Amar Nath Agarwal v. District Judge Allahabad — 1983 DIGILAW 143 (ALL)

ORDER N.D. Ojha, J. - One Kedar Nath Agarwal had several sons including Amar Nath Agarwal, the petitioner in this writ petition, and Shambhu Nath Agarwal, father of Jagdish Narain Agarwal, respondent No. 3. It appears that Kedar Nath Agarwal was the exclusive owner of house No. 103 K. P. Kakkar Road, Allahabad, along with other properties. During his lifetime he had let out a shop forming part of house No. 103 K. P. Kakkar Road, Allahabad, to respondent 3 on a monthly rent of Rs. 50/- . Kedar Nath Agarwal died leaving a registered will whereby he bequeathed house No. 103 K. P. Kakkar Road, Allahabad, exclusively to the petitioner. House No. 24 Mahajani Tola, Allahabad, on the other hand was bequethed by him to Shambhu Nath Agarwal, father of respondent No. 3. 2. The petitioner instituted suit No. 2 of 1972 in the court of the Civil Judge, Allahabad, for ejectment of respondent 3 from the shop in his tenancy (hereinafter referred to as the shop in question) on the ground that he was in arrears of rent since Jan. 11, 1965 to Mar. 31, 1966, that notwithstanding a notice of demand having been served on him he did not pay the arrears of rent and consequently he was a defaulter in the payment of rent liable to be evicted from the shop in question. The suit was contested by respondent 3 inter alia on the ground that he had paid the rent for the months of Nov. and Dec. 1965, and Jan., 1966, to Kedar Nath Agarwal before his death on Jan. 29, 1966. He further pleaded, as is apparent from his written statement a copy whereof has been filed as Annexure 2 to a supplementary affidavit filed on April 8, 1980, in the present writ petition that after the death of Kedar Nath Agarwal he became the tenant of all the sons of late Kedar Nath Agarwal and since after the death of his father on May 20, 1968, he is in occupation of the shop in question as a coparcener and co-owner and the tenancy merged in ownership. In para 12 of the written statement it was specifically asserted that since the petitioner was in occupation as owner and not as tenant after May 20, 1968, question of termination of his tenancy did not arise. 3. In para 12 of the written statement it was specifically asserted that since the petitioner was in occupation as owner and not as tenant after May 20, 1968, question of termination of his tenancy did not arise. 3. The pleas raised by respondent 3 in his defence did not find favour with the Civil Judge and suit No. 2 of 1972 fried by the petitioner for ejectment of respondent 2 from the shop in question as well as for recovery of arrears of rent etc. was decreed. Against that decree respondent 3 filed an appeal before the District Judge being Civil Appeal No. 9 of 1973. A copy of the memorandum of appeal has been filed as Annexure 3 to the supplementary affidavit aforesaid. Its perusal indicates that the pleas raised by respondent 3 in his written statement were reiterated. The appeal was transferred to the IInd Additional District Judge, Allahabad, who allowed it in part and reversed the decree of the Civil Judge in so far as it had directed ejectment of respondent 3 from the shop in question. The claim of respondent 3 that the petitioner was not the exclusive owner of the shop in question consequent upon the death of Kedar Nath Agarwal and that he was also one of the co-owners of the shop in question after the death of his father Shambhu Nath Agarwal was repelled both by the Civil Judge and the Additional District Judge. It was held that Kedar Nath Agarwal was the exclusive owner of house No. 103 K. P. Kakkar Road, Allahabad, and on the basis of the will executed by him the petitioner became its exclusive owner. 4. Appeal No. 9 of 1973 was decided by the 2nd Additional District Judge on May 1, 1974. The petitioner thereafter served respondent 3 with a notice dated Dec. 16, 1974, asserting that in view of his denial of the sole ownership of the petitioner of the shop in question in suit No. 2 of 1972 the tenancy was being forfeited and terminated and respondent 3 was required to vacate the shop in question after the expiry of 30 days of the receipt of the notice. It was also asserted in the said notice that respondent 3 was in arrears of rent amounting to Rs. 1750/- for the period between Jan. 1, 1972, and Nov. 30, 1974. It was also asserted in the said notice that respondent 3 was in arrears of rent amounting to Rs. 1750/- for the period between Jan. 1, 1972, and Nov. 30, 1974. Respondent 3 was required to pay the arrears of rent also. It appears that on the receipt of the said notice respondent 3 sent to the petitioner a bank draft of a sum of Rs. 1272/- representing arrears of rent aforesaid as also rent for the month of Dec. 1974, after deducting a sum of Rs. 528/- said to have been deposited by him towards taxes, namely house tax and water tax of house No 103 K.P. Kakkar. Road Allahabad, for the years 1971-72 and 1972-73 at the rate of Rs. 264/- per year. 5. The petitioner thereupon instituted suit No. 758 of 1975 in the court of Judge, Small Causes, for ejectment of the petitioner from the shop in question as also for recovery of arrears of rent etc. on two grounds contemplated by cls. (a) and (f) of sub-sec. (2) of S. 