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2020 DIGILAW 130 (AP)

Gude Ramaiah v. Abbaraju Venkata Subba Rao

2020-02-17

M.VENKATA RAMANA

body2020
ORDER : M. Venkata Ramana, J. 1. This civil revision petition is directed against the order of the Tenancy Appellate Tribunal-cum the Court of Principal District Judge, Ongole (for short, 'the appellate Tribunal') in ATA No. 1 of 2018 dated 28.8.2018. It was preferred against order of Special Officer, A.P. (A.A.) Tenancy Act-cum-Court of Junior Civil Judge, Parchur (for short, 'the tenancy Tribunal') dated 27.2.2018 in ATC No. 1 of 2008. 2. The tenants of land to an extent of Acs. 3-32 cents in S. No. 59/1A (old S. No. 59/1) of Koniki Village of Prakasam District are the revision petitioners. The respondents are landlords of this land. The tenants were directed to be evicted by the tenancy Tribunal and it was confirmed by the appellate Tribunal. Hence, this revision. 3. The petition schedule land was initially taken on lease by Sri Gude Ramaiah (1st petitioner). He died and his L.Rs. being appellants 2 to 5 were brought on record during the course of enquiry in the tenancy Tribunal. Similarly, the respondents 1 and 8 died, when the matter was pending before the tenancy Tribunal. The respondents 5 to 11 are the legal representatives of the 1st respondent and whereas the respondents 12 to 14 are the legal representatives of the 8th respondent. 4. The initial rent, according to the respondents, was Rs. 1500/- for the entire extent of the petition schedule land per annum and the lease was for a period of 15 years. It was an oral lease. Commercial crops like bengal gram, cotton, tobacco, chillies etc., were being raised in the petition schedule land and that the agreed rent was to be paid by the end of March every year. As per orders of this Court in CRP No. 5766 of 2003, which was preferred against the orders in ATA No. 27 of 2001 on the file of the appellate Tribunal at Ongole, which in turn was preferred against the orders in ATC No. 6 of 2000 of the tenancy Tribunal, fair rent was fixed at Rs. 4,500/- per annum and w.e.f. the year 2002-2003. 5. Referring to the above facts, the respondents claimed before the tenancy Tribunal that the 1st petitioner defaulted to pay the rent that made them to issue a notice on 21.7.2007 demanding to pay arrears with interest as well as to vacate the petition schedule land. 4,500/- per annum and w.e.f. the year 2002-2003. 5. Referring to the above facts, the respondents claimed before the tenancy Tribunal that the 1st petitioner defaulted to pay the rent that made them to issue a notice on 21.7.2007 demanding to pay arrears with interest as well as to vacate the petition schedule land. The deceased 1st petitioner got issued a reply on 3.8.2007 to the above notice according to the respondents setting up a false ground while sending demand drafts in respect of the alleged rent to the respondents, which was received under protest. Claiming that there was default in paying the rent, after the year 2003 including for the years 2007-2008, the respondents filed a petition for eviction making out a ground of default in payment of rent under Section 13 of A.P. (A.A.) Tenancy Act against the petitioners. 6. The deceased 1st respondent resisted the claim of the respondents denying that there was any default on his part to pay the rent. He specifically claimed that either he paid or deposited the rents within the time and when attempts were made by sending the rent to the respondents by money order, they were refused. He further contended that for the years 2002-2003 to 2006-2007, he had sent four D.Ds. on 1.8.2007, in all for Rs. 73,200/- and Rs. 14,850/-, similarly on 17.3.2008, for the rent towards the year 2007-2008, that were received. Thus contending that there was no default on his part in paying the rents and on account of the receipt of rents for the year 2007-2008 by D.Ds. without any protest, he claimed that he was never a willful defaulter in paying rents nor the respondents have any right to evict him from the petition schedule land. Exchange of notices was also admitted by the deceased 1st respondent. 7. The learned tenancy Tribunal held that rents were paid, as stated by the deceased 1st respondent and ultimately held that retention of rents, which was refused to be received by the deceased 1st respondent, without taking any steps to deposit such amount, amounted to default on his part in terms of Section 13(a) of the A.P. (A.A.) Tenancy Act. The contention on behalf of the petitioners that the conduct of the respondents amounted to waiver, was rejected and ultimately, eviction of the petitioners was directed. 