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2006 DIGILAW 280 (CAL)

KHANA LAHIRI v. SUNITI KUMAR CHATTERJEE

2006-05-06

JAPAN KUMAR DUTT

body2006
Japan Kumar Dutt, JJ. ( 1 ) HEARD the learned Advocates for the parties. ( 2 ) THE plaintiffs/respondent filed a suit against the defendants/appellants for recovery of khas possession, and for damages, of the suit property on the ground of efflux of time. The plaintiffs claimed that the plaintiff is the absolute owner of the suit property which happens to be a godown. According to the plaintiffs the suit property is included in the property which was purchased by the plaintiff in the year 1959 from one Shri Shailendra Nath Guha Roy for valuable consideration. The plaintiff has alleged that the defendant was a lease-hold tenant under the plaintiff in respect of the said godown for a period commencing from 01. 07. 1959 and ending with the last date of July, 1980 at a rental of rs. 125/- per month payable according to English Calendar month in terms of the lease deed which was executed on 23. 06. 1959. The plaintiff further alleged that by a notice dated 07. 01. 1980 the plaintiff asked the defendant to deliver vacant and peaceful possession of the suit property in compliance with the terms of the lease since the said lease would terminate with the expiry of the last date of July, 1980. The plaintiff has alleged that the defendant failed to quit and vacate the suit premises and has been occupying the same as a trespasser since 01. 08. 1980. ( 3 ) THE defendant contested the said suit by alleging that by a notice dated 17th November, 1966 the lease was forfeited by the plaintiff on the ground of breach of terms of the lease and as such the lease came to an end. According to the defendant, thereafter by payment and acceptance of rent a tenancy was created under the provisions of the West Bengal Premises Tenancy Act and hence the suit should be dismissed. ( 4 ) THE suit came up for hearing when the learned trial Court found that the plaintiff is undoubtedly the owner of the suit properly and that there was no dispute that a lease deed was executed on 23. 06. 1959 in respect of the suit property for a term commencing from 1. 7. 1959 and ending with the last day of july, 1980. 06. 1959 in respect of the suit property for a term commencing from 1. 7. 1959 and ending with the last day of july, 1980. The learned trial Court found that the plaintiff had determined the lease-hold tenancy of the defendant for violation of the terms of lease by the notice dated 17. 11. 1966 wherein the defendant was required to vacate the lease-hold premises on 01. 06. 1967. The trial Court found that by virtue of the said notice dated 17. 11. 1966 the lease had been rescinded and the onus of proving that the lease is subsisting lies upon the plaintiff but the plaintiff has failed to discharge such onus and as such the lease became inoperative in terms of the said notice dated 17. 11. 1966. The learned trial Court was of the opinion that mere payment and acceptance of rent subsequent to the issuance of the notice dated 17. 11. 1966 do not constitute waiver of the said notice and some evidence to prove an agreement to revive the contractual tenancy is necessary to constitute such waiver. According to the learned trial Court, by virtue of the said notice dated 17. 11. 1966 the defendant was no longer a lease-hold tenant under the Transfer of Property Act but a monthly tenant under the West Bengal Premises Tenancy Act due to payment and acceptance of rent since May, 1967. The learned trial Court further held that deposit of rent with the Rent Controller also proves that the defendant is not a lease-hold tenant but a monthly tenant under the West Bengal Premises Tenancy Act. The learned trial Court also found that a statutory notice-under Section 13 (6) of the West bengal Premises Tenancy Act should have been served upon the defendant but since no such notice was served the issue was decided against the plaintiff and the learned trial Court held that the suit as framed is not maintainable and the suit was dismissed. ( 5 ) THE plaintiff preferred an appeal before the learned First Appellate court challenging the judgment and decree passed by the learned trial Court. The learned First Appellate Court by the impugned judgment and decree allowed the appeal and set aside the judgment and decree of the learned trial Court. The learned First Appellate Court framed a question as to whether or not the said notice dated 17. 11. 1966 was waived. The learned First Appellate Court by the impugned judgment and decree allowed the appeal and set aside the judgment and decree of the learned trial Court. The learned First Appellate Court framed a question as to whether or not the said notice dated 17. 11. 1966 was waived. While dealing with such question the learned First Appellate Court took into consideration the fact that the lease deed dated 23. 06. 1959 was not disputed by the defendant who relied upon the said lease deed and filed the same in connection with a proceeding before the building Tribunal of the Calcutta Municipal Corporation. The learned First appellate Court considered the deposition of the defendant before the said building Tribunal. In considering such deposition the learned First Appellate court found that the defendant/appellant specifically admitted that he was a lease-hold tenant in respect of the premises in question. The learned First appellate Court observed that the defendant deposed before the Building tribunal sometime in 1972 i. e. after about five years from the date on which he was asked to vacate, claiming himself to be a lease-hold tenant in the suit property. The learned First Appellate Court held that there was an admission on the part of the defendant that he is a lease-hold tenant in view of his deposition before the Building Tribunal which took place five years after the notice dated 17. 