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act.) Sub-sec. (2) of S. 20 of the Act inter alia provides that "a suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely". Cl. (a) of sub-sec. (2) inter alia provides "that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:". Cl. (f) of sub-sec. (2) on the other hand provides "that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry or condoned the conduct of the tenant :". 6. The suit was contested by the petitioner and was decreed by the Judge, Small Causes, on May 16, 1978, for recovery of an amount of Rs. 928/- as arrears of rent but was dismissed in regard to the relief of eviction of respondent 3 from the shop in question. The case of the petitioner in regard to cl. 6. The suit was contested by the petitioner and was decreed by the Judge, Small Causes, on May 16, 1978, for recovery of an amount of Rs. 928/- as arrears of rent but was dismissed in regard to the relief of eviction of respondent 3 from the shop in question. The case of the petitioner in regard to cl. (a) of S. 20 (2) of the Act was that since respondent No. 3 had not paid the entire amount of arrears of rent claimed by the notice of demand and had deducted a sum of Rs. 528/- said to have been paid towards taxes he was liable to be evicted notwithstanding the payment of Rs. 1272/- by a bank draft. In regard to the payment of taxes the case of the petitioner, as is apparent from para 13 of the plaint of suit No. 758 of 1975, a copy whereof has been filed as Annexure 8 to the supplementary affidavit aforesaid, was that the petitioner and his brother Kailash Nath Agarwal were in occupation of the major portion of house No. 24 Mahajani Tola, Allahabad (the house which had been bequeasthed by late Kedar Nath Agarwal to the father of respondent 3) and had been paying the municipal taxes for the said house, and respondent 3 being in occupation of the major portion of house No. 103 K. P. Kakkar Road, Allahabad, had been paying the municipal taxes for the same in pursuance of a mutual and reciprocal agreement arrived at between them in lieu of the permissive occupation of each others premises and consequently the question of adjustment of Rs. 528/- alleged to have been paid by respondent 3 towards a municipal taxes for the entire house No. 103 K. P. Kakkar Road, Allahabad, in the arrears of rent due in respect of the shop in question which respondent 3 was occupying not as a licensee but as a tenant did not arise. 7. It appears that apart from occupying the shop in question as tenant respondent 3 has been occupying the accommodation in the second, third and fourth floors of house No. 103 K. P. Kakkar Road, Allahabad, for residential purposes. 7. It appears that apart from occupying the shop in question as tenant respondent 3 has been occupying the accommodation in the second, third and fourth floors of house No. 103 K. P. Kakkar Road, Allahabad, for residential purposes. The case of the petitioner was that he is residing therein as his licensee whereas he in his turn along with his brother Kailash Nath Agarwal was in occupation of the major portion of house No. 24 Mahajani Tola, Allahabad (bequeathed to the father of respondent 3) for their residential purposes as licensees. 8. In regard to the plea that respondent 3 was defaulter in payment of rent within the meaning of cl. (a) of S. 20 (2) of the Act the Judge, Small Causes, has held that respondent 3 had succeeded in establishing that he had deposited Rs. 528/- as municipal taxes and consequently he was entitled to adjust the same from the rent and since he had paid the entire arrears of rent claimed under the notice of demand after adjusting Rs. 528/- aforesaid, respondent 3 was not a defaulter in payment of rent within the meaning of the said cl. (a). 9. In regard to the plea that respondent 3 was liable to be evicted under cl. (f) of S. 20 (2) of the Act inasmuch as he had denied the title of the petitioner in suit No. 2 of 1972 the Judge, Small Causes, took the view that keeping in view the nature of the plea raised by respondent 3 in suit No. 2 of 1972 it could not be said that the provisions of cl. (f) of S. 20 (2) of the Act were attracted. 