JUDGMENT - BRAHME P.S., J.:-This is an appeal filed by the original plaintiffs in Reg. Civil Suit No. 108/1981 challenging the judgment and decree dated 18-11-1989 passed by the Joint District Judge, Akola in Reg. Civil Appeal No. 249/1985 dismissing the suit filed by the plaintiffs. 2. The case of the plaintiff was that Gangubai had let out the northern half portion of the ground floor of the suit house to the original defendant No. 1 on a monthly rent of Rs. 8/-, while the southern portion of the suit house on the groundfloor was let out to the original defendant No. 2 on the monthly rent of Rs. 9/-. In the year 1972-1973, Gangubai initiated Rent Control proceedings against both the defendants. The proceedings against the defendant No. 1 was Revenue Case No. 20/71/72-73 and the proceedings against the defendant No. 2 was Revenue Case No. 19/71/72-73. By the orders dated 19-8-1974, the Rent Controller granted permission to Gangubai to issue ejectment notice to the defendants. Those orders were confirmed in appeal by R.D.C. Then on 24-1-1975, Gangubai served separate notice on defendant No. 1 by the end of 6-3-1975 and on defendant No. 2 by the end of 11-2-1975. Those notices were served on the defendants No. 1 2 on 25-1-1975. The defendants, however, did not vacate the premises. Gangubai died on 4-1-1979, but before her death, she filed the present civil suit against the defendants. The plaintiffs have been substituted as Legal Representatives of Gangubai in the suit after her death. The plaintiffs sought possession of the suit premises from the defendants. 3. The defendants 1 2 resisted the suit by their Written Statement Exh. 19. Their contention was that even after termination of the tenancy by issuing notices, they continued in possession and paid rent which was accepted from them by the landlady. Therefore, by accepting the rent Gangubai has waived the notice and the permission granted by the Rent Controller. They therefore, prayed that the suit be dismissed with costs. 4. The parties went on trial on the issues framed at Exh. 25. The trial Court came to the conclusion that neither Gangubai, nor the plaintiff's have waived the notice of eviction or permission for ejectment and that the suit notice is legal and valid and that the plaintiffs are entitled to recover the possession and the damages. 4. The parties went on trial on the issues framed at Exh. 25. The trial Court came to the conclusion that neither Gangubai, nor the plaintiff's have waived the notice of eviction or permission for ejectment and that the suit notice is legal and valid and that the plaintiffs are entitled to recover the possession and the damages. In keeping with these findings in view, the learned Judge of the trial Court decreed the plaintiffs suit against the defendants No. 1 2. 5. As stated earlier, the defendants preferred Regular Civil Appeal No. 249/1985. The Appellate Court on reappraisal of the evidence came to the conclusion that the suit was incompetent as a single suit has been filed against the defendants for eviction when the premises in occupation of the defendants on lease were distinct and separate. The Appellate Court also found that Gangubai having accepted the rent has waived notice determining the tenancy of the defendants. Consequent upon these findings, the Appellate Court upon these findings, the Appellate Court allowed the appeal and dismissed the plaintiffs suit. 6. The plaintiffs have filed the present Second Appeal which came to be admitted by this Court on 20-4-1992 on substantial question of law "whether there is waiver by acceptance of rent under protest" and whether its effect was not properly dealt with by the Appellate Court. 7. I have heard Mr. Bhandarkar, the learned Counsel appearing for the appellants. He submitted that the Appellate Court committed an error in finding the suit incompetent when there was no objection on the side of the defendants for maintainability of the suit on the ground of mis-joinder or non-joinder of parties under Order 1, Rule 13 of C.P.C. He submitted that under Order 1, Rule 9 of C.P.C., no suit shall be defeated on the ground of non-joinder or mis-joinder of parties. No prejudice was caused to the defendants by deciding the suit inspite of mis-joinder of parties. He submitted that though the tenaments in possession of the defendants No. 1 2 were separate, same were however, let out by Gangubai and therefore, cause of action for seeking possession of the premises was common and therefore, a single suit was tenable. 8. No prejudice was caused to the defendants by deciding the suit inspite of mis-joinder of parties. He submitted that though the tenaments in possession of the defendants No. 1 2 were separate, same were however, let out by Gangubai and therefore, cause of action for seeking possession of the premises was common and therefore, a single suit was tenable. 