JUDGMENT H.N. Kapoor, J.:- This is a plaintiff's revision against the decree and judgment dated 6-9-1974 of the Judge Small Causes Court. (First Addl. District Judge), Muzaffarnagar in J.S.C. Suit no. 124 of 1970 dismissing the plaintiff's suit for ejectment but decreeing it for recovery of arrears of rent for the period 1-7-1967 to 31-7-1970 with proportionate costs. An amount of Rs. 1,000/- too had been claimed on account of different taxes and for recovery of damages for use and occupation and the same was dismissed. 2. The plaintiff brought the suit on the allegations that she was the owner of the shop no. 120 in the city of Muzaffarnagar and the defendant was her tenant at Rs. 80/- per month. The defendant was in arrears of rent amounting to Rs. 938/- from 1-7-1967 till 22-6-1968. An amount of Rs. 2,020/- had became due from 23-6-1968 till 31-7-1970, that is, the date of filing of the suit for use and occupation, an amount of Rs. 300/- on account of house tax and a further amount of Rs. 400/- on account of water tax, that is, a total of Rs. 1,000/- had become due on account of taxes. The suit was brought on the basis of the notice dated 21-5-1968 (Ext. 4). The plaintiff had claimed that the house in dispute was constructed after 1960. 3. The defendant resisted the suit on several grounds. One of the grounds was that the shop in dispute was constructed prior to 1951 and the U. P. Temporary Control of Rent and Eviction Act was applicable and the suit was barred under section 3 of that Act. Another plea taken was that the defendant had not committed any default and the entire rent due till 31st of August, 1968 had been paid in pursuance of the notice (Ext. 4). It was also pleaded that the defendant was not liable to pay bhumi-bhawan kar, water tax or house-tax lastly it was pleaded that the notice dated 21-5-1968 to quit had been waived by accepting the rent which had fallen due subsequently till 31-8-1968. On the pleadings of the parties the following issues were framed : 1. Whether the shop in suit was constructed before 1951. If so, its effect ? 2. Was the suit barred by section 3 of the U. P. Temporary Control of Rent and Eviction Act ? 3. On the pleadings of the parties the following issues were framed : 1. Whether the shop in suit was constructed before 1951. If so, its effect ? 2. Was the suit barred by section 3 of the U. P. Temporary Control of Rent and Eviction Act ? 3. Whether the defendant committed default in payment of rent after the notice of demand ? 4. Whether the tenancy of the defendant stands validly terminated ? 5. Whether the suit is not maintainable for being in respect of part accommodation under tenancy ? 6. Whether the notice to quit has been waived. If so, its effect ? 7. Whether the amount claimed as arrears of rent is due ? 8. Whether the defendant is liable to pay water tax and house tax. If so, what amount ? 9. What amount, if any, is due to the plaintiff from the defendant towards bhumi-bhawan kar ? 10. To what relief, if any, is the plaintiff entitled ? 4. Under issue no. 3 it was held that the shop was constructed after 1951 and there was no reason to doubt the statement of Prem Singh, plaintiff's son that it was constructed in 1960. On issue no. 2, it was held that the suit was maintainable as the defendant was in default in payment of arrears of rent even if section 3 was applicable. Under issue no. 3 it was again held that the defendant committed default in payment of arrears of a rent for more than three months. Under issue no. 4 it was held that the tenancy was validly terminated by means of notice dated 21-5-1968. Issue no. 5 was also decided in favour of the plaintiff. Under issues nos. 7 and 10 the claim of the plaintiff was accepted that arrears of rent of Rs. 938/- from 1-7-1967 to 22-6-1968 were due to her. She was further entitled to damages for use and occupation from 23-6-1968 till 31-7-1970. Adjustment of Rs 400/- was allowed on account of rent sent to her by means of draft dated 24-9-1969 and as the amount of rent to be recoverable till 31-7-1970 was held to be Rs. 2558/- for which the suit was decreed. Under issues nos. 8 and 9 it was, however, held that the defendant was not liable to pay water tax, house tax and bhumi-bhawan kar. 2558/- for which the suit was decreed. Under issues nos. 8 and 9 it was, however, held that the defendant was not liable to pay water tax, house tax and bhumi-bhawan kar. The plaintiff was not aggrieved by all these findings. The defendant did not file any revision against these findings. 5. The only issue by which the plaintiff was aggrieved and was decided against her is issue no. 6 under which it was held that the notice dated 21-5-1968 had been waived as she had accepted the sum of Rs. 460/- sent to her by the defendant with specific instructions for its being appropriated towards the rent for five months (from 1-4-1968 to 31st of August, 1968). This is, therefore, the only point which arises for decision in this case. 6. There can be no doubt that there was a strong controversy between the parties on the point whether the rent had already been paid upto 31-3-1968 by means of the draft for Rs. 1155.30 which had been sent by the defendant along with his letter dated 10-4-1968 or rent till 30-1-1967 only had been paid by means of that draft. After receiving that draft for Rs. 1 155.30, it has been fully clarified by the plaintiff in her notice dated 21-5-1968 (Ext. 4) that this amount sent by the defendant was appropriated towards the arrears of revs which had accrued after 31-1-1965, and that the defendant had sent the letter with wrong and incorrect facts that by means of this draft he was paying the whole dues till 31-3-1968. It will now appear that even the trial court