11. 1966 was issued and as such the defendant cannot claim to be a tenant under the West Bengal Premises Tenancy Act. The learned First Appellate Court also held that the evidence before the Building Tribunal is consistent and is supported by another documentary evidence i. e. the lease deed but the subsequent evidence before the learned trial Court itself is not supported by any document and, therefore, the earlier evidence before the Building Tribunal has more force than the latter. According to the learned First Appellate Court the learned trial Court committed a mistake in relying upon weaker evidence and rejecting the stronger evidence. The learned First Appellate Court held that the suit is maintainable and that the defendant was a lease-hold tenant and not a tenant under the West Bengal Premises Tenancy Act. ( 6 ) THE learned First Appellate Court found that the defendant continued to remain in possession of the suit property in spite of the notice dated 17. 11. The learned First Appellate Court held that the suit is maintainable and that the defendant was a lease-hold tenant and not a tenant under the West Bengal Premises Tenancy Act. ( 6 ) THE learned First Appellate Court found that the defendant continued to remain in possession of the suit property in spite of the notice dated 17. 11. 1966 and thus did not comply with the requisition made in the said notice which was for practical purposes ineffective; the plaintiff allowed the defendant to possess the suit property in spite of the said notice and also accepted rents and this goes to show that the plaintiff did not press the ejectment notice and also did not give effect to the said notice and such conduct of the parties goes to show that the said notice dated 17. 11. 1966 was waived; and mere acceptance and payment of rent cannot constitute a new agreement of tenancy under the west Bengal Premises Tenancy Act. The learned First Appellate Court came to the finding that the learned trial Court's finding on the question whether or not the tenancy is governed by the West Bengal Premises Tenancy Act after the notice dated 17. 11. 1966, is contrary to the provisions of Section 113 of the transfer of Property Act. The learned First Appellate Court, thus, allowed the appeal and set aside the judgment and decree passed by the learned trial Court. Challenging such judgment and decree passed by the learned First Appellate court the defendant has preferred this appeal. ( 7 ) IN this second appeal the following are the substantial questions of law which have been framed for consideration of this Court: -" (i) Whether after the issuance of the notice dated 17. 11. 1966 allegedly terminating the lease, respondent's acceptances of rent paid by the defendant-appellant constituted waiver of the said notice dated 17. 11. 1966. (ii) Whether the payment and acceptance of rent in between the parties even after the issuance of the said notice dated 17. 11. 1966 had the effect of bringing the tenant under the purview of the West bengal Premises Tenancy Act, 1956 and making the original lease ineffective. 11. 1966. (ii) Whether the payment and acceptance of rent in between the parties even after the issuance of the said notice dated 17. 11. 1966 had the effect of bringing the tenant under the purview of the West bengal Premises Tenancy Act, 1956 and making the original lease ineffective. (iii) Whether the learned First Appellate Court was right in relying upon the evidence of the defendant/ appellant in a certain proceeding before the Building Tribunal and treating the same to be an admission on the part of the defendant/appellant in the facts and circumstances of this case. " ( 8 ) THE learned Counsel for the defendant/appellant submitted that the lease dated 23. 06. 1959 was forfeited by a notice dated 17. 11. 1966 for violation of the terms of the lease and due to such forfeiture the lease came to an end before the agreed lease-period since the plaintiff elected to determine the lease. The said learned Counsel relies upon the decision reported in AIR 1984 Bombay 400, Geetabai Namdeo Daf v. B. D. Manjrekar and another decision reported in 1993 (4) SCC 349 , Guru Amarjit Singh v. Rattan Chand and Ors. According to the said learned Counsel the original plaintiff or his wife having not been examined, a presumption would arise that the case set up by the plaintiff has not been established at all. The learned Counsel for the defendant/appellant further relies upon a notice dated 7th April, 1969 which was issued by the Constituted Attorney of the plaintiff and submitted that such letter would show that a tenancy under the West Bengal Premises Tenancy Act was created after the forfeiture of the lease. The said learned Counsel also submitted that the learned First Appellate court erroneously proceeded on the basis that the defendant admitted the continuance of the lease in view of the evidence adduced in a previous proceeding before the Building Tribunal since the defendant, though was examined, was not cross-examined with regard to such earlier evidence before the Building Tribunal. In support of such contention the said learned Advocate referred to the decisions reported in AIR 1977 SC 1712 , Sita Ram Bhau Patil v. Ramchandra Nago Patil and AIR 1971 SC 2256 , Kanuambu Vish v. The State of Maharashtra and also to Section 145 of the Evidence Act. In support of such contention the said learned Advocate referred to the decisions reported in AIR 1977 SC 1712 , Sita Ram Bhau Patil v. Ramchandra Nago Patil and AIR 1971 SC 2256 , Kanuambu Vish v. The State of Maharashtra and also to Section 145 of the Evidence Act. ( 9 ) THE learned Counsel for the plaintiff/respondent fully supported the judgment of the learned First Appellate Court and contended that the learned first Appellate Court was absolutely right in proceeding on the basis of the evidence adduced by the defendant before the Building Tribunal. The said learned counsel was emphatic on the fact that the evidence before the Building Tribunal was adduced by the defendant long after the said notice dated 17. 