8. He submitted that the Appellate Court was in error in holding that because of acceptance of rent by the landlady after termination of service by issuing the notice, there was waiver on the part of the landlady. He pointed out that mere acceptance of rent, without there being anything more and that too under protest, does not amount to waiver of notice. He pointed out that there is nothing on record brought by the defendants to show that the landlady by accepting rent indicated continuance of the lease. Infact, the plaintiffs had diligently prosecuted the suit for possession. He, therefore, urged that the Appellate Court has erred is substantial question of law and therefore, the appeal be allowed and the decree passed by the trial Court for possession should be restored. 9. Mr. Rizwy, the learned Counsel for the respondents submitted that after permission was granted, landlady accepted the rent. He pointed out that the landlady issued communication indicating that she has accepted the rent under protest. But the Appellate Court has rightly found that the said communication was afterthought in asmuchas it was on the part of the landlady subsequent to the acceptance of rent. The landlady accepted the amount sent by the defendants as rent. She did not at any time while accepting the amount expressed that the amount was accepted under protest and much less as not rent, but as the damages for occupation of the premises by the defendants. It is submitted by the learned Counsel that mere acceptance of rent even under protest cannot give cause of action for filing the suit. When the amount sent is accepted as rent, it means to waiver. There should be explanation by the landlady that the amount is accepted not as rent as tenancy is already terminated. 10. Mr. Rizwy the learned Counsel further submitted that the Appellate Court has rightly found that the suit was not maintainable. He placed reliance on a decision reported in (Kali Charan, Appelllant v. Ganesh Prasad and another, Respondent)1, A.I.R.1971 All. 501. 10. Mr. Rizwy the learned Counsel further submitted that the Appellate Court has rightly found that the suit was not maintainable. He placed reliance on a decision reported in (Kali Charan, Appelllant v. Ganesh Prasad and another, Respondent)1, A.I.R.1971 All. 501. In that case, it has been held that single suit against the two tenants is not maintainable. Therefore, he urged that the appeal be dismissed with costs. 11. It is needless to say that only two substantial questions if law are involved in this appeal. First is whether the first Appellate Court has committed an error of law in holding that the suit was not maintainable. Second question of law is whether the first Appellate Court was right in holding that there was waiver of notice for termination of tenancy of the defendants in the facts and circumstances of the case. 12. The first objection of the learned Counsel Mr. Bhandarkar for appellants is that the joinder of both the defendants in the suit was at the most mis-joinder of the parties. The defendants at the initial stage of the proceedings in the suit did not take objection on the ground of mis-joinder of parties, when the no objection was raised at the initial stage. As against this, Mr. Rizwy the learned Counsel appearing for the respondents placed reliance on a decision reported in A.I.R. 1971 Allahabad page 501. It is significant to note that the facts of this case are quite similar to the facts of the case before hand. This is in the sense a single suit was filed for eviction against the two tenants in distinct portion of the house. There was objection as to the maintainability of the suit by the tenants. It was contended on behalf of the landlady that it was a case of mis-joinder or non-joinder of parties and therefore, the suit should be saved under Order 1, Rule 3 of C.P.C. The matter ultimately reached to the High Court and the High Court has held that the provisions of Rule 3 of Order 1 of C.P.C. are not applicable. The suit against two defendants was not based on the same act or transaction or series of acts or transactions. The tenancy of each one of them was separate in distinct portions of the house. The transaction between the plaintiff with each of the defendants was separate and distinct. The suit against two defendants was not based on the same act or transaction or series of acts or transactions. The tenancy of each one of them was separate in distinct portions of the house. The transaction between the plaintiff with each of the defendants was separate and distinct. Termination of tenancy of one and