S. H. SHETH, J. ( 1 ) THE plaintiff filed the present suit against the defendant for recovering possession of an open plot of land on the ground that he reasonably and bona fide required it for erecting a new structure for occupation by his son. The suit premises are an open plot of land admeasuring 1400 square feet and are situate at Deesa. They were let out to the defendant on July 1 1958 at a monthly rent of Rs. 3. 00. The defendant has been running there a coal depot. The defendant by his written statement contended that the statutory notice served upon him by the plaintiff was invalid because he was an yearly tenant of the plaintiff in respect of the suit land that the plaintiff had waived that notice by acceptance of rent and that therefore he could not maintain the suit. On merits he contended that the plaintiff has got a permanent accommodation elsewhere and that therefore he does not reasonably and bona fide require the suit land for any purpose. The learned trial Judge upheld the plaintiffs case on merits but held that by acceptance of rent the plaintiff had waived the statutory notice and the cause of action which accrued to him thereunder. He therefore dismissed the suit. ( 2 ) THE plaintiff appealed to the District Court against the decree passed by the learned trial Judge. The learned District Judge held that the cause of action which accrued to the plaintiff was not waived by him by acceptance of rent from the defendant. He confirmed the other finding recorded by the learned trial Judge. He therefore allowed the apple reversed the decree passed by the learned trial Judge and passed in favour of the plaintiff decree for possession. ( 3 ) IT is that appellate decree which is challenged by the defendant in this Civil Revision Application. ( 4 ) MR. Majmudar appearing for the defendant has firstly contended before me that the statutory notice served by the plaintiff upon the defendant was invalid because the defendant was an yearly tenant. No rent note has been produced in this case. It appears that the suit land was let out to the defendant by the plaintiff under an oral transaction. All that the defendant has relied upon is that the plaintiff used to collect from him rent every year and not every month. No rent note has been produced in this case. It appears that the suit land was let out to the defendant by the plaintiff under an oral transaction. All that the defendant has relied upon is that the plaintiff used to collect from him rent every year and not every month. The evidence shows that the suit land had been let out to the defendant at a monthly rent of Rs. 3/for a business purpose. It is quite clear from the evidence that payability of rent by the defendant to the plaintiff in respect of the suit land was from month to month though the plaintiff might have collected rent not every month but at the end of a year. Payability of rent is different from the actual mode adopted for its collection. If the payability of rent is from month to month and if the plaintiff collects rent at the and of every year it does not convert a monthly tenancy into an yearly tenancy. In my opinion therefore the finding recorded by the court below on this-aspect of the case is correct and must be upheld. Otherwise and the finding recorded on this aspect is a finding of fact with Shall cannot interfere in this Civil Revision Application. The first contention raised by Mr. Majmudar therefore fails and is rejected. ( 5 ) THE second contention which Mr. Majmudar has raised before me is that the right which accrued to the plaintiff under the statutory notice served by him upon the defendant was waived by him by acceptance of rent from the defendant. The facts of the case show that the plaintiff served upon the defendant statutory notice by which he determined his tenancy and also called upon him to pay the arrears of rent specified therein. It was a composite notice to quit and notice of demand of arrears of rent. In response to the statutory demand of rent made by the plaintiff upon the defendant the defendant remitted to the plaintiff the arrears of rent which the plaintiff accepted. It was a composite notice to quit and notice of demand of arrears of rent. In response to the statutory demand of rent made by the plaintiff upon the defendant the defendant remitted to the plaintiff the arrears of rent which the plaintiff accepted. It cannot be said therefore that if the defendant complied with the demand made by the plaintiff on him in respect of arrears of rent and if the plaintiff accepted rent remitted by the defendant in such compliance the plaintiff waived his right to sue which accrued to him under the statutory notice served by him upon the defendant. In my opinion therefore the learned appellate Judge was justified in recording the conclusion that the plaintiff had not waived either the statutory notice or the right to sue which secured to him under that statutory notice. The second contention raised by Mr. Majmudar is therefore without any substance and must be rejected. ( 6 ) THE question which Mr. Majmudar has raised before me is that the present case fell under sec. 13 (1) (g) and that it ought to have been tried on that basis. Mr. Desai has argued before me that the present suit fell under sec. 13 (1) (i) and that it ought to have been decided on that basis. In order to decide whether the present case falls under sec. 13 (1) (g) or sec. 13 (1) (i) it is necessary to have a look at the pleadings. In paragraph 2 of his plaint the plaintiff has inter alia stated that he wants to construct a new building on the suit land for occupation