11. 1966 was issued and in such evidence the defendant fully relied upon the lease deed of 1959 to prove his status in respect of the suit property. According to the said learned Advocate if there was really any truth in the allegation of the defendant that the lease came to end with the issuance of the notice of forfeiture dated 17. 11. 1966 and a new tenancy was created under the West Bengal Premises tenancy Act then in that event the defendant would not have relied upon the said lease deed of 1959 but would have claimed to be a tenant under the West bengal Premises Tenancy Act while adducing evidence before the Building tribunal when such evidence was adduced after a long time after the notice of forfeiture dated 17. 11. 1966 was issued. According to the said learned Advocate the conduct of the parties clearly proves that the notice dated 17. 11. 1966 was not acted upon and was waived by the parties and that mere payment and acceptance of rent subsequent to the said notice dated 17. 11. 1966 cannot prove the allegation that a different tenancy under the West Bengal Premises Tenancy act was created. The said learned Advocate contended that the notice dated 7. 01. 1980 would also show that the original lease of 1959 continued till its expiry on the last day of July, 1980. The said learned Advocate, on the question whether or not the said notice dated 17. 11. 1966 was waived and whether or not the original lease of 1959 continued after issuance of the said notice dated 17. 11. 01. 1980 would also show that the original lease of 1959 continued till its expiry on the last day of July, 1980. The said learned Advocate, on the question whether or not the said notice dated 17. 11. 1966 was waived and whether or not the original lease of 1959 continued after issuance of the said notice dated 17. 11. 1966, referred to two reported decisions namely, AIR 1976 Cal. 274 , Sudhir kumar Paul v. Sm. Indu Prova and Ors. , and AIR 1971 SC 102 , Tayabali Jaferbhai tankiwala v. M/s. Ahsan and Co. and Ors,. ( 10 ) IT appears from the perusal of the judgment of the learned First appellate Court that the said Court laid much emphasis on the fact that even after five years from the notice dated 17. 11. 1966 requiring the defendant to vacate the suit premises, the defendant had deposed before the Building Tribunal relying upon the lease deed of 1959 and, thus, the learned First Appellate Court held that the defendant even at that point of time claimed to be a lease-hold tenant and in view of such clear admission the defendant cannot claim to be a tenant under the West Bengal Premises Tenancy Act. The learned First Appellate court also held that the earlier evidence of the defendant before the Building tribunal has more force than the evidence that was adduced by the defendant before the learned trial Court and the learned trial Court committed a mistake in relying upon a weaker evidence and rejecting a stronger evidence. The learned senior Counsel for the defendant/appellant submitted that the learned First appellate Court committed a substantial error of law in not taking into consideration the fact that the defendant was not confronted with the evidence of the defendant before the Building Tribunal even though the defendant was examined. The said learned Senior Counsel submitted that in the absence of any cross-examination of the defendant in respect of the defendant's evidence before the Building Tribunal, the learned First Appellate Court should not have relied so much upon such evidence before the Building Tribunal at the time of deciding the appeal. The learned Senior Counsel has referred to the decision of Sita Ram Bhau Patil (supra ). Paragraph-16 of the said reported case is quoted below: -"16. The learned Senior Counsel has referred to the decision of Sita Ram Bhau Patil (supra ). Paragraph-16 of the said reported case is quoted below: -"16. If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions of section 145 of the Evidence Act. The provisions in the Indian Evidence act that 'admission is not conclusive proof are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even, if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule" (see Bal Gangadhar tilak v. Shrinivas Pandit, 42 Ind App 135 at p. 147 : AIR 1915 PC 7 at p. 11 ). The Judicial Committee in that case said," it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed". The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision, is contained in Section145 of the Indian Evidence Act that "a witness may be cross-examined as to previous statements made by him in writing or reduced-into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. " Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him. " Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him. " ( 11 ) THE next reported case cited on behalf of the defendant/appellant is the case of Kanu Ambu Vish (supra ). The following portion of Paragraph-10 of the said reported case may be quoted: -"10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It may be pointed out that any statement made in the Panchnama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in Panchnama but if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain, that part of the statement that is put to him does not constitute substantive evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 12 ) THE learned Counsel for the respondent stressed on his submission that there was nothing wrong in relying upon the evidence of the defendant before the Building Tribunal and that the learned First