10. The petitioner filed a revision before the District Judge under S. 25 of the Provincial Small Cause Courts Act against the decree aforesaid dated May, 16, 1978, passed by the Judge, Small Causes, which was rejected by the District Judge on Aug. 3, 1978, summarily. The petitioner filed Civil Revision No. 4183 of 1978 in this Court against the order of the District Judge dated Aug. 3, 1978, which was ultimately dismissed on July 23, 1979, in view of the decision of a Full Bench of this Court that no revision lay in the High Court against such an order. 3, 1978, summarily. The petitioner filed Civil Revision No. 4183 of 1978 in this Court against the order of the District Judge dated Aug. 3, 1978, which was ultimately dismissed on July 23, 1979, in view of the decision of a Full Bench of this Court that no revision lay in the High Court against such an order. Thereafter he filed the present Writ Petition with a prayer that the order dated May 16, 1978, passed by the Judge, Small Causes, and that of the District Judge, dated Aug. 3, 1978 dismissing his revision summarily, may be quashed. 11. It was urged by counsel for the petitioner that the ground contemplated by cl. (a) of S. 20 (2) of the Act as well as the ground contemplated by cl (f) thereof was made out and the Judge, Small Causes, as well as the District Judge committed a manifest error of law in taking a contrary view. 12. Having heard counsel for the parties at some length I am of opinion that the' impugned orders cannot be sustained. 13. In regard to the ground provided by cl. (a) of S. 20(2) of the Act the case of the petitioner as seen above was that respondent No. 3 was residing in the second, third and fourth storeys of house No. 103 K. P. Kakkar Road, Allahabad, as his licences whereas he and his brother Kailash Nath Agarwal were residing as licensees of respondent No. 3 in 24 Mahajani Tola. Allahabad, and in pursuance of an agreement arrived at between them the petitioner and Kailash Nath Agarwal were paying the taxes of house No. 24 Mahajani Tola whereas respondent No. 3 was paying the taxes of house No. 103 K. P. Kakkar Road. No finding has been recorded by the Judge, Small Causes, or by the District Judge in regard to this plea specifically raised by the petitioner in para 13 of the plaint. No finding has been recorded by the Judge, Small Causes, or by the District Judge in regard to this plea specifically raised by the petitioner in para 13 of the plaint. In case a finding was recorded in favour of the petitioner on this plea respondent No. 3 would apparently not be entitled to deduct the taxes paid by him in respect of house No. 103 K. P. Kakkar Road, Allahabad, from the rent of the shop in question which he was occupying as a tenant of the petitioner inasmuch as the petitioner and his brother Kailash Nath Agarwal were also paying municipal taxes of house No. 24 Mahajani Tola which had to be paid by respondent No. 3, the said house having been bequeathed by late Kedar Nath Agarwal to the father of respondent No. 3. Till the parties were residing in each others houses as licensees and paying taxes in pursuance of the mutual agreement no question of deducting the taxes so paid from the rent of the shop in question would obviously arise. The parties would be bound by the mutual agreement reached in this behalf and it is for this reason that the finding recorded by the Judge, Small Causes, on this point as affirmed by the District Judge cannot be sustained. 14. Counsel for the petitioner also urged in the alternative that since the rent of the shop in question was more than Rs. 50/- respondent No. 3 was liable to pay proportionate taxes of house No. 103 K. P. Kakkar Road, Allahabad, in view of S. 7 of the Act and to the extent of his proportionate liability to pay the taxes he would be defaulter in payment of rent inasmuch as he had deducted the entire amount of taxes paid by him as aforesaid. On the other hand it was urged by counsel for respondent No. 3 that this plea was hot specifically raised by the petitioner before the Judge, Small Causes, and had it been so raised it would have been open to respondent No. 3 to establish that he was entitled to receive from the petitioner some more amount which he had paid towards taxes of house No. 103 K. P. Kakkar Road, Allahabad, for earlier years. In this connection counsel for the petitioner submitted that any payment made by respondent No. 3 towards taxes for earlier years was not recoverable the same having been barred by time as also because no plea of set-off was raised by respondent No. 3 in this regard either in suit No. 2 of 1972 or in the present suit. Since the suit will have to be decided afresh by the Judge, Small Causes, in pursuance of this order I am not expressing any opinion on the merits of the respective submissions made by counsel for the parties in regard to this alternative plea. It would be open to the parties to make their respective submissions in this behalf before the Judge, Small Causes. 