refusal to vacate the premises gave rise to a separate right to the plaintiff as against the tenant. Merely other accommodation let out to the second defendant being in the same house and second defendant also having refused to vacate after termination of this tenancy would not make his refusal the same act or transaction or series of the same acts or transactions as the act or transaction of the first defendant. This Court also considered the contention that the suit filed by the plaintiffs could be saved under Rule 9 of Order 1 C.P.C. The Court observed that it is difficult to apply Rule 9 to a case where under Rule 3 of Order 1, the suit is incompetent. It is observed that impleading two defendants to a suit against whom there are independent causes of action is neither a case of mis-joinder or non-joinder of parties. The suit as brought was incompetent and therefore, deserves to be thrown out. The Court ultimately found that a single suit for eviction against two tenants in distinct portions of the house is not tenable. In my opinion, having regard to this legal position, the Appellate Court was perfectly justified in dismissing the suit as the same being incompetent. In the case before hand, there is additional circumstances which justified the conclusion arrived at by the Appellate Court. It is admitted that the landlady initiated two separate proceedings before the Rent Controller for seeking permission to terminate the tenancy. Then after permission was granted, the landlady had issued two separate notices to defendants terminating their tenancy. In the background of this, it is obvious that the cause of action vis a vis the defendants was distinct and separate. The learned Counsel Mr. Bhandarkar has tried to confuse between the common and the same cause of action. In the instant case, the cause of action so far as the defendants are concerned is the same, but it cannot be construed as common. The learned Counsel Mr. Bhandarkar has tried to confuse between the common and the same cause of action. In the instant case, the cause of action so far as the defendants are concerned is the same, but it cannot be construed as common. It goes without saying that the defendants having in occupation of the premises on lease under separate grant of lease, the cause of action for their eviction, on their refusal to vacate the premises is distinct and separate. Therefore, there is no substance in the contention of the Counsel for the appellants that the Appellate Court has committed an error of law in finding that the single suit was not maintainable. As it is not a case of mis-joinder or non-joinder of parties, the suit could not be served by taking recourse to Rule 9, Order 1 of C.P.C. 13. Mr. Bhandarkar also placed reliance on a decision reported in 2000(3) S.C.C. 699 (State of U.P., appellants v. Ramswarup Saroj, respondent)2. The Apex Court has held that plea regarding non-joinder of party cannot be entertained for the first time before the Supreme Court if the same was not taken before the High Court and has not resulted in failure of justice. I have already found that the question involved in this matter does not relate to the plea as to mis-joinder or non-joinder of a party. The question involved is about competency of the single suit against two distinct tenants occupying separate premises let out to them by the landlady. Therefore, the decision of the Apex Court is of no assistance in the case before hand. 14. We now turn to the second question as to whether acceptance of rent by the landlady amounts to waiver of notice of termination. The Appellate Court has categorically held that in the facts and circumstances of the case, acceptance of rent amounts to waiver of notice. The defendants' main contention was that even after receipt of notices, they offered rent to Gangubai and she accepted the rent. The plaintiff's witness Ganesh admitted the signature of Gangubai on money order coupans and he expressly admitted that till April, 1979 Gangubai accepted the rent from the defendants. Through that evidence acceptance of rent by Gangubai after issuance of termination of notice dated 24-1-1975 has been proved. 15. However, the plaintiffs contended that acceptance of rent by Gangubai was under protest. Through that evidence acceptance of rent by Gangubai after issuance of termination of notice dated 24-1-1975 has been proved. 