Appellate Court was fully right in relying upon such evidence of the defendant and holding the same to be a clear admission on the part of the defendant. But the learned Counsel for the respondent had no effective reply to the question of law raised by the learned counsel for the defendant/appellant. The learned Counsel for the plaintiff/ respondent also could not show that the defendant was confronted with his evidence before the Building Tribunal, even though he was examined, at the time of trial of the suit. The learned Counsel for the plaintiff/respondent also did not cite any reported decision expressing any contrary view with regard to the point in question. This being the factual position and in view of the reported decisions of the Hon'ble Supreme Court, as referred to by the learned Counsel for the defendant/appellant, this Court has to hold that the learned First Appellate court should not have relied upon the evidence of the defendant before the building Tribunal for the purpose of holding that there was a clear admission on the part of the defendant that he claimed to be a lease-hold tenant even five years after the notice to quit dated 17. 11. 1966 as has been held by the learned first Appellate Court. ( 13 ) THE learned Counsel for the defendant/appellant submitted that the plaintiff exercised the right of forfeiture by issuing the notice dated 17th november, 1966 since the plaintiff had such-right of forfeiture in case of breach of the terms and conditions and having exercised such right, the lease came to an end. ( 13 ) THE learned Counsel for the defendant/appellant submitted that the plaintiff exercised the right of forfeiture by issuing the notice dated 17th november, 1966 since the plaintiff had such-right of forfeiture in case of breach of the terms and conditions and having exercised such right, the lease came to an end. The said learned Counsel referred to the decision of Geetabai Namdeo daf (supra) and submitted that if the landlord exercised the right of forfeiture then the lease comes to an end and it cannot be said that the lease continued to be in operation even after the notice of forfeiture is issued and the period mentioned in such notice for the lessee to vacate expires. It appears from a reading of Geetabai Namdeo Daf's case that the question that was considered by the Hon'ble Judge in the said case was quite different. It appears that the question that came up for consideration in the said reported case was the question of difference between the concept of termination of tenancy on account of forfeiture on the one hand and the concept of termination of tenancy by a notice to quit under Section 106 of the Transfer of Property Act on the other hand. The Hon'ble Judge in the said reported case was pleased to hold that the two concepts are quite distinct and independent concepts. ( 14 ) THE other case cited by the learned Counsel for the defendant/ appellant is the case of Guru Amarjit Singh (supra ). It also appears that the reported case of Guru Amarjit Singh does not help the defendant/appellant because of the fact that the question that has been raised in this second appeal is a question as to whether or not there has been a waiver of the such notice dated 17. 11. 1966. The point of waiver of the said notice of forfeiture did not come up for consideration in the aforesaid two reported cases as cited by the learned Counsel for the defendant/appellant. Thus, both the reported cases, as mentioned above, can be of no assistance to the defendant/ appellant in the facts of the present case. 11. 1966. The point of waiver of the said notice of forfeiture did not come up for consideration in the aforesaid two reported cases as cited by the learned Counsel for the defendant/appellant. Thus, both the reported cases, as mentioned above, can be of no assistance to the defendant/ appellant in the facts of the present case. In the said Amarjit Singh's case the question as to when the lessee exposes himself to the risk of incurring forfeiture of his lease, whether non-acceptance of relationship of landlord and tenant amounts to disclaimer of title and as to when the landlord can determine the lease under section 111 (g) of the Transfer of Property Act and file a suit for eviction are some of the questions that came up for consideration in the said reported case but the question of waiver of notice of forfeiture was not a subject-matter of consideration in the said reported case. ( 15 ) THERE is no dispute about the fact that pursuant to the notice dated 17. 11. 1966 the defendant/ appellant did not vacate the suit premises and that the defendant/appellant continued to pay rent to the plaintiff/respondent and the plaintiff/respondent continued to accept such rent even after the said notice dated 17. 11. 1966 till the expiry of the lease period and that the terms and conditions of the lease remained the same and the rate of rent also remained the same even after the issuance of the said notice dated 17. 11. 1966. The learned Advocate for the plaintiff/respondent submitted that the plaintiff/ respondent did not press the notice dated 17. 11. 1966 and also did not intend to give effect to that notice as would appear from the conduct of the parties and that there was a waiver of the said notice dated 17. 11. 