JUDGMENT K.M. Dayal, J. -The present Second Appeal has been filed by the landlord against the dismissal of his suit against the judgment of the lower appellate court. The landlord filed a suit against the defendant-respondent on the ground that he was a tenant of the disputed accommodation at the rent of Rs. 31/- per month, the defendant failed to pay the arrears of rent in spite of notice of demand and ejectment was served on him and, therefore, he was liable to ejectment under Section 3 (1) (a) of the U. P. Act No. III of 1947. 2. The defence was that he had deposited the amount of Rs. 1453.90 in a proceeding under Section 7-C as the landlord refused to accept the rent sent to him by Money Order. It was further claimed that the defendant had given three notices during three years to the landlord for annual white washing and repairs on 22nd November 1966, 9-12-1967 and 5-10-1967 but as the landlord failed to carry out the annual white washing and repairs, he got the same done and deducted one months rent for the same for every year. The court below has held that the defendant was entitled to deduct one months rent for every year for annual white washing and the deposits made by him under Section 7-C were valid. It was found that after deducting the deposit made under Section 7-C, there was a shortage of only Rupees 34.10. This figure was arrived at after permitting the deduction of Rs. 93/- as rent for 3 months for the period of 3 years under Section 7-E of U. P. (Temp) Control of Rent and Eviction Act. 3. Learned counsel for the appellant has argued that the defendant-respondent was not entitled to deduct the rent of one month for every year under Section 7-E. He alleged that it was only for the purpose of getting the accommodation wind-proof and water-proof that one months rent could be deducted but for other repairs it could not be deducted unless the landlord was bound to make such other repairing in law, custom or contract. He further argued that under sub-section (2) of Section 7-E mentioned in sub-section (1), repair includes annual white washing, recolouring and periodical repairs. He further argued that under sub-section (2) of Section 7-E mentioned in sub-section (1), repair includes annual white washing, recolouring and periodical repairs. He further argued that it was only the repairs relating to the accommodation for getting wind and water proof that the landlord was bound to do and for other repairs he was not bound to do unless there was any law, contract or custom provided for the same. In the instant case I find that the notices that have [been given by the tenant to the landlord were for annual white washing. Only one notice dated 22nd November 1966 alleged that the bath room was leaking. In the circumstances that was a notice which complied with the provisions of Section 7-E (1) and the tenant was entitled to deduct one months rent for necessary repairs. As far as the other two notices mentioned above are concerned, they are actually for annual white washing and Barsati Marammat but it is not clear what is meant by Barsati Marammat. It has not been proved that this Marammat was for getting the accommodation wind-proof or water-proof. Under subsection (3) of Section 7-E, the learned counsel for the respondent argued that the respondent was entitled to carry out the annual white washing, recolouring and periodical repairs after deducting one months rent or every year on the failure of the landlord to do the same. Looking to the wordings of sub-sec. (1) of S. 7-E, I do not agree with the same. Sub-section (1) of Section 7-E refers to the duty of the landlord get the accommodation in occupation of a tenant wind-proof and waterproof. In the latter portion of this sub-section it is mentioned that it is the duty of the landlord to carry out the other repairs which he was bound to make by law, contract or custom. In the instant case there is no plea about any contract or custom under which the landlord was bound to do the annual white washing, recolouring etc. The contract or custom has not been pleaded and no law has been relied upon except Section 7-E. Sub-section (3) of Section 7-E refers to annual white washing, recolouring and periodical repairs which are mentioned in sub-section (2) and which refers to other repairs in sub-section (1) of the said section. The contract or custom has not been pleaded and no law has been relied upon except Section 7-E. Sub-section (3) of Section 7-E refers to annual white washing, recolouring and periodical repairs which are mentioned in sub-section (2) and which refers to other repairs in sub-section (1) of the said section. Consequently the landlord was not bound to carry out the annual white washing under law. 4. The court below has held that the notices given by the defendant for annual repair and white washing were not replied by the landlord. Consequently it inferred that it was the duty of the landlord to get the annual white washing done. This reasoning is completely devoid of force. The court