless the landlord in some manner signifies his intention of recognizing the continuance of the tenancy, which is sufficiently indicated by the fact that the suit for rent has been instituted." 8. Mr. Ghosh submits that in the instant case, the landlord that is to say, the plaintiff had signified his requisite intention by instituting the suit for rent and recognized thereby the continuance of the tenancy. In other words, he submits that the present case is on all fours with the case decided above. 9. As regards the suit for eviction of the defendants, Mr. Ghosh submits that the withdrawal thereof amounts to waiver. He submits that just as a notice can be waived by some subsequent act or conduct, the withdrawal of the suit for eviction would equally amount to a waiver, particularly when a suit for recovery of rent was instituted thereafter. 10. In support of this submission, Mr. Ghosh has drawn my attention to the decision in Padam Chand v. Atar Singh, AIR 1972 All 217 wherein Trivedi, J., has held - "Where pending Second Appeal against dismissal of ejectment suit landlord writes to the tenant that he would withdraw the appeal and that the tenant should pay him rent due till then within 30 days, failing which he would be liable to ejectment the only inference possible is that the landlord waived first notice of termination and created a fresh tenancy in favour of defendant." 11. Mr. Mr. Ghosh has also referred me to Tayabali v. Ahsan and Co., AIR 1971 SC 102 , where their Lordships had held - "It seems to us that on the facts which have been established the landlord was bound to fail. It is abundantly clear that he had, in the second notice dated October, 18, 1957, treated the tenancy as subsisting and not only the respondent was described as a monthly tenant but also in the plaint, even after the amendment had been allowed, rent was claimed upto November, 1957; thereafter the amount due was described as compensation for use and occupation. The plaintiff was thus fully alive to the distinction between rent and damages for use and occupation and it cannot be said that he had abandoned the second notice and asked for the same to be treated as non est or that he had relied solely on the first notice dated June 13, 1956. Under Section 113 of the Transfer of Property Act a notice given under Section 111, 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." ............ ............ ........... "In the present case there can be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent of the tenant to whom the first notice had been given because he had even made payment of the rent which had. been demanded though it was after the expiration of the period of one month given in the notice." 12. Mr. Ghosh has also drawn my attention to Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124 and particularly to para 9 thereof, which reads as under - "On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. Mr. Ghosh has also drawn my attention to Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124 and particularly to para 9 thereof, which reads as under - "On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by S. 116. T. P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act. As Section 116, T. P. Act, expressly mentions an under-lessee, defendants 2 and 3 would obviously come within the purview of the section, and it is not disputed that they did continue in possession after the lease expired by lapse of time. If, therefore, it is established on the facts of this case that the plaintiff assented to the continuance of possession of defendants 2 and 3 in respect of the demised premises by acceptance of rent or otherwise, these defendants Would certainly acquire the status of tenants under Section 116, T. P. Act." 13. In short, Mr. Ghoshs submission is that once a tenancy has been shown to have existed between the defendants and the plaintiffs and also when it has been established that the defendants had continued to be in possession of the demised premises, the landlords (plaintiffs) assent to the continuance of such tenancy, as required under Section 116 of the T. P. Act, can be evidenced not only by his acceptance of rent, but also by his institution of a suit for rent. Mr. Mr. Ghosh also submits that even where there had been a suit for eviction, once such suit had been withdrawn, it must, in law, be treated in the same manner as the withdrawal or waiver of a notice. 