has found this contention of the plaintiff to be correct and it has held that the amount of Rs. 1155.30 sent by means of the draft along with the letter dated 10-4-1968 (Ext. A-9) was sent in discharge of the dues till 30.6-1961 only. The plaintiff, therefore, demanded further dues according to her calculation and also terminated the tenancy by means of notice dated 21-5-1-68. The defendant sent another draft for Rs. 460/- along with his letter dated 24-9-1969 (Ext. A-6) mentioning that rent had already been paid till 31-3-1968 and that five months rent from 1-4-1968 to 31-8-1968 was being sent by means of this draft for both the shops. He demanded receipt for this amount. The plaintiff cashed this amount and then brought the suit. 460/- along with his letter dated 24-9-1969 (Ext. A-6) mentioning that rent had already been paid till 31-3-1968 and that five months rent from 1-4-1968 to 31-8-1968 was being sent by means of this draft for both the shops. He demanded receipt for this amount. The plaintiff cashed this amount and then brought the suit. The lower court held that the amount would be deemed to have been appropriated towards the rent which had become due after 2-6-1968 and as such the notice served was waived under section 113 of the Transfer of Property Act (Illustration 'a'). 7. Sri Rajeshwari Prashad learned counsel for the applicant has argued that he lower court has ignored the circumstances under which this amount was sent and as such had wrongly drawn an inference under section 113 of the said Act that the notice to terminate the tenancy was waived when it cannot to said that there was any intention on the part of the plaintiff to treat the lease as subsisting. According to him, the lower court has acted arbitrarily in taking this view and wrongly refused to grant the relief for ejectment specially when it had found that the amount remitted was not sufficient to cover the arrears of rent prior to the notice to quit. In support of this contention he has placed reliance on the case of Salesh Brothers v. K. Rajendran and another, AIR 1970 Madras 165 in which it was held as follows : "Section 113 consists of two limbs (a) express or implied consent of the person to whom notice is given and (b) "the act of the person giving the notice showing the intention to treat the lease as subsisting." In order to constitute a waiver, both the limbs must concurrently operate, which means, that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver. The principle underlying section 116 of the Act will also apply in applying section 113 as this is also a case of continuance of the lease restoring the old tenancy. 8. The preponderance of the weight of authority is that in addition to the receipt of rent by the landlord there should be proof that the receipt was with the intention to treat the lease as subsisting. 8. The preponderance of the weight of authority is that in addition to the receipt of rent by the landlord there should be proof that the receipt was with the intention to treat the lease as subsisting. According to the decisions, there should be either an express contract or conduct of the parties justifying the inference that, after the determination of the contractual tenancy, the landlord's intention was that the occupation of the premises was as a tenant. Whether the conduct of the party justified such an inference would undoubtedly turn upon the facts and circumstances of each case." He has also placed reliance on the case of Mademsetiy Saiyanarayana v. G. Yelloji Rao and others, AIR 1965 Supreme Court 1405 para 11, in which the definition of 'Waiver' generally was given in the following words : "We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual, and may constitute a cause of action it is an agreement to release or not to assert a right" see Dawson's Bank Ltd v. Nippon Mankwa Kabnshiki Kaisha, AIR 1935 PC 79 . He has, therefore, argued that for arriving at the conclusion that the landlord had waived the notice, all the surrounding circumstances will have to be taken into consideration. 9. On the other hand, Sri G.P. Bhargava, learned counsel for the opposite party has argued that all that is necessary for purposes of section 113 is whether the rent was accepted after the period of notice as contemplated in Illustration as. He has also argued that under section 59 of the Contract Act, the landlord had no option but to appropriate the amount of Rs. 460/- toward five months' rent as indicated in his letter dated 24-9-1969. He has also invited my attention to paragraph 30 of the Madras decision reported in AIR 1970 Madras 165 whereas the learned Judge has dissented from the view taken by Asthana, J. (as he then was) in the case of Ram Dayal v. Jwala Prashad, AIR 1966 Allahabad 623. The Madras High Court had, no doubt, disagreed with the view that the mere fact of receiving rent during the pendency of the suit for ejectment was sufficient to constitute waiver. The Madras High Court had, no doubt, disagreed with the view that the mere fact of receiving rent during the pendency of the suit for ejectment was sufficient to constitute waiver. Another learned single Judge of this Court in the case of Permanand v L. Murari Lal, 1996 A.L.J. 1074 had held that when the rent was accepted during the pendency of the suit after expressly stating that it was accepted without prejudice to the suit, that would not amount to waiver. Both these decisions came up for consideration by a Division Bench of this Court in the case of Hari Shankar v Chaitanya Kumar, 1968 A.L.J. 387 the learned Judges cited certain observations made by the Supreme Court in the case of Ganga Dutt Murarka v. Kartik Chandra Das, (1961) 3 S.C.C. 813 which were in respect of section 113 of