15. Coming to the other plea as to whether respondent No. 3 was liable to be evicted from the shop in question on the ground afforded by cl. (f) of S. 20(2) of the Act it may be pointed out that the said clause as seen above contemplates (1) that the tenant has renounced his character as such, (2) or denied the title of the landlord, (3) and the latter has not waived his right of re-entry, (4) or condoned the conduct of the tenant. For the petitioner it was urged that in view of the specific plea raised by respondent No. 3 in suit No. 2 of 1972 that the petitioner was not the exclusive owner of the shop in question and that on the death of his father on May 20, 1968, the occupation of respondent No. 3 was as a coparcener and co-owner and the tenancy had merged in ownership as also his plea that since he was in occupation as owner and not as a tenant after May 20, 1968, question of termination of his tenancy did not arise, it was a clear case where respondent No. 3 had renounced his character as such as also denied the title of the landlord. On the other hand it was urged by counsel for respondent No. 3 that it was a case where respondent No. 3 had made a bona fide claim in regard to the ownership of house No. 103 K. P. Kakkar Road, Allahabad, including the shop in question consequent upon the death of his grand-father and father and it was not a case where respondent No. 3 could be said to have either renounced his character as tenant - or denied the title of the petitioner. 16. Having considered the respective submissions made by counsel for the parties I am of opinion that on the facts of the instant case it was established that cl. (f) of S. 20(2) of the Act was also attracted and there were no bona fides at all on the part of respondent No. 3 in raising the plea which he did in suit No. 2 of 1972. Before adverting to the decided cases relied on by counsel for the parties I find it useful to refer at this place to the conduct of respondent No. 3 which indicates that there were no bona fides at all in taking the plea which he did in suit No. 2 of 1972. It has been emphasised by counsel for respondent No. 3 himself that respondent No. 3 never denied the title of late Kedar Nath Agarwal. According to him he has always accepted it that the shop in question was taken by him on a monthly rent of Rs. 50/- . This indicates that respondent No. 3 to start with was fully aware that house No. 103 K. P. Kakkar Road, Allahabad, exclusively belonged to late Kedar Nath Agarwal. A copy of the statement made by respondent No. 3 in support of his case in suit No. 2 of 1972 has been filed as Annexure V to the supplementary affidavit aforesaid. In his deposition he has specifically asserted that till his grand-father late Kedar Nath Agarwal was alive he always considered house No. 103 K. P. Kakkar Road, Allahabad, to be the exclusive property of his grand-father and it was the will executed by his late grand-father from which he came to know after the death of his grand-father that the aforesaid house was ancestral property. A certified copy of the judgment of the find Additional District Judge, Allahabad, dated May 1, 1974, given in Civil Appeal N. 9 of 1973 arising out of the judgment of the Civil Judge in suit No. 2 of 1972 has been filed as Annexure 4 to the supplementary affidavit aforesaid. The Additional District Judge has in this regard, with reference to the will executed by late Kedar Nath Agarwal, held that there was sufficient evidence in the will to indicate that late Kedar Nath Agarwal was the owner of the entire property that he bequeathed and the will had been validly executed. In regard to the plea raised by respondent No. 3 the Additional District Judge held : "There is practically no evidence to rebut the recitals of the will. The parties have examined only themselves. The appellant has stated that his knowledge that the property was joint Hindu family was derived only from the will itself. Thus besides the will the appellant does not have any knowledge that the property belonged to the joint Hindu family. As for the will, as has been discussed above, it fat from showing that the property was ancestral indicates that it was self acquired property of Kedar Nath." 17. When respondent No. 3 from the time