15. However, the plaintiffs contended that acceptance of rent by Gangubai was under protest. In that connection, reliance has been placed on the intimation given by Gangubai to the defendants that she accepted the rent sent by them by Money Order without prejudice to her rights. The Appellate Court has found that these intimation letters could not make out that the rent for the period from 1975 till April, 1979 was accepted by Gangubai under protest. Admittedly, when these intimation letters were sent, the proceedings before the House Rent Controller for grant of permission to issue notice of ejectment were pending in appeal. With reference to that proceedings, the said intimations were sent to the defendants informing that the rent was accepted without prejudice to the rights of Gangubai. There is no mention in those intimation letters that even in future, the rent, if sent, will be accepted without prejudice to Gangubai's rights and under protest. Therefore, the Appellate Court has rightly observed that those intimation letters cannot be of any assistance to the plaintiffs in establishing that the rent was accepted under protest or without prejudice to the landlady's right. 16. Thereafter, the plaintiffs rely upon the notice dated 16-5-1979 sent by the plaintiffs No. 1 Ganesh to the defendant No. 2. It was in reply to the notice Exh. 51 sent by the defendant No. 1. By the notice, the defendant No. 2 was informed that henceforth, the rent be sent to the plaintiff No. 1 as damages and instructions are given to the plaintiff No. 1 to accept the same as damages without prejudice to the rights of the landlady. Thereafter, the rent sent by the defendant No. 2 by Money Order, was refused. Then the defendant No. 2, however, intimated that till any communication from landlady the rent would be deposited in Post Office and in case any action was taken against him for non-payment of rent, the plaintiff would be responsible to all the consequences. Thus, it is clear from the evidence on record that the rent for the period after termination of notice dated 24-1-1975, till April, 1979 was accepted without any protest by the landlady. That totally falsifies the plaintiffs claim about acceptance of rent under protest. Thus, it is clear from the evidence on record that the rent for the period after termination of notice dated 24-1-1975, till April, 1979 was accepted without any protest by the landlady. That totally falsifies the plaintiffs claim about acceptance of rent under protest. The Appellate Court has also observed that the provisions of section 113 of the Transfer of Property Act did not contemplate acceptance of rent under protest as a good defence for acceptance. The Appellate Court gave a categorical finding that the plaintiff landlady accepted rent from the defendants after termination of notices. 17. Therefore, according to the Appellate Side, there was waiver of notice terminating the tenancy. The Appellate Court has also found that the case of the defendants cannot be a case of tenants holding over as is contemplated under section 116 of the Transfer of Property Act. The Appellate Court has rightly placed reliance on the illustration (a) given below section 113 of the Transfer of Property Act. That the illustration makes it clear that if the landlady accepts the rent before hand, the landlady has accepted the rent after issuance of quit notice to the defendants. In addition to that, the rent was accepted for a period of 4 years since after issuance of the notice. The suit for recovery of possession was instituted after a period of 6 years since issuance of the notice terminating the tenancy. These facts themselves establish that the notices issued by the landlady stood waived by acceptance of the rent by the landlady. That is a finding of fact. It is very difficult to interfere with the findings in second appeal under section 100 of the C.P.C. The findings recorded by the Appellate Court is based on evidence on record. That is a finding of fact. Therefore, it is very difficult to accept the submission of Mr. Bhandarkar Advocate that the Appellate Court has committed an error in holding that there was waiver on account of the acceptance of rent after issuance of notice of termination. In the result, the Appellate Court has committed no error of law much less substantial question of law in holding that the suit filed by the plaintiff was incompetent and that there was waiver of notice terminating the tenancy. There is no substantial reason and justification to interfere with the findings recorded by the Appellate Court. In the result, the Appellate Court has committed no error of law much less substantial question of law in holding that the suit filed by the plaintiff was incompetent and that there was waiver of notice terminating the tenancy. There is no substantial reason and justification to interfere with the findings recorded by the Appellate Court. The appeal merits no consideration at all. The appeal will have to be dismissed. Hence, the order. ORDER Appeal is dismissed. No order as to costs. Appeal dismissed. -----