1966. The learned Advocate for the plaintiff/respondent relied upon the two reported decisions which were already adverted to before the learned First Appellate Court. The said two decisions are AIR 1971 Supreme Court 102, Tayabali Jaferbhai Tankiwala v. M/s. Ahsan and Co. and Ors. , and AIR 1976 Calcutta 274, Sudhir Kumar Paul v. Sm. Indu Prova Ghose and Ors. ( 16 ) IN Tayabali's case (supra) the landlord had issued notice of termination of tenancy wherein the tenant was asked to make payment of arrears of rent calculated upto the date of such notice. and Ors. , and AIR 1976 Calcutta 274, Sudhir Kumar Paul v. Sm. Indu Prova Ghose and Ors. ( 16 ) IN Tayabali's case (supra) the landlord had issued notice of termination of tenancy wherein the tenant was asked to make payment of arrears of rent calculated upto the date of such notice. The tenant did not vacate the premises and the second notice was sent to the tenant to deliver vacant possession of the premises and in the second notice another ground was mentioned, that is, the premises were required by the landlord for personal use and occupation. It further appears that prior to the despatch of the second notice the landlord had been paid the amount of arrears which were said to be due in the first notice. Subsequently, the landlord filed a suit for eviction and for recovery of rent and compensation for use and occupation. A dispute arose, it appears from the facts of the said reported case, as to whether there was waiver of the first notice or not. Ultimately, the matter went up to the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to consider the provision of Section 113 of the Transfer of Property Act. A portion of Paragraphs-5, 6 and 7 of the said report are quoted below: -"5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . For the purpose of the present case it is wholly unnecessary to decide whether for bringing about a waiver under section 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must come into existence. All that need be observed is that Section 113 in terms does not appear to indicate any such requirement and all that has to be seen is whether any act has been proved on the part of the present appellant which shows an intention to treat the lease as subsisting provided there is an express or implied consent of the person to whom the notice is given. 6. 6. In the present case there can be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent, of the tenant to whom the first notice had been given because he had even made payment of the rent which had been demanded though it was after the expiration of the period of one month given in the notice. 7. It further appears that the rent was sent by the tenant treating the tenancy as subsisting and not as having come to an end by virtue of the first notice. There is another significant fact which shows that it was the second notice which was considered by the landlord to be the effective notice. It was in the notice sent in October 1957 that the landlord, for the first time, raised the ground of personal necessity. In the suit requirement of personal necessity was made one of the main grounds on which eviction was sought. In the first notice which was sent in June 1956 no such requirement or ground had been mentioned. It was not open therefore, to the landlord to say that he did not want to rely on the second notice and should be allowed to base his action for eviction only on the first notice containing the ground of the default in payment of arrears of rent. We are satisfied that the suit of the landlord was rightly dismissed though we have sustained its dismissal on different reasoning. " ( 17 ) IT thus appears that the Hon'ble Supreme Court was pleased to hold that for the purpose of deciding the question of waiver of the earlier notice all that has to be shown is whether any act has been proved on the part of the landlord which shows an intention to treat the lease as subsisting even after the issuance of the first notice provided there is an express or implied consent of the tenant to whom the notice is given. ( 18 ) IN Sudhir Kumar Paul's case (supra) it also appears that after issuance of the first notice to quit and vacate the suit premises another notice was also issued by the landlord requiring the tenant to quit and vacate the suit premises but the tenant continued to be in occupation of the premises. The question before the Division Bench of this Court was whether the earlier notice was waived. In that case also Section 113 of the Transfer of Property Act came up for consideration. The Hon'ble Division Bench was pleased to consider a number of reported Supreme Court cases and the Hon'ble Division Bench came to the finding that the tenant before the expiry of the period referred to in the first notice indicated his intention to continue in occupation of the premises and thereby impliedly consenting to waive such notice and had actually continued in occupation of the premises after the period mentioned in the first notice expired and the landlord by issuing a subsequent notice intended his intention to treat the old lease as subsisting. Paragraph-9 of the said report is quoted below: -"9. Mr. Mukherjee next contended that his client should be treated as a statutory tenant within the meaning of Section 2 (II) of the West bengal Premises Rent Control Act, 1950 and the contractual tenancy ceased to subsist as and from the date of the expiry of the first notice. We have already pointed out that the earlier notice in the instant case had been waived. Consequently, the question of a statutory tenancy having come into operation did not arise. We may in this connection refer to the decision of the Supreme Court in the case of Ranjit Chandra Chowdhury v. Mohitosh Mukherjee, AIR 1969 SC 1187 . Mr. We have already pointed out that the earlier notice in the instant case had been waived. Consequently, the question of a statutory tenancy having come into operation did not arise. We may in this connection refer to the decision of the Supreme Court in the case of Ranjit Chandra Chowdhury v. Mohitosh Mukherjee, AIR 1969 SC 1187 . Mr. Mukherjee sought to rely on the decision of the Supreme Court in the case of Ganga Dutt Murarka v. Kartick Chandra Das, AIR 1961 SC 1067 and drew our attention to the observation made by the Supreme Court at page 1069 where it was observed that it was well