8. The contention on behalf of the petitioners that the conduct of the respondents amounted to waiver, was rejected and ultimately, eviction of the petitioners was directed. 8. In the appeal, the findings of the tenancy Tribunal were confirmed. The learned appellate Court also followed the similar line in considering the case of the tenants as well as of the landlords holding that interference is not warranted, the appeal preferred by the tenants was dismissed. 9. Sri S.S. Bhatt, learned Counsel of the petitioners, strenuously contended that there was never any default on the part of the petitioners to pay or deposit the agreed rent and as determined by this Court in CRP and in the light of clear admission of PW 1, who is the 6th respondent in this respect, that the tenants were not due any amount towards rent even for the year 2007-2008, directing eviction from the petition schedule land, is uncalled for. It is further pointed out that receiving the rents, when sent by the petitioners, amounted to waiver and on such basis the eviction of the petitioners should be set aside. 10. Sri M.R. Srinivas, learned Counsel for the respondents, strenuously contended that the default on the part of the petitioners is well-established in this case and in the light of the material on record. When both the Courts below concurrently held against the tenants, who failed to follow Section 9 of the A.P. (A.A.) Tenancy Act, it is not necessary that the order directing eviction of the tenants be interfered with, in this revision petition. 11. Now, the following points arise for determination: (1) Whether the material on record establishes that there was default on the part of the petitioners to pay rent in respect of the petition schedule land as agreed or determined? (2) Whether the petitioners can raise a plea of waiver of the ground for eviction against the landlords in the facts and circumstances of the case? (3) Whether the petitioners (tenants) are liable to be evicted from the petition schedule land? (4) To what relief? Point No. 1: 12. The nature of tenancy among these parties with reference to the petition schedule land on specified rent per annum, which was enhanced to Rs. 4,500/- as per Ex. P19-order of this Court in CRP No. 5677 of 2003, dated 5.12.2006, is admitted. 13. (4) To what relief? Point No. 1: 12. The nature of tenancy among these parties with reference to the petition schedule land on specified rent per annum, which was enhanced to Rs. 4,500/- as per Ex. P19-order of this Court in CRP No. 5677 of 2003, dated 5.12.2006, is admitted. 13. Only ground on which the eviction of the petitioners is sought by the respondents, is default in payment of rent in terms of Section 13(a) of the A.P. (A.A.) Tenancy Act. 14. Section 13(a) of the above Act reads as under: 13. Termination of tenancy.-Notwithstanding anything contained in Sections 10, 11 and 12, no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the Special Officer and unless such cultivating tenant- (a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality; and in case the rent is payable in the form of a share in the produce, has failed to deliver the produce at the time of harvest; 15. In the judgment of the erstwhile High Court of Andhra Pradesh at Hyderabad in Dhanyamraju Jagannadha Rao and others v. Thummala Suryakrishna Murthy and others, 1998 (4) ALD 299 , it is held that this provision has three different limbs. In Paras 7, 8 and 9 of the above ruling it has been explained as under: "7. A careful reading of the Section shows that there are three limbs in 13(a) of the Act which can justify the eviction of tenant. The first limb requires the proof that there is a lease-deed in existence between the parties and that date is stipulated in the said lease deed. If such date is stipulated and even then if tenant fails to pay the rent within one month from such stipulated date, he incurs the liability of forfeiture of the tenancy..... 8. The first limb requires the proof that there is a lease-deed in existence between the parties and that date is stipulated in the said lease deed. If such date is stipulated and even then if tenant fails to pay the rent within one month from such stipulated date, he incurs the liability of forfeiture of the tenancy..... 8. As far as second limb is concerned, it states that the absence of such a stipulation in a lease deed the tenant is required to pay the rent within one month from the date on which the rent is due according to the usage of the locality. Therefore, for incurring forfeiture under this limb, it is necessary for the landlord to prove the condition required for terminating the tenancy...... 9........ It is stipulated in this part of Section 13(a) that whom the rent is payable in the form of share in the produce, the rent has to be delivered to the landlord within one month from the time when the harvesting is done....." 16. The burden to establish payment of rents, according to the contention of the respondents, is on the tenant. In this respect, the respondents relied on Pendyala Sudha Rani v. Basava Janakiramayya and others, 2009 (6) ALD 446 : 2010 (1) ALT 222 . In Para 9 of this ruling it is observed as under: "9. Once the tenancy is not disputed, and the landlord alleges that the tenant committed default in payment of rent, the burden squarely rests upon the tenant, to prove the payment thereof. The reason is that the landlord cannot be expected to prove a negative fact, stating that the rent was not paid. Proof, if, at all, would exist for payment, and not for non-payment......" 17. However, facts and circumstances of each case shall be considered to hold that the default was committed by the tenant upon establishing the fact that the landlords did not receive the rents as contracted or as agreed upon, within the stipulated time. Terms of Section 13(a) of the Act leave no manner of doubt in this respect to prove and establish that there was a conscious failure on the part of the tenant to pay the rent due by the agreed date and including within the period of one month grace period. Terms of Section 13(a) of the Act leave no manner of doubt in this respect to prove and establish that there was a conscious failure on the part of the tenant to pay the rent due by the agreed date and including within the period of one month grace period. This grace period can be reckoned from the language employed in Section 13(a) of the A.P. (A.A.) Tenancy Act on which the rent is agreed to be paid every year and it is also dependent on the usage of the locality. 18. Therefore, it cannot be stated in every case that the landlord is absolved of his initial burden in terms of Sections 101 and 102 of the Evidence Act that there was failure to pay the rent by the tenant. Subject to discharging such initial burden, it shifts on to the tenant to prove contra or otherwise. In the sense, payment of rent should be proved positively by the tenant in rebuttal to the initial burden discharged by the landlord. Therefore, it cannot be stated that in every application filed in terms of Section 13(a) of the A.P. (A.A.) Tenancy Act, if eviction of a tenant is sought on the ground of default to pay rent, the burden is automatically and invariably rests on the tenant. It has to be so considered particularly having regard to the object and purpose of this legislation, which primarily a welfare measure in favour of cultivating tenants and which provides for resulting in relations of landlord and cultivating tenants of agricultural lands. 19. This provision does not explain or describe the nature of default contemplated thereunder. Mere default per se without anything more cannot amount to willful default (which is usually employed in case of application of eviction relating to buildings under Rent Control Laws) and to order evidence of tenant. Sri S.S. Bhatt, learned Counsel for the petitioners, strenuously contended that every default under this Act cannot amount to willful default, an expression akin to the one used in the application of Section 10(2)(i) of A.P. Buildings (Lease, Rent and Eviction) Control Act and therefore, the burden rests on the landlords to make out such nature. Sri S.S. Bhatt, learned Counsel for the petitioners, strenuously contended that every default under this Act cannot amount to willful default, an expression akin to the one used in the application of Section 10(2)(i) of A.P. Buildings (Lease, Rent and Eviction) Control Act and therefore, the burden rests on the landlords to make out such nature. A parallel is sought to be drawn by the learned Counsel for the petitioners in this context placing reliance on Dakaya alias Dakaiah v. Anjani, AIR 1996 SC 383 and Vinukonda Venkata Ramana v. Mootha Venkateswara Rao and another, 2001 (6) ALD 27 (FB), of erstwhile High Court of Andhra Pradesh. 20. Sri MR. Srinivas, learned Counsel for the respondents, strenuously contended that in the light of what is stated in Section 13(a) of the A.P. (A.A.) Tenancy Act, particularly having regard to the grace period allowed for the tenant to remit the rent, default to pay rent is sufficient. It is also contended that a past-default can also be taken into consideration particularly, having regard to Section 9 of this Act, which directs interest on arrears of rent at 5-1/2% or on such other rate that may be fixed by the Government from time to time under Section 13 of the A.P. (A.A.) Agriculturist Relief Act, 1938. 