The present petitioners as plaintiffs filed a suit against the opposite patties for ejectment before the learned Munsiff No. l, Jorhat. The grounds for ejectment were defaulter and bonafide requirement. The learned: Munsiff decreed the suit. However, the learned lower appellate Court allowed the appeal and set aside the above decree on the ground of waiver as the plaintiffs received the arrears rent, during the pendency of the appeal. 2. Heard Mr. Sen, learned counsel for the petitioners and Mr. Goswami, learned counsel for the opposite parties. 3. There is no dispute at the Bar that, the waiver is a mixed question of both law and facts. In; this connection the attention of this Court has beeo, drawn to the decision of the Apex Court in Basheshar Nath vs. Commissioner of Income-tax, AIR 1959 S.C. 149 . In paragraph 53 of the said report it has been held, "It has been said that waiver is a troublesome term in the law. The generally accepted connotation is that to constitute 'waiver', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege.” 4. The lower Court below relied on a Full Bench decision of this; Court in Kali Kamar Sen and another vs. Makhan Lai Biswas, AIR 196ft Assam & Nagaland 66. The learned counsel has drawn coy attention to paragraphs 27 and 24 of the report to bring home the point, that the question of waiver has to be decided considering, the facts and circumstances of each case. In paragraph 27 it was held that the question of waiver has to be decided on the facts and circumstances of each case. This view was also reiterated in paragraph 44 of the said report. 5. The plea of waiver was not taken before the learned trial Court, and as such, no issue was framed, 6. The question of waiver had to be considered by the learned., lower appellate Court because of the subsequent events. As waiver is a mixed question of facts and law, this Court by exercising revisional jurisdiction cannot decide this point. On perusal of the impugned judgment I also donot find that the learned lower appellate Court considered all aspects of the matter to come to a definite finding regarding waiver. As waiver is a mixed question of facts and law, this Court by exercising revisional jurisdiction cannot decide this point. On perusal of the impugned judgment I also donot find that the learned lower appellate Court considered all aspects of the matter to come to a definite finding regarding waiver. I am, therefore, of the opinion that this is a fit case for remand. 7. In the result, the appeal is remanded to the learned lower appellate Court for a decision only on the point of waiver and in doing so the learned Court shall give an opportunity to botlrtfefc-4 parties. Parties are at liberty to adduce further evidence on this point before the learned lower appellate Court, as agreed to by the learned counsel before this Court. As the matter is pending for a long time, the learned appellate Court below shall try to dispose o£ the appeal expeditiously preferably within a period of 3 (three) months. With the above direction the petition is disposed of.