by his second son and to allot it to him on partition of his estate. He has further stated that he wants to make that arrangement during his life time in order to avoid any possible dispute between his two sons after his death. He has also stated that he reasonably and bona fide requires the suit land for construction of a residential building and that for doing so he has obtained the permission of the Nagar Panchayat. TEXT OF JUDGMENT (August 14, 1974) 1975 (TLS)207251 1975-GLR-0-1005 THAKKAR ISHWARLAL HARGOVANDAS Vs. He has also stated that he reasonably and bona fide requires the suit land for construction of a residential building and that for doing so he has obtained the permission of the Nagar Panchayat. TEXT OF JUDGMENT (August 14, 1974) 1975 (TLS)207251 1975-GLR-0-1005 THAKKAR ISHWARLAL HARGOVANDAS Vs. PANCHAL GIRDHARLAL RAICHAND S. H. SHETH, J. ( 1 ) THE plaintiff filed the present suit against the defendant for recovering possession of an open plot of land on the ground that he reasonably and bona fide required it for erecting a new structure for occupation by his son. The suit premises are an open plot of land admeasuring 1400 square feet and are situate at Deesa. They were let out to the defendant on July 1 1958 at a monthly rent of Rs. 3. 00. The defendant has been running there a coal depot. The defendant by his written statement contended that the statutory notice served upon him by the plaintiff was invalid because he was an yearly tenant of the plaintiff in respect of the suit land that the plaintiff had waived that notice by acceptance of rent and that therefore he could not maintain the suit. On merits he contended that the plaintiff has got a permanent accommodation elsewhere and that therefore he does not reasonably and bona fide require the suit land for any purpose. The learned trial Judge upheld the plaintiffs case on merits but held that by acceptance of rent the plaintiff had waived the statutory notice and the cause of action which accrued to him thereunder. He therefore dismissed the suit. ( 2 ) THE plaintiff appealed to the District Court against the decree passed by the learned trial Judge. The learned District Judge held that the cause of action which accrued to the plaintiff was not waived by him by acceptance of rent from the defendant. He confirmed the other finding recorded by the learned trial Judge. He therefore allowed the apple reversed the decree passed by the learned trial Judge and passed in favour of the plaintiff decree for possession. ( 3 ) IT is that appellate decree which is challenged by the defendant in this Civil Revision Application. ( 4 ) MR. Majmudar appearing for the defendant has firstly contended before me that the statutory notice served by the plaintiff upon the defendant was invalid because the defendant was an yearly tenant. ( 3 ) IT is that appellate decree which is challenged by the defendant in this Civil Revision Application. ( 4 ) MR. Majmudar appearing for the defendant has firstly contended before me that the statutory notice served by the plaintiff upon the defendant was invalid because the defendant was an yearly tenant. No rent note has been produced in this case. It appears that the suit land was let out to the defendant by the plaintiff under an oral transaction. All that the defendant has relied upon is that the plaintiff used to collect from him rent every year and not every month. The evidence shows that the suit land had been let out to the defendant at a monthly rent of Rs. 3/for a business purpose. It is quite clear from the evidence that payability of rent by the defendant to the plaintiff in respect of the suit land was from month to month though the plaintiff might have collected rent not every month but at the end of a year. Payability of rent is different from the actual mode adopted for its collection. If the payability of rent is from month to month and if the plaintiff collects rent at the and of every year it does not convert a monthly tenancy into an yearly tenancy. In my opinion therefore the finding recorded by the court below on this-aspect of the case is correct and must be upheld. Otherwise and the finding recorded on this aspect is a finding of fact with Shall cannot interfere in this Civil Revision Application. The first contention raised by Mr. Majmudar therefore fails and is rejected. ( 5 ) THE second contention which Mr. Majmudar has raised before me is that the right which accrued to the plaintiff under the statutory notice served by him upon the defendant was waived by him by acceptance of rent from the defendant. The facts of the case show that the plaintiff served upon the defendant statutory notice by which he determined his tenancy and also called upon him to pay the arrears of rent specified therein. It was a composite notice to quit and notice of demand of arrears of rent. In response to the statutory demand of rent made by the plaintiff upon the defendant the defendant remitted to the plaintiff the arrears of rent which the plaintiff accepted. It was a composite notice to quit and notice of demand of arrears of rent. In response to the statutory demand of rent made by the plaintiff upon the defendant the defendant remitted to the plaintiff the arrears of rent which the plaintiff accepted. It cannot be said therefore that if the defendant complied with the demand made by the plaintiff on him in respect of arrears of rent and if the plaintiff accepted rent remitted by the defendant in such compliance the plaintiff waived his right to sue which accrued to him under the statutory notice served by him upon the defendant. In my opinion