21. In this regard, a default shall be so considered, which is careless, callous and contumacious in nature demonstrative of gross negligence and supine indifference. It is willful default. A simple default or failing to stand by time lines agreed upon to pay the rent, between the parties or the grace period sanctioned by the Act itself, referred to above, cannot amount to willful default upon a meaningful consideration of the term used in this provision indicating default. Against this back drop, the evidence placed by the parties in this case shall be considered. 22. The specific pleading of the respondents in their petition before the tenancy Tribunal was that the tenant had deposited the rents after long lapse of time into Court, when fair rent petition was pending in ATC No. 6 of 2000 and during pendency of ATA No. 27 of 2001. It was further averred that the tenant had not deposited any rent after the year 2003 i.e., after filing the earlier civil revision petition, and that he kept quiet without paying the rents every year regularly within time. It was further averred that the tenant had not deposited any rent after the year 2003 i.e., after filing the earlier civil revision petition, and that he kept quiet without paying the rents every year regularly within time. They further averred that during the year 2007-2008 the tenant did not pay the rent even by the date of presentation of the eviction petition. 23. At the enquiry, the 6th respondent deposed as PW 1. He deposed that the tenant failed to pay the rents regularly within the stipulated time and has committed willful default, referring to Ex. A2-notice got issued by them on 21.7.2017 to the tenant. He also referred to Ex. A3-reply notice dated 3.8.2007 by the 1st appellant in response thereto alongwith demand drafts raised in the name of himself, the respondents 2 to 4 for Rs. 36,600/- and Rs. 12,200/-. He further deposed that they received six demand drafts under protest. In consonance with his pleadings, he also deposed that the tenant had deposited the rents after long lapse of time, when the matter was pending for determination of fair rent and alleged that the tenant did not deposit any rent for the year 2003 i.e., after filing CRP No. 5766 of 2003, relating to fixation of fair rent proceedings. Thus he claimed that the tenant had sent rents by way of D.Ds. for the year 2007-2008 and 2008-2009 by way of D.Ds. and further claimed that the respondent failed to pay the rent during the pendency of the petition. 24. In cross-examination on behalf of the tenants, this witness stated admitting that the rent was Rs. 1500/- per month earlier and that it was enhanced to Rs. 4,500/- as per Ex. R19 order in CRP No. 5766 of 203. He also referred to demands made under Ex. A2 notice to which the tenant sent a reply under Ex. A3 enclosing four D.Ds. while stating that they had encashed these D.Ds. Later statements elicited in the cross-examination from this witness on behalf of the tenants (respondents) are desirable to extract hereunder for convenience. "On 1.8.2007 the respondent sent 4 D.Ds. For Rs. 73,200/-, through courier to our Counsel. We encashed the said D.Ds. On 17.3.2008 the respondent sent another 4 D.Ds. for Rs. 14,850/- towards the rent for the year 2007-2008 by registered post. We have received the said 4 D.Ds. and encashed the same. "On 1.8.2007 the respondent sent 4 D.Ds. For Rs. 73,200/-, through courier to our Counsel. We encashed the said D.Ds. On 17.3.2008 the respondent sent another 4 D.Ds. for Rs. 14,850/- towards the rent for the year 2007-2008 by registered post. We have received the said 4 D.Ds. and encashed the same. Every year the rent has to be paid by the end of March. It is true that an amount of Rs. 1500/- was deposited in ATC 6/2000 on 4.3.2001 by the respondent for the year 2000-2001 and we have withdrawn the same. In ATA 27/2001 the respondent deposited Rs. 2000/- on 6.2.2003 for the years 2001-2002 and 2002-2003 and we have withdrawn the said amount also. Prior to depositing the amount in ATA 27/2001, the respondent sent the rent to my father for the year 2001-2002 by way of money order dated 11.2.2002 and my father refused to receive the same. Similarly the respondent also sent money orders to petitioners 2 to 4 and they also refused to receive the same. Towards the rent for the year 2003-2004, on 10.2.2004 to my father and on 12.2.2004 to the petitioners 2 to 4, the respondent sent money orders, but they refused to receive the same. It is true on 7.2.2005 the respondent sent 4 money orders to my father and petitioners 2 to 4 for Rs. 