that he took the shop in question on rent from late Kedar Nath Agarwal and till his death was aware that house No. 103 K. P. Kakkar Road, Allahabad, including the shop in question was the exclusive property of late Kedar Nath Agarwal and when there was nothing in the will to indicate that the said property was ancestral and on the contrary the will specifically indicated that the said house exclusively belonged to late Kedar Nath Agarwal and when as stated by respondent No. 3 in his deposition the source of his assertion that the aforesaid house was ancestral was the will itself executed by late Kedar Nath Agarwal, there is no scope for taking the view that there were any bona fides on the part of respondent No. 3 in taking the specific pleas referred to above in his written statement of suit No. 2 of 1972 and in my opinion those pleas clearly fell within the purview of the term "that the tenant has renounced his character as such or denied the title of the landlord" occurring in cl. (f) of S. 20(2) of the Act. 18. In Hashmat Husain v. Saghir Ahmad, AIR 1958 All 847 a Division Bench of this Court with reference to S. 111(g) of the Transfer of Property Act and S. 3(f) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, which contained a provision analogous to cl. (f) of S. 2012) of the Act held that the expression "setting up a title in a third person" in S. 111 (g)(2) does not mean setting up full title in a third person or asserting that the landlord had no title to the property at all. The definition of lease in S. 105 clearly shows that the terms lease', `lessor' and `lessee' go together and in connection with a particular transaction would have reference only to the particular property covered by the lease, the particular person who transfers the right to enjoy that property and the person who accepts the transfer from such a transferor. It was further held that in view of these definitions, a lessee would be said to renounce his character as such when he denies either that he holds that property as a lessee or states that he, though a lessee of that particular property, is not a lessee from the person who let it out to him. Where therefore the lessee alleges in his written statement that the person from whom he has taken the lease holds only a partial property right in the leased property and another person is also a co-sharer therein, he states, in effect that the person is not his lessor and the lease in his favour is determined by forfeiture on account of his renouncing his character as lessee of that person by setting up a title in a third person. The same view was reiterated by another Division Bench of this Court in Narain Das v. Jawahar Lal, 1982 All WC 744 : 1982 All LJ 1441 while dealing with a case under cl. (f) of S. 20(2) of the Act itself. 19. Counsel for respondent No. 3 urged that both the decisions referred to above were distinguishable inasmuch as in those cases the title of the original lessor itself was denied. (f) of S. 20(2) of the Act itself. 19. Counsel for respondent No. 3 urged that both the decisions referred to above were distinguishable inasmuch as in those cases the title of the original lessor itself was denied. According to him since in the instant case respondent No. 3 always accepted the title of late Kedar Nath Agarwal these two cases were not applicable to the facts of the instant case. In my opinion this is not the ratio decided of the two cases referred to above. Moreover, it has specifically been held by this Court in Ramdas v. Shree Ram, AIR 1953 All 797 that denial of the title of the heir of the original landlord also acts as forfeiture under S. 111(g) of the Transfer of Property Act. Chanda Devi v. Tara Pad Sinha, AIR 1980 All 270 was also a case where the rights not of the original landlord but of the purchaser from the original landlord were denied and it was construed to be a case of denial of title. 20. Counsel for respondent No. 3 placed reliance on a decision of the Bombay High Court in Rukmini v. Rayaji, AIR 1924 Bom 454. That was a case where the tenant had raised a plea that since a third person was also claiming rent with the plaintiff he was ready to pay to either whom the court found entitled to it. It was held that such a plea did not amount to disclaimer. Counsel for respondent No. 3 also placed reliance on Bela Das v. S.N. Bose, AIR 1975 SC 398 . That was a case under Sections 2(d) and 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. There also the defendant had admitted that he was the tenant under the plaintiffs but had also asserted that there were some more landlords of the premises in question. It was held that it was not a case of denial