therefore the learned appellate Judge was justified in recording the conclusion that the plaintiff had not waived either the statutory notice or the right to sue which secured to him under that statutory notice. The second contention raised by Mr. Majmudar is therefore without any substance and must be rejected. ( 6 ) THE question which Mr. Majmudar has raised before me is that the present case fell under sec. 13 (1) (g) and that it ought to have been tried on that basis. Mr. Desai has argued before me that the present suit fell under sec. 13 (1) (i) and that it ought to have been decided on that basis. In order to decide whether the present case falls under sec. 13 (1) (g) or sec. 13 (1) (i) it is necessary to have a look at the pleadings. In paragraph 2 of his plaint the plaintiff has inter alia stated that he wants to construct a new building on the suit land for occupation by his second son and to allot it to him on partition of his estate. He has further stated that he wants to make that arrangement during his life time in order to avoid any possible dispute between his two sons after his death. He has also stated that he reasonably and bona fide requires the suit land for construction of a residential building and that for doing so he has obtained the permission of the Nagar Panchayat. ( 7 ) SEE. 13 (1) (i) applies to open lands. See. 13 (1) (g) not only applies to open lands but applies to all other premises. ( 7 ) SEE. 13 (1) (i) applies to open lands. See. 13 (1) (g) not only applies to open lands but applies to all other premises. Therefore if no open piece of land Is reasonably and bona fide required by a landlord the be may fall either under clause (g) of sub-see. (1) of see. 13 or under clause (i) of sub-see. (1) of sec. 13. However clause (g) requires a further ingredient to be satisfied. That further ingredient Is that the landlord requires it for his occupation. Clause (i) also specific a further ingredient to be satisfied. It is different from one pre scribed by clause (g ). Under clause (i) the open land must be required for erection of a new building. It is therefore quite clear that if a land lord requires his open land reasonably and bona fide for his occupation his ease will be governed by see. 13 (1) (g) but if he requires It for erection of a new building his ease will be governed by sec. 13 (1) (i ). Now what happens if a landlord states that he wants possession of his land for constructing a new building for his own occupation or for the occupation by the members of his family to such an averment ex facie satisfies the ingredients of both the clauses. ( 8 ) IN my opinion there a landlord seeks possession of his land for constructing a building for his own occupation or for occupation by the members of his family his case will be governed by clause (8) because in such a ease the aeration of a new building is purely incidental to his occupation of the land. It is merely a mode of occupying the land. The Court is not concerned with how he occupies his land. He may occupy it as it is or he may erect a structure and occupy it. His occupation of his land after having constructed thereon a structure constitutes his basic need. In other words in such a ease his need to occupy the land after erecting a structure thereon is principal purpose and the erection of a structure is purely incidental and therefore it is a mere mode of occupation. His occupation of his land after having constructed thereon a structure constitutes his basic need. In other words in such a ease his need to occupy the land after erecting a structure thereon is principal purpose and the erection of a structure is purely incidental and therefore it is a mere mode of occupation. If a landlord states that he wants possession of his open land only for erecting a new structure without stating anything more his case may fall under clause (i ). Indeed the fate of his case will ultimately depend upon what turns out in evidence. He may be silent in his plaint in regard his own occupation but if it turns out in evidence that he wants to occupy it after constructing a structure thereon he cannot be allowed to resort to clause (i) as a subterfuge to cloak his requirement under clause (g ). ( 9 ) THE view which I am expressing finds support from the decision of J. B. Sheth J. In Python Bajitkhan Kayamkhan and Another v. Shah Maneklal Harilal and others 12 G. L. R. 421. Mr. Majmudar has also invited my attention to the decision of the Supreme Court in Ramniklal Pitambardas Metha v. Indradaman Amratlal Sheth 5 G. L. R. 798. It was not a case where possession of an open piece of land was sought. In that case the landlord wanted to recover possession of his building for demolishing it and occupying it after reconstructing it. In that context the Supreme Court considered the question whether the case was governed by clause (g) or clause (hh) of sub-sec. (1) of sec. 13. The answer given by the Supreme Court is that provisions of clause (hh) cannot possibly apply to a case where a landlord reasonably and bona fide requires the premises for his occupation even if he wants to demolish them and to occupy a new building after erecting it. The Supreme Court has further observed that the provisions of clause (hh) apply to a case where the landlord does not require the premises for his occupation but requires them for the erection of a new building for being let out to tenants. The principle laid down by the Supreme Court in that decision lends support to the view which I am taking. [ Rest of the Judgment not material for the Reports. ]application allowed:- Suit remanded. .