settled that where a contractual tenancy to which the Rent Control legislation applies, has expired by efflux of time or by determination by notice to quit and the tenant continues is possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. The Supreme Court there followed the earlier decision of the federal Court in the case of Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124. Ganga Dutt's case came to be interpreted by the Supreme Court in ranjit Choudhury's case (supra) and the Supreme Court pointed out that landlord accepting rent after termination of a tenancy does not assent to the creation of a new contractual tenancy but to the continuation of the old tenancy. Their Lordships thereafter referred to Happy Homes' case air 1968 SC 471 pointing out that under Section 113 of the Transfer of property Act a notice is waived by an act on the part of the person giving it showing an intention to treat the lease as subsisting provided there is express or implied consent of the person to whom it is given. In the instant case, as we have already pointed out, there was implied consent on the part of the tenant to waive the first notice, with the result the old tenancy must be deemed to have continued and by the subsequent notice, that tenancy was sought to be terminated. In Ranjit Chowdhury's case, the tenant was served with a notice to quit dated August 11,1955 requiring him to quit and vacate with the expiry of the month of August, 1955. In Ranjit Chowdhury's case, the tenant was served with a notice to quit dated August 11,1955 requiring him to quit and vacate with the expiry of the month of August, 1955. Thereafter, the landlord accepted rent upto September, 1955 and went on accepting rent from November, 1955 to February, 1956. Thereafter, he served the second notice on February 9,1956 requiring the tenant to quit and deliver up possession with the expiry of the month of February, 1956. The Supreme Court held that the landlord by accepting rent did not expressly assent to the creation of a new tenancy but the old tenancy continued, presumably under the same terms and conditions. We have already referred to the fact that the tenant appellant in the instant case before the expiry of the period referred to in the first notice, indicated his intention to continue in occupatio'n of the premises thereby impliedly consenting to waive the notice and had actually continued in occupation of the premises after the expiry of the period stipulated in the said notice and the landlord by issuing a subsequent notice on May 10,1955 indicated his intention to treat the old lease as subsisting. The contention of Mr. Mukherjee that the appellant became a statutory tenant after the expiry of the first notice cannot, therefore, be accepted. " ( 19 ) IN Sudhir Kumar Paul's case (supra) the Division Bench of this Court was pleased to consider the case of Calcutta Credit Corporation Ltd. and Another v. Happy Homes (Private) Ltd. , AIR 1968 Supreme Court 471 and other reported supreme Court decisions including the case of Ranjit Chandra Chowdhury v. Mohitosh Mukherjee, AIR 1969 Supreme Court 1187. This Court is of the view that the law laid down is that under Section 113 of the Transfer of Property Act a notice is waived if the act of the person giving the notice shows an intention to treat the lease as subsisting provided there is an express or implied consent on the part of the person to whom the notice is given. It further appears that if the landlord goes on accepting rent from tenant even after issuing the notice terminating the tenancy during the period of lease, it does not necessarily mean that the landlord has assented to the creation of new tenancy; on the other hand, the conduct of the parties and circumstances may very well indicate that the original lease continued. ( 20 ) IN the instant case there is no dispute with regard to the facts that the lease in question commenced from 01. 07. 1959 and was due to expire on 31. 07. 1980, that is, for more than 21 years. The learned Trial Court found that after the issuance of the notice dated 17. 11. 1966, by which the defendant was required to vacate the suit premises on and from 01. 06. 1967, the defendant/ appellant duly paid rent to the plaintiff / respondent who granted rent receipt. The plaintiff did not press for eviction till he served notice dated 07. 01. 1980 wherein the plaintiff reminded the defendant that in terms of the lease of 1959 the said lease will expire on 31. 07. 1980 by efflux of time when the defendant should vacate the suit premises otherwise an eviction proceeding will be filed by the plaintiff against the defendant. ( 21 ) THE learned Advocate for the defendant/appellant has referred to a letter dated 07. 04. 1969 issued by the constituted attorney of the plaintiff to the defendant and submitted that in such letter the defendant has been described as a monthly tenant and that in the said letter a grievance has been made that the" defendant is neither paying rent from the month of June, 1967 to the plaintiff nor the defendant is depositing the rents with the Rent Controller, calcutta. The learned Advocate for the defendant/appellant submitted that since the defendant has been described as a monthly tenant and the question of not depositing the rent with the Rent Controller has been raised, it proves that the defendant was a monthly premises tenant under the West Bengal Premises tenancy Act, 1950 after the lease was terminated, according to the said learned Advocate for the defendant/appellant, by the notice dated 17. 11. 1966. The fact remains that the defendant continued to pay rent even after the expiry of the period mentioned in the notice dated 17. 11. 11. 1966. The fact remains that the defendant continued to pay rent even after the expiry of the period mentioned in the notice dated 17. 11. 