of the relationship of landlord and tenant between the parties. That is not so in the instant case. Here as seen above in para 12 of the written statement filed by him in suit No. 2 of 1972 respondent No. 3 had specifically pleaded that since he was in occupation as owner and not as tenant after May 20, 1968, question of termination of tenancy did not arise. That is not so in the instant case. Here as seen above in para 12 of the written statement filed by him in suit No. 2 of 1972 respondent No. 3 had specifically pleaded that since he was in occupation as owner and not as tenant after May 20, 1968, question of termination of tenancy did not arise. Both these cases are, therefore, distinguishable on the facts of the instant case. Further it appears that in the cases of Rukmini and Bela Das (supra) the tenant was in a bona fide doubt about the plaintiff being entitled to realise the entire rent. In the instant case as seen above there was no scope for any doubt. So far as respondent No. 3 is concerned he knew that late Kedar Nath Agarwal was the exclusive owner of the property. He further knew that late Kedar Nath Agarwal had executed a will whereby house No. 103 K. P. Kakkar Road, Allahabad, including the shop in question had been bequeathed exclusively to the petitioner. He, however, asserted that from the recitals of the will he came to know that the said house was ancestral which assertion on a plain reading of the said will, as held by the IInd Additional District Judge in Civil Appeal No. 9 of 1973 referred to above, was wholly untenable. It further appears that in spite of the decision of the Additional District Judge aforesaid respondent No.3 persisted in asserting that the plea raised by him in suit No. 2 of 1972 was correct. Annexure 7 to the supplementary affidavit aforesaid is copy of the reply of respondent No. 3 to the notice dated Dec. 16, 1974, sent by the petitioner. This reply was given before the institution of the present suit. In para 10 of this reply respondent No. 3 has reiterated that the plea raised by him in suit No. 2 of 1972 was correct and bona fide. He further asserted that the matter is undecided as in that suit other sons and grand-sons of late Kedar Nath Agarwal were not parties. In para 10 of this reply respondent No. 3 has reiterated that the plea raised by him in suit No. 2 of 1972 was correct and bona fide. He further asserted that the matter is undecided as in that suit other sons and grand-sons of late Kedar Nath Agarwal were not parties. In this background it is apparent that the plea raised by respondent No. 3 in suit No. 2 of 1972 denying the exclusive title of the petitioner and claiming his status to be that of an owner was unequivocal and absolutely definite and it is not possible to take the view that respondent No. 3 in good faith and for his own protection had put the petitioner to strict proof of his title by raising the pleas referred to above in suit No. 2 of 1972. For this reason the decision of this Court in Jagdish Prasad Gupta v. Kanti Devi, 1980 All WC 720 : 1981 All LJ 173 and Amar Krishna v. Nazir Hasan, AIR 1939 Oudh 257 which too were relied on by counsel for respondent No. 3 are not applicable. 21. Counsel for respondent No. 3 then urged that by sending the notice dated Dec. 16, 1974, and thereafter accepting the bank-draft for the sum of Rs. 1272/- towards rent of the shop in question the petitioner waived in the forfeiture which had accrued on account of the denial of the title of the petitioner in suit No. 2 of 1972. Reliance in this behalf was placed on S. 112 of the Transfer of Property Act which inter alia provides that a forfeiture under S. 111, cl (g), is waived by acceptance of rent which has become due since the forfeiture. Reliance was also placed on Croft v. Lumley, (1858) 10 ER 1459 where it was held that what was of importance was what the lessor did and not what he said and that although he received payment on the understanding that it was to be regarded as damages for use and occupation, or mesne profits, it nevertheless operated as a waiver of the forfeiture. Reliance was also placed on Chotu Mia v. Mt. Reliance was also placed on Chotu Mia v. Mt. Sundri, AIR 1945 Pat 260 (FB) where relying on the decision in the case of Croft (supra) it was held that where after the forfeiture of the lease the lessee remits certain amount to the lessor as rent and intends it as payment of rent and the landlord accepts it only as damages for use and occupation, the acceptance of payment by the landlord must be deemed to be as rent and operates as a waiver of the forfeiture. I find it difficult to accept this submission either. My reasons for taking