3000/- for the years 2003-2004 and 2004-2005 and the same were refused. I do not know if the money orders sent by the respondent on 10.3.2006 by the respondent were refused. It is true that on 9.3.2007 the respondents sent money orders to my father and petitioners 2 to 4 for Rs. 6000/- for the rent from 2003-2004 to 2006-2007 and they refused the same. We received rents upto the year 2007-2008 and there is no default in payment of rent. After receiving the rent for 2007-2008 the present petition is filed" 25. Sri S.S. Bhatt, learned Counsel for the petitioners, basing on these statements in cross-examination of PW 1 contended that they are sufficient to hold that the eviction petition cannot lie, particularly when it is clearly established that there was no default in payment of rent by the date the eviction petition was instituted and particularly having regard to rent payable by the tenants to the landlords by the end of March every year. Thus it is contended that institution of this petition after receiving the rent for the year 2007-2008, itself is bad. 26. Sri MR. Srinivas, learned Counsel for respondents, contended that a stray admission of this witness that there is no default in payment of rent cannot be considered in isolation. Learned Counsel further contended that apart from the surrounding circumstances, the default committed by the tenants for different periods during pendency of the petition and when the petition was pending for determination of fair rent shall also be considered. 27. The statements so elicited from this witness in cross-examination drive the last nail into the contention of the respondents and to hold that the eviction of the tenants cannot lie on the ground set up by the respondents. The statement of this witness, underlined above, has its own impact and significance. It is not an accidental slip, which culminated into a statement of such nature as an admission favourable to the tenants. When this statement is considered alongwith the payments made periodically by the tenants, it leaves no manner of doubt that by the date of institution of the tenancy petition, there was no default of such nature, described above and to fall within the category of the nature of default intended by Section 13(a) of the Act. 28. Refusal to receive the rent when sent by money orders, the details of which are more clearly and categorically stated in Para (G) of the counter, before the tenancy Tribunal, by the tenants, remained unexplained by the respondents. They could have received these amounts under protest. Refusal to receive the money orders pertaining to the rents clearly reflected the conduct of the respondents. 29. It shall not be lost sight of the fact that there was an attempt to dispose of the petition schedule land by the respondents to third parties. It necessitated the deceased 1st petitioner to institute ATC No. 15 of 1995 for grant of permanent injunction restraining the respondents from interfering with his possession and enjoyment of the petition schedule land including not to alienate the same unless and until the 1st respondent was evicted by due process of law. This fact was also admitted by the 6th respondent as PW 1 in cross-examination. This fact was also admitted by the 6th respondent as PW 1 in cross-examination. Thus, the purpose of institution of the eviction petition against the petitioners, to get them evicted was for such purpose of selling away this land. In that process, it is apparent that the respondents tried to create a contrived situation as if there was default in paying rents by the petitioners taking advantage of their own willful act of refusal to receive the money orders, when rent was offered. Thus, the whole attempt apparently was designed in such a manner to make out artificially, a situation of default in payment of rents to evict the petitioners. 30. The tenancy Tribunal as well as the appellate Tribunal were impressed by the fact that the tenants did not take any further steps to deposit the rents, even though there was refusal to receive money orders and observed that the tenants could have deposited them. A reference is also made in the order of the tenancy Tribunal to Section 9 of the A.P. (A.A.) Tenancy Act. Thus, it was observed by both the Courts that the petitioners retained the rent and whatever received were held as 'user charges' by the tenancy Tribunal. These observations are uncalled for and they are against the material on record. The statements of PW 1 referred to above when cut at the root of their case, no effort or attempt can be made to sustain the claim of the respondents for eviction of the petitioners on such baseless grounds without any foundation. 