1966 and the plaintiff accepted such rent till the expiry of the lease and it appears that there is no dispute with regard to such fact. The plaintiff ultimately served a notice dated 07. 01. 1980 treating the lease to be subsisting and asking the defendant to vacate the suit premises on the expiry of the lease on 31. 07. 1980 by efflux of time. Thus, it is quite clear that the plaintiff intended to treat the lease as subsisting and the defendant impliedly consented to the waiver of the said notice dated 17. 11. 1966 and to the continuance of the original lease. A letter dated 07. 04. 1969 written by the plaintiffs constituted attorney wherein the defendant was described as a monthly tenant and reference was made to the Rent Controller's Office, cannot by itself prove that a new contract of tenancy in between the parties was entered into under the West Bengal Premises Tenancy Act. The learned trial Court found that there is "no document on record to prove that on the rescission of the lease executed on 23. 06. 1959 a new lease was created. Neither is there any evidence to prove that an agreement was entered into to revive the contractual lease-hold tenancy". The learned Trial Court was of the view that "mere payment and acceptance of rent are not sufficient by themselves to constitute waiver of notice to quit" and "evidence to prove an agreement to revive the contractual tenancy is necessary to constitute such waiver". The learned trial Court held that "by virtue of the termination of the lease-hold tenancy of the defendant by notice dated 17. 11. 1966 the defendant was no longera lease-hold tenant under the Transfer of Property Act but a monthly tenant under the West Bengal Premises Tenancy Act due to inter play of theory of offer and acceptance of rent since May, 1967". This Court is of the view that the learned Trial Court was not correct in taking a view that there should be a separate agreement for proving the revival of the original lease. The question was whether the notice dated 17. 11. 1966 stood waived by the act of the plaintiff and consented to by the defendant. This Court is of the view that the learned Trial Court was not correct in taking a view that there should be a separate agreement for proving the revival of the original lease. The question was whether the notice dated 17. 11. 1966 stood waived by the act of the plaintiff and consented to by the defendant. Such consent may be an implied consent and as such there may not be an express agreement. Thus, it is essential to consider the conduct of the parties, at the material time, as a whole, for the purpose of ascertaining whether there was waiver or not, The learned Trial court proceeded on the basis that the lease stood terminated by the notice dated 17. 11. 1966 and that is the reason why it thought that it is necessary for a separate agreement to exist for revival of the original lease. If the learned trial Court had approached the issue from a different angle, that is, whether or not there was any waiver as contemplated under Section 113 of the Transfer of property Act, then, probably, it might not have been necessary to go into the question of proving an agreement for revival of the original lease. This is so, because if there was waiver of the notice, then the old lease continued, The learned Trial Court was also not correct in holding that "by virtue of the termination of the lease-hold tenancy of the defendant by notice dated 17. 11. 1966 the defendant was no longer a lease-hold tenant under the Transfer of Property act but a monthly tenant under the West Bengal Premises Tenancy Act due to interplay of theory of offer and acceptance of rent since May, 1967". The learned trial Court had earlier found that there is no document on record to prove that a new lease was created after the notice dated 17. 11. 1966. There is also no document on record to prove that a new tenancy under the West Bengal premises Tenancy Act, 1956 was created after the said notice dated 17. 11. 1966. Merely on the basis that there was an "inter play of theory of offer and acceptance of rent since May, 1967" it cannot be said that the defendant became a tenant under the West Bengal Premises Tenancy Act, 1956. 11. 1966. Merely on the basis that there was an "inter play of theory of offer and acceptance of rent since May, 1967" it cannot be said that the defendant became a tenant under the West Bengal Premises Tenancy Act, 1956. On the other hand, the continuance of the payment and acceptance of rent after the notice dated 17. 11. 1966 till the lease expired by efflux of time in July, 1980 is an acton the part of the plaintiff which shows that the plaintiff intended to treat the lease as subsisting and the defendant gave his implied consent to it. There is also nothing on record to show that there was any change in the terms of the lease after the issuance of the notice dated 17. 11. 1966. The plaintiff in the notice dated 07. 01. 1980 also treated the lease as subsisting. Thus, this Court finds that there , was a waiver of the said notice dated 17. 11. 1966. ( 22 ) THE learned Advocate for the defendant/appellant raised another point that neither the original plaintiff nor her husband was examined but the plaintiffs son who was 16 years of age at the time of execution of the lease deposed as P. W. 1 and as such presumption would arise that the plaintiff/ respondent's case is not correct. The learned Trial Court quoted the P. W. 1 as saying that he did not play any part in the execution of the lease deed but he was present and the learned Trial Court found that such evidence of P. W. 1 uncorroborated by that of any other witness cannot be relied upon. The learned advocate for the defendant/appellant cited a decision reported in AIR 1999 supreme Court 1441,vidhyadhar v. Mankikrao and Another. In this regard, reading the said report it would be clear that the facts of the said reported case were quite different. In the said reported case the plaintiff filed a suit against the defendant Nos. 1 and 2 for redemption of mortgage by conditional sale or, alternatively, for a decree for specific performance of contract for repurchase. The property in dispute in the said reported case was 4. 