this view are two-fold. Firstly, the view taken in the case of Croft (supra) and relied on in the case of Chotu Mia (supra) cannot be treated as good law in view of the decision of the Supreme Court in Basant Lal v. State of U.P., AIR 1981 SC 170 : 1980 All LJ 1380, where, inter alia, it was held that if rent was accepted under protest there was no waiver as there was no intention to do so. Secondly, the suit in which the impugned orders were passed had been instituted by the petitioner for the ejectment of respondent No. 3 on the ground contained in cl. (f) of S. 20(2) of the Act. It is this provision which has to be interpreted and the petitioner is not entitled to rely on S. 112 of the Transfer of Property Act, 1882 as such. In Pradesh Kumar v. Benond Behari, AIR 1980 SC 1214 : 1980 All LJ 549 where a suit for the ejectment of the tenant had been instituted on the ground contained in cl. (a) of S. 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, namely, failure to pay arrears within one month of the service of the notice of demand, it was held that the tenant could not claim the protection of S. 114 of the T. P. Act. It was pointed out that the tenant could not claim double protection. Similar observations were made by the Supreme Court while dealing with cases under rent acts in V. Dhanpal Chettiar v. Yasodai Ammal, AIR 1979 SC 1745 and K.K. Krishnan v. M.K. Vijaya Raghavan, AIR 1980 SC 1756 . 22. It was pointed out that the tenant could not claim double protection. Similar observations were made by the Supreme Court while dealing with cases under rent acts in V. Dhanpal Chettiar v. Yasodai Ammal, AIR 1979 SC 1745 and K.K. Krishnan v. M.K. Vijaya Raghavan, AIR 1980 SC 1756 . 22. Relying on the decisions of the Supreme Court in V. Dhanpal Chettiar and K. K. Krishnan cases (supra) it was, while dealing with the provisions of section 14(1) proviso of the Delhi Rent Control Act, 1958, held by the Delhi High Court in Smt. Pushpa Talwar v. Smt. A.N. Kapoor, AIR 1983 NOC 15 that the plea that by acceptance of rent the landlord waives the breach of the terms of the covenant and is not entitled to eject the tenant and such acceptance of rents is not only condonation of breaches in the past but is a licence for breaches in future is not open to the tenant if the ground of eviction is covered by any of the grounds mentioned under the Rent Control Act. 23. In the case of Naraindas (1982 All LJ 1441) (supra) a Division Bench of this Court had also taken the view that it was not correct to say that despite the provisions of the State Rent Act the requirements of S. 111(g) of the Transfer of Property Act were required to be fulfilled. 24. In Ram Bux v. Sohanlal, ILR (1962) 12 Raj 172 while dealing with cl. (f) of S. 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which seems to be in pari materia with cl. (f) of S. 20(2) of the Act it was held that it is true that acceptance of rent by the landlord accruing due after a forfeiture with knowledge of forfeiture amounts to waiver under S. 112 of the T. P. Act. But it is not fatal to the rights of the landlord to seek an order of ejectment where in the notice he simultaneously tells the tenant to vacate the premises within 15 days and pay its rent till that period because he had forfeited the tenancy due to the denial of his title. This is so because 'waiver' is an intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. This is so because 'waiver' is an intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. It was further held that the question whether a landlord has waived his right or condoned the conduct of the tenant within the meaning of cl. (f) of S. 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act is a question to be determined on the facts of each case. The act of the landlord in accepting rent up to the period he asks the tenant to vacate the premises when in the notice he makes clear to him his right to go to the court on account of his denial of title, should not be regarded as an unequivocal act of affiance of tenancy amounting to waiver or condonation of the conduct of the tenant depriving him of his right to sue for ejectment. 25. In the case of Narain Das (1982 All LJ 1441) (supra) a question came up for consideration as to whether the filing of an application for release under S. 21 of the Act by the landlord treating the tenant as tenant amounted to condonation of the tenant's conduct of renouncing his character as a tenant and denial of the landlord's title within the meaning of S. 20(2)(f) of the Act and the question was answered in the negative and it was held that filing of an application for release as aforesaid did not amount to condonation of the tenant's conduct. 