14. Mr. A. M. Lodh, learned coun-itel appearing for the defendants-respondents, has submitted that no doubt, as held in Money Suit 41 of 1959, there was a lease of the demised premises between the defendants 1 and 2 and the plaintiffs from Pous, 1365 B. S., until Agrahayan, 1366 B. S. But, after Agrahayan, 1366 B. S., irrespective of the fact that the defendants 1 and 2 did continue to be in possession of the demised premises, they could not be saddled with the status or obligation of a holding over tenant, in view of the fact that there had been no assent, in any manner, to such tenancy on the part of the plaintiff. On the contrary, Mr. Lodh submits, by instituting a suit for eviction, the plaintiff had clearly indicated his intent of dis-owning the defendants as his tenants and had denied the continuance of any such tenancy. Mr. Lodh then submits, that a mere withdrawal of such suit for eviction, followed by a suit for recovery of rent, cannot constitute assent on the part of the plaintiffs, particularly, when during the two years that had elapsed between the withdrawal of suit for eviction and institution of the suit for recovery of rent, there had been no demand for rent, nor any payment and offer of rent. On these premises, Mr. Lodh submits that no assent on the part of the plaintiff can be presumed from any act of conduct on his part, nor can any offer on the part of the defendants to continue as a holding over tenant be gathered from any act or conduct of the latter. He further submits that even in the case of a holding over tenancy under Section 116 of T. P. Act, such fresh tenancy must be created by an offer, evidenced by some act or conduct on the part of the tenants to take a new lease and acceptance thereof by the landlord. In support of this, Mr. Lodh has referred me to the decision in Bhawanji v. Himatlal, AIR 1972 SC 819 . In support of this, Mr. Lodh has referred me to the decision in Bhawanji v. Himatlal, AIR 1972 SC 819 . where Mathew, J. has held : "The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act. a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In 1949 FCR 262 : AIR 1949 FC 124, the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations :- Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latters offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raised more readily and clearly the implication of an agreement between the parties to create a fresh tenancy." 15. Mr. Lodh has also pointed out to me the absence of any averment in the plaint regarding any assent by the plaintiffs to the continuance of the tenancy. Indeed, he submits that there was no reference whatsoever in the plaint to the earlier suit for eviction that had been withdrawn. 16. I have very carefully considered the submissions by both the learned counsel. I am, however, of the opinion, following the decision in AIR 1935 Pat 271, that the landlords intention to recognize continuance of the tenancy may be signified inter alia, by the institution of a suit for rent. I also hold that the mere institution of a suit for eviction, particularly when such suit was subsequently withdrawn, will not necessarily override or be repugnant to an intention to recognize continuance of the tenancy, that may well be signified by the landlords subsequent institution of a suit for rent. The withdrawal of the suit for eviction may be held, where the facts so justify, to have the same effect as a withdrawal or waiver of a notice. 17. The withdrawal of the suit for eviction may be held, where the facts so justify, to have the same effect as a withdrawal or waiver of a notice. 17. No doubt, holding over of a tenancy under Section 116. T. P. Act is a bilateral act, as has been contended by Mr. Lodh. The tenants continuing in possession of the demised premises, however, can well be held to be a tacit offer of taking a fresh lease, particularly when there is no evidence on record to the contrary or repugnant thereto. In the instant case, it is not disputed that the tenant did continue in possession. Accordingly, I hold that such continuance must in the absence of any evidence on record to the contrary, be taken to be a tacit offer to take a fresh lease. Similarly, the institution of the suit for rent must be considered to be evidence, indicating assent on the part of the landlord (plaintiff) to recognize defendants 1 and 2 as his continuing tenants. 18. In the above view of the matter, I am of the opinion that defendants 1 and 2 must be held to be holding over tenants under Section 116 of the T. P. Act. The decision of the learned Addl. District Judge must, therefore, be set aside. 19. The second question, that is to say, whether the defendants-respondents are liable for any rent as tenants and. if so, for what amount, and whether the plaintiffs are entitled to any compensation has not been gone into by the learned appellate Court below. These are essentially questions of fact, which cannot be decided by this Court in a second appeal, particularly when there is no decision on these points by the learned appellate Court below. In that view of the matter, this case must go back on remand to the Court of learned Addl. District Judge for his decision on this second point, namely what amount of rent and compensation the defendants-respondents are liable to pay to the plaintiff-appellants. 20. This second appeal is disposed of as indicated above. The records will be sent down for disposal of the case, in the light of my above observations, and in accordance with law, within six months from the date of receipt of the records. Case remanded.