31. Thus, the claim of default in payment of rents in the light of facts of the case, cannot stand. 32. Thus, this point is answered. Point No. 2: 33. The statements of PW 1 and PW 2 referred to supra do indicate that they accepted the rents whenever offered without demur. Contentions are advanced on behalf of the petitioners that such conduct amounted to waiver of their right to seek their eviction from the petition schedule lands. In support of such contention, on behalf of the petitioners, reliance is placed on Adapa Abbayi v. Reddipanhulu Choultry, AIR 1974 AP 139 . The effect of waiver in terms of Section 112 of Transfer of Property Act vis-à-vis Section 13 of the A.P. (A.A.) Tenancy Act was considered in this ruling. In support of such contention, on behalf of the petitioners, reliance is placed on Adapa Abbayi v. Reddipanhulu Choultry, AIR 1974 AP 139 . The effect of waiver in terms of Section 112 of Transfer of Property Act vis-à-vis Section 13 of the A.P. (A.A.) Tenancy Act was considered in this ruling. In Paras 58 and 59 of this ruling in this context it is observed as under: "58. What follows therefore is that although the provisions of the Transfer of Property Act in terms may not apply but the equitable principles underlying them apply to cases coming under the Act. The contention that the Act is a special enactment and therefore the said principles would have no relevance is unacceptable. If the provisions of special enactment expressly or by necessary implication abrogate the said principles, that is another matter altogether. But there is no such provision in the Act, far less contained in Section 13 or 17 of the Act. The learned Advocate for the landlord could not show us any provision which would indicate that the principle of waiver on acceptance of the rent after the grace period has not been made applicable. Merely because there is no provision parallel to Section 112, Transfer of Properly Act or the Act makes no reference to waiver, we fail to see how the equitable principle can be said to have become in applicable to cases under the special Act. In fact this artificial distinction in applying the principles of waiver between general law and special law is not based on any cogent reasons. As stated earlier, if the special law excludes the application, then and in that case alone the said principle would not apply because the law would prevail over equities. In the absence of any such provision, the equitable doctrine would apply even to special law. It is true that if the tenant wants to take advantage of protection provided to him by the Act, he must comply with the provisions of the Act. If he fails to pay the rent even within the grace period allowed, he becomes a defaulter and is liable to be evicted. It is true that if the tenant wants to take advantage of protection provided to him by the Act, he must comply with the provisions of the Act. If he fails to pay the rent even within the grace period allowed, he becomes a defaulter and is liable to be evicted. It if, however, beyond our comprehension as to how from the obligation of the tenant it can be inferred that the landlord cannot waive his right to file a petition for eviction under Section 13 of the Act or that the tenant's right to plead equitable defence of waiver is in any manner affected. 59. What follows therefore is that whether Section 13 of the Act is mandatory or not or whether it should be construed strictly or liberally and even if the provisions of Chapter-V of the Transfer of Property Act in terms may not apply, since there are no indications contra anywhere in the Act, the equitable principle of waiver would apply to the cases arising under the Act. There is no general policy in the matter of landlord asking for eviction under Section 13. It is evidence that a landlord who has a benefit given to him under Section 13 of the Act may waive it if he thinks fit. If he receives the rent with knowledge of breach, the legal consequences flow that he had waived his right to take action under Section 13 and the equitable defence of waiver would be available to the tenant in such cases." 