26. Coming to the question as to whether on the facts of the instant case it could be said that the petitioner has waived his right of re-entry or condoned the conduct of the tenant as contemplated by cl. (f) of S. 20(2) of the Act, the observations of the Supreme Court in the case of Basant Lal(1980 All LJ 1380) (supra) and of the Rajasthan High Court in the case of Ram Bux (ILR (1962) 12 Raj 172) (supra) that it is the intention of the landlord which is the determining factor have to be kept in mind. As such, for deciding this question the conduct of the landlord is of considerable significance. In other words decision of this question depends on how the landlord has behaved with the tenant after the tenant has renounced his character as such or denied his title. As such, for deciding this question the conduct of the landlord is of considerable significance. In other words decision of this question depends on how the landlord has behaved with the tenant after the tenant has renounced his character as such or denied his title. What has to be found out is whether the behaviour, conduct and intention of the landlord has been such on the basis of which it could be said that the landlord has waived his right of re-entry or condoned the conduct of the tenant. As in the case of Ram Bux (supra) so in the instant case also the petitioner in his notice dated Dec. 16, 1974 which was a combined notice requiring respondent No. 3 to pay arrears of rent and terminating his tenancy it was specifically asserted by the petitioner that he had forfeited the tenancy of respondent No. 3 due to denial of his title, that his tenancy was being terminated and that he was required to vacate the shop in question. Thereafter he also filed the suit for ejectment of respondent No. 3 in which the impugned orders were passed. In this view of the matter it is difficult to hold that the conduct of the petitioner was such from which an inference may be drawn that he had waived his right of re-entry or had condoned the conduct of respondent No. 3. 27. Sub-sec. (2) of S. 20 of the Act as already seen above starts with the words "A suit for the eviction of a tenant from a building after the determination of his tenancy". On a plain reading of this sub section it becomes apparent that before a suit can be instituted for the ejectment of a tenant on one or more of the grounds specified in sub-sec. (2) of S. 20 of the Act the tenancy has to be determined. This can be done by serving a notice under S. 106 of the Transfer of Property Act. Till the date from which the tenancy has been determined by serving such a notice the landlord is entitled to receive his rent from the tenant. Consequently, if the amount payable by the tenant till that date is to be demanded by the landlord it can be demanded only as rent. Till the date from which the tenancy has been determined by serving such a notice the landlord is entitled to receive his rent from the tenant. Consequently, if the amount payable by the tenant till that date is to be demanded by the landlord it can be demanded only as rent. If in a combined notice demanding arrears of rent and terminating his tenancy the tenant is required to pay the arrears of rent till the date of the termination of the tenancy, it is done by the landlord because he cannot claim that amount otherwise than as rent. As such, such demand cannot obviously be treated as an intention of the landlord to waive his, right of re-entry or condone the conduct of the tenant. Likewise the acceptance of rent also for the reasons already indicated above and on the facts of instant case pointed out earlier will not have that effect. 28. In view of the foregoing discussion the impugned order dated May 16, 1978, passed by the Judge, Small Causes, cannot be sustained. The revision filed by the petitioner was dismissed by the District Judge on Aug. 3, 1978, summarily by the following order : "Heard. Perused the record. No ground to admit. Rejected." The District Judge has not given his own reasons for nonsuiting the petitioner and appears to have agreed with the reasons recorded by the Judge, Small Causes. Consequently, the order of the District Judge also cannot be sustained. 29. In the result the writ petition succeeds and is allowed. The impugned orders dated May 16, 1978 and Aug. 3, 1978, passed by the Judge, Small Causes. Allahabad and the District Judge, Allahabad, respondents 2 and 1 respectively, are quashed and the Judge, Small Causes, Allahabad, respondent No. 2, is directed to decide the suit afresh in accordance with law keeping in mind the observations made above. The parties shall bear their own costs.