below seems to have ignored the evidence led by the parties on that question. The defendant, on whom the burden was to prove such contract or custom, did not plead about the same in the written statement. In his statement he did not say a word that the landlord was bound to carry out the white washing and annual repairs under any contract or custom. On the other hand the landlord has deposed that there was no contract with the present defendant to carry out any repairs or white washing. On the other hand with the previous tenant there was a specific contract that the tenant was to carry out the annual repairs at his own expense. In the circumstances the finding of the court below is merely a conjecture, neither based on pleadings nor evidence on record. 5. In the result the two deductions made by the defendant-respondent in the years 1967 and 1968 were invalid. Consequently the rent for those two months as well amounting to Rs. 62/-and Rs. 34.10 as found by the court below total Rs. 96.10 was due on the date of notice issued to defendant-respondent. Learned counsel for the respondent argued that Rs. 96.10 was only three months rent and not 4 months rent. He relied on a Division Bench case: Jitendra Prasad v. Mathura Prasad Darzi (1960 All LJ 211). That Division Bench case is not helpful to the defendant. In that case what was held was that if a tenant is in arrears of rent for more than three months and failed to pay the same. He relied on a Division Bench case: Jitendra Prasad v. Mathura Prasad Darzi (1960 All LJ 211). That Division Bench case is not helpful to the defendant. In that case what was held was that if a tenant is in arrears of rent for more than three months and failed to pay the same. i.e. the arrears of rent for more than three months which had become due and for which notice had been given, then the right of suit accrues to the landlord. The right of suit would not accrue unless the arrears of rent of more than three months became due. It was also held that if during the period of one month after the receipt of the notice the same arrears of rent i.e. the rent which had been demanded by the notice, are not paid then after expiry of the period of one month from the notice he could file the suit. In the instant case more than 3 months rent was due on the defendant-respondent. The aforesaid case relied on by the learned counsel for the respondent could apply where full one months rent was due and rot a portion of any other months rent was in arrears. 6. Lastly the learned counsel for the appellant challenged the validity of notice. In the instant case the notice was a composite notice of demand under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act and Section 106 of the T. P. Act. The learned counsel contended that the notice terminated the tenancy unconditionally without affording any opportunity to the tenant to pay the arrears and save his tenancy. He cited a single Judge decision in Ram Krishna Prasad v. Mohammad Yahiya reported in (1960 All LJ 579). He relied on the following observations: "Whatever may be the language of the notice demanding arrears of rent, it must give the tenant an opportunity to save his tenancy from the consequences of default by paying the rent. If the notice unconditionally terminate the tenancy and asks the tenant to vacate the accommodation irrespective of whether he pays the arrears or not, it is not a notice of demand as required by Section 3 (1) (a)." It is unfortunate that the learned counsel cited an overruled case. If the notice unconditionally terminate the tenancy and asks the tenant to vacate the accommodation irrespective of whether he pays the arrears or not, it is not a notice of demand as required by Section 3 (1) (a)." It is unfortunate that the learned counsel cited an overruled case. The aforesaid case of Ram Krishna Prasad has been expressly overruled by a Division Bench of our Court in Jagat Narain Mehra v. Madan Lal reported in (1961 All LJ 442). Thus the objection of the appellant regarding validity of notice has no substance and is rejected. 7. In the result, the appeal is allowed, the judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. Parties are directed to bear their own costs. The disputed accommodation is situated at Bareilly. The defendant obviously will find difficulty in arranging for another accommodation and the learned counsel for the defendant prays for some time to vacate the accommodation. I hereby grant four months time to the defendant-respondent to vacate the disputed accommodation provided he deposits the entire arrear of the rent and other dues in the court below within a period of one month from today. Any deposits made under Section 7-C will also be given credit by court below. It is further directed that in case the amount is not deposited as ordered above, the decree will become executable on expiry of one months time from today. The defendant is directed to vacate and deliver the vacant possession to the landlord within four months granted to him.