34. The expression 'has failed to pay' in Section 13(a) of the A.P. (A.A.) Tenancy Act is explained in Para 61 of this ruling as under: "61. The words "has failed to pay" clearly denote that the tenant must have continued to have failed to pay rent. In other words, there must be a subsisting liability to pay the rent on the date of the petition. The words are not "had failed to pay" which may have indicated that even if he had failed to pay the rent due but has paid it subsequently, the cause of action once arisen can be taken advantage of by the landlord. It will make a mockery of Section 13 if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant. It will make a mockery of Section 13 if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant. The absurdity of such a conclusion become more patent when, as we have held, the principle of waiver applies to such a case. The landlord cannot waive his right of action and at the same time institute the action on the ground that there was once a default which had given him a right to sue." 35. Basing on the facts and circumstances, in Para 86 of this ruling, when there was proof that the rents were accepted by the landlords subsequent to the default and when there were no arrears due from the tenant on the date when the eviction petition was filed by the landlord, the following observations are recorded: "86. The Tahsildar found that the rents were accepted by the landlord subsequent to the default and that there were no arrears due from the tenant on the day when the eviction petition was filed by the landlord. We are satisfied that although the case set up by the tenant has not been fully established, even then the landlord accepted the rent for all the four years admittedly subsequent to the grace period within which the rent ought to have been paid under Section 13 of the Act. The landlord knew well that the tenant has committed a default and has failed to pay the rent within the prescribed time. Even then he accepted the rent and continued the tenant in possession on the same terms and conditions. The old tenancy thus, as a result of the receipt of rent, continued. The legal consequence of so receiving the rent for all the four years and particularly for the last year is that the landlord must be deemed to have waived and in fact waived his right to determine the tenancy and evict the tenant by filing the application to the Tahsildar under Section 13(a) of the Act." 36. The legal consequence of so receiving the rent for all the four years and particularly for the last year is that the landlord must be deemed to have waived and in fact waived his right to determine the tenancy and evict the tenant by filing the application to the Tahsildar under Section 13(a) of the Act." 36. In the light of the proof offered by the petitioners basing on the very statement of PW 1 that the rent due for the years 2007-2008 was paid and that there were no arrears, which was the situation on the date of institution of the eviction petition, in view of the above observations in this ruling, which is a binding authority, it leaves no manner of doubt that the petition by the respondents before the tenancy Tribunal had no foundation or basis. Unfortunately, these vital circumstances were clearly overlooked by the Courts below making out such grounds, which did not have any foundation and directed eviction of the tenants. 37. The averments in the counter by the petitioners in the tenancy Tribunal laid the foundation, setting out such facts to raise a plea of waiver. However, it was not specifically pleaded. Nonetheless, in the presence of such foundational facts averred in the counter when the evidence on record stands to support such averments, the contention advanced by the petitioners shall be accepted in this respect. The conduct of the respondents in the given facts and circumstances, clearly amounted to waiver of their claim. 38. Thus, this point is answered. Point No. 3: 39. In view of the findings on Points 1 and 2, it is manifest that there is no justification to direct eviction of the petitioners from the petition schedule land on the grounds urged by the respondents in the eviction petition. There is manifest error committed by both the Courts below in appreciation of the material on record properly and when the result is an illegal eviction, this Court under Article 227 of the Constitution of India shall interfere. 40. Therefore, the orders of the tenancy Tribunal as well as appellate Tribunal shall be set aside. This civil revision petition has to be allowed. 41. Thus, this point is answered. Point No. 4: 42. 40. Therefore, the orders of the tenancy Tribunal as well as appellate Tribunal shall be set aside. This civil revision petition has to be allowed. 41. Thus, this point is answered. Point No. 4: 42. In the result, the civil revision petition is allowed setting aside the orders dated 28.8.2018 in ATA No. 1 of 2018 of the appellate Tribunal as well as the orders dated 27.2.2018 in ATC No. 1 of 2008 of the tenancy Tribunal. Consequently, ATC No. 1 of 2008 stands dismissed. There shall be no order as to costs. 43. As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.