the Transfer of Property Act and had, observed as follows : "We think that these observations should equally apply to a. case under section 113. In a case governed by the Act there should be something more than the mere acceptance of rent in order to enable the Court to hold that the acceptance of rent amounts to the waiver of notice to quit. That something more is lacking on the record of this case. Accordingly we would hold that Taj Singh has failed to prove that there was waiver of the notice to quit by the plaintiff." Sri Bhargava has argued that these observations were made because in that case Rent Control Act was applicable and rent had to be paid under the statute by, the tenant. Sri Bhargava has placed reliance on the case of Om Prakash Saxena v Raja Babu Saxena, 1975 R.C.J. (S.N. 17) in which Banerji. J. had distinguished this Division Bench case on the ground that it pertained to a matter which was governed by the Rent Control and Eviction Act and in which case the tenant had become a statutory tenant and the amount had to be paid. 10. I have given my careful consideration to these arguments of learned, counsel for both the parties. In all these cases, there was no dispute with regard to the fact that the rent paid was for months subsequent to the giving of the notice. In no case there was a controversy with regard to the past arrears. 10. I have given my careful consideration to these arguments of learned, counsel for both the parties. In all these cases, there was no dispute with regard to the fact that the rent paid was for months subsequent to the giving of the notice. In no case there was a controversy with regard to the past arrears. No case has been cited before me in which it might have been held that the, tenant would be deemed to have waived notice when throughout he had been insisting that past arrears had to be paid. In the present case all that can said be is that by invoking section 59 of the Contract Act, the amount of Rs. 400/ could be adjusted towards the rent for the period from April 1, 1968. But this could certainly not mean that there was intention on the part of the plaintiff to treat the lease as subsisting. The other limb of section 113 was thus missing. It would have been a different matter if the entire past arrears, as claimed by the plaintiff in her notice dated 21-5-1968 and the additional rent for the months of July and August, 1968, had been remitted by the defendant and the same had been accepted by the plaintiff. Here the plaintiff was throughout insisting that there were past arrears after 31-1-1965 and the amount of Rs. 1150.30 rent to her on the earlier occasion could be utilised towards the rent of some months only which had fallen due after 31-1-1965 which meant upto 30-6-1967, while the defendant insisted that by sending the sum of Rs. 1155.30 he had cleared the arrears till March, 1968 and the further amount of Rs. 460/- had to be adjusted towards the rent from 1-4-1968 till 31-8-1968. As already stated above, the trial court has found that the contention of the plaintiff, as stated by her in her notice dated 21-5-1968 (Ext. 4) was correct. Under these circumstances I do not think that it is possible to draw an inference that the plaintiff intended to treat the lease as subsisting. In my opinion, Illustration 'a' to section 113 Transfer of Property Act states only certain circumstances under which it is possible to draw an inference that the landlord had intended to treat the lease as subsisting. In my opinion, Illustration 'a' to section 113 Transfer of Property Act states only certain circumstances under which it is possible to draw an inference that the landlord had intended to treat the lease as subsisting. That inference certainly cannot be down under the circumstances of the present case in view of the definite finding of the trial court that the stand taken by the defendant was wrong throughout. The lower revisional court, in my opinion, has taken as erroneous view of law on this point and has thus wrongly refused to grant a decree for rejectment.) 11. Learned counsel for the opposite party next argued that the lower court had jurisdiction to decide rightly as well as wrongly and this Court would not be justified in interfering in revision with an erroneous finding of the lower court on fact. In the present case, the lower revisional court has arrived at this finding after ignoring the surrounding circumstances under which the arrears were demanded and then the amount of Rs. 460/- was sent. It has misinterpreted section 113 Transfer of Property Act and Illustration 'a'. It has not considered that what was material was the intention on the part of the plaintiff to treat the lease as subsisting, and that had to be proved as a fact either by direct evidence or by such evidence which may justify drawing an inference that the plaintiff intended to treat the lease as subsisting. It thus committed an obvious error of law. It has to be borne in mind that this revision is under section 25 of the Provincial Small Causes Court Act and this Court can interfere in revision if an erroneous view of law has taken place. 12. In result the revision is allowed. The decree and judgment of the trial court are modified to the extent that the suit for ejectment is also decreed. It is further ordered that the decretal amount of Rs. 2,558/- will include arrears of rent amounting to Rs. 938/- from 1-7-1967 till the date of termination of the tenancy and the remaining amount would be as damages for use and occupation for the subsequent period. Under the circumstances of this case, both the parties shall bear their own costs. Since the ejectment is from a shop, six weeks time is allowed to the opposite party to vacate the same.