04 acres of lands of survey plot No. 15 the whole area of which was 16. 09 acres and except the land in dispute, that is 4. 1 and 2 for redemption of mortgage by conditional sale or, alternatively, for a decree for specific performance of contract for repurchase. The property in dispute in the said reported case was 4. 04 acres of lands of survey plot No. 15 the whole area of which was 16. 09 acres and except the land in dispute, that is 4. 04 acres of land, the entire land was in possession of the plaintiff. The defendant No. 2 in the said reported case was the owner of the whole plot No. 15 and he executed a document styled as "kararkharedi" in favour of the defendant No. 1 for a sum of Rs. 1500/- and delivered possession thereof to the defendant No. 1 and there was stipulation in the said document that if the entire amount of Rs. 1500/- was returned to the defendant No. 1 before a certain date, the property would be given back to the defendant No. 2. It appears that the land was subsequently transferred by the defendant No. 2 in favour of the plaintiff for a sum of Rs. 5,000/- by a registered sale deed. In the suit the defendant no. 2 admitted the whole claim of the plaintiff by filing a one-line written statement in the trial Court but the defendant No. 1 contested the suit and pleaded that the document in his favour was not a mortgage by conditional sale but was an out and out sale and since the amount of consideration had not been tendered within the stipulated time, the plaintiff could not claim reconveyance of the property in question. The defendant No. 2 even declined to cross-examine the plaintiff which showed that he had no interest in the litigation as he had already transferred the property in favour of the plaintiff. It was defendant No. 1 who contended that the sale deed, executed by the defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to the defendant No. 2. The defendant No. 1 further claimed that payment of Rs. 4,500/- to the defendant no. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by the defendant No. 1 as he did not enter into the witness box. 500/- were paid as sale consideration to the defendant No. 2. The defendant No. 1 further claimed that payment of Rs. 4,500/- to the defendant no. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by the defendant No. 1 as he did not enter into the witness box. He did not State the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. In such facts and situation the Hon'ble Supreme Court was pleased to hold that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side the presumption would be arise that the case set up by him is not correct. Therefore, it appears that the evidence of the defendant No. 1 in the said reported case was very vital and in the absence of such evidence the hon'ble Supreme Court was pleased to come to the conclusion as contained in the said reported case. But, the facts of the present case which this Court is now dealing with are quite different. There is no dispute about the fact that the lease deed was executed on 23. 06. 1959. The dispute is related to the time that comes after the issuance of the notice dated 17-11. 1966 and the conduct of the parties after the period mentioned in the said notice dated 17. 11 1966 expired. Even then, there is not much of dispute with regard to the basic facts as indicated above. The question is whether after the issuance of the said notice dated 17. 11. 1966, the conduct of the parties prove that there was waiver of the said notice dated 17. 11. 1966 and whether the defendant/appellant became a tenant under the West Bengal Premises Tenancy Act, 1956 after the issuance of the said notice dated 17. 11. 1966. This Court finds that the P. W. 1 who is the son and the constituted attorney of the plaintiff was quite competent to adduce evidence on behalf of the plaintiff. ( 23 ) IN view of the discussions made above, this Court finds that the said notice dated 17. 11. 11. 1966. This Court finds that the P. W. 1 who is the son and the constituted attorney of the plaintiff was quite competent to adduce evidence on behalf of the plaintiff. ( 23 ) IN view of the discussions made above, this Court finds that the said notice dated 17. 11. 1966 stood waived and the defendant/appellant did not become a tenant under the West Bengal Premises Tenancy Act, 1956. This court also finds that the learned First Appellate Court was not right in relying upon the evidence of the defendant/appellant before the Building Tribunal for the purpose of holding that there was a clear admission on the part of the defendant/appellant that he claimed to be a lease-hold tenant even 5 years after the notice to quit dated 17. 11. 1966. But this Court is also of the view that even though there is such error on the part of the learned First Appellate Court, there is no necessity to send the matter back on remand since, even without taking into consideration the so-called admission, if any, on the part of the defendant/appellant, this matter can be decided effectively on the basis of other materials-on-record as discussed above. ( 24 ) SINCE this Court is of the view that the said notice dated 17. 11. 1966 stood waived, the lease-stood determined by efflux of time and thus the plaintiff/ respondent is entitled to a decree for eviction and khas possession against the defendants/appellants in respect of the suit property. This second appeal is, accordingly, dismissed. There will, however, be no order as to costs.