Judgment S.B. Sinha, J. All these three appeals involving common question of law and fact and being between the same parties were directed to be heard analogously. There appeals were, therefore, heard analogously and are belong disposed of by this common judgment. 2. In all these second appeals, the defendants who were the tenants under the plaintiff-respondent are appellants. The plaintiff-respondent filed three different suits for eviction in respect of three different premises. The defendants were tenants under the plaintiff in respect if two house premises and a piece of vacant land. It is admitted that so far as the vacant land is concerned, the same shall not be governed by the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, but so for as other tenanted premises are concerned, the same would be governed thereby. 3. Before proceeding to consider the points involved in such of there appeals, the facts of each case, in brief, may be noted. 3(A). Second Appeal No. 96 of 1981® : This appeal arises cut of a judgment and decree dated the 30th June, 1981passed by Shri Ram Kishore Singh, 6th Additional Judicial Commissioner, Ranchi, in Title Appeal No. 88/41 of 1976/1980 whereby and whereunder the learned appellate court affirmed the judgment and decree dated the 5th May, 1976, passed by Shri Hirdaya Narain, Additional Subordinate Judge, Ranchi, Title Suit No. 50 of 1974. In the said suit, the plaintiff prayer for a decree for a sum of Rs.2270.01 by way of arrears of rent in respect of the premises in suit. The defendant was admittedly a monthly tenant on a rent of Rs.133.50 per month. In the said suit the ground for eviction as alleged by the plaintiff in the plaint was that the defendant neither validly tendered nor paid the rent from September, 1972, and further committed a beach of tenancy by demolishing a part of the boundary wall of the southern passage and by opening a door by connecting a building to one Anisur Rahman with the suit premises. It was further alleged that she required the suit premises bona fide for her personal occupation. The plaintiff further alleged that a notice under section 106 of the Transfer of property Act, was also served on the defendant. 4. It was further alleged that she required the suit premises bona fide for her personal occupation. The plaintiff further alleged that a notice under section 106 of the Transfer of property Act, was also served on the defendant. 4. According to the defendant, the plaintiff had been refusing to accept the rent and as such the rent was being remitted by money-order. The defendant further denied that it had demolished boundary wall of the southern passage or connected the same with the building of Anisur Rahman. The defendant asserted that the boundary wall of the southern passage was never complete and hence, the question of demolishing the same did not arise. It was further averred that the door in question is the ancestral door of Anisur Rahman existing for a long time. The defendant further stated that plaintiff had several houses in the town of Ranchi and she did not require the said premises for her own use and occupation as alleged. 5. The trial court decreed the suit upon having come to a conclusion that the defendant was a defendant was a defaulter and had committed a breach of the tenancy by demolishing a portion of the wall as alleged by the plaintiff. It however negatived the claim of personal and bona fide requirement in respect of the suit premises by the plaintiff. 6. The learned lower appellate court in appeal concurred with the finding of the learned trial court. The learned lower appellate court held that the defendant had been remitting the rent in respect of the three tenanted premises together and not separately although D.W. 6 in para 6 of his deposition categorically stated that he had tendered the rent of the three premises separately on earlier occasions to the plaintiff. The learned lower appellate court further came to the conclusion that the joint remittance of the vacant land was done with an ulterior motive to compel the plaintiff to recognize him as a month to month tenant in respect in respect of the leases hold premises, the term where of admittedly expired on the 10th October, 1973. The learned lower appellate court further found that the defendant had committed a breach of the tenancy by breaking a portion of the southern wall. The learned lower appellate court further found that the defendant had committed a breach of the tenancy by breaking a portion of the southern wall. In this appeal, an application for adducing additional evidence for adducing additional evidence under Order 41 Rule 27 of the Civil Procedure Code has been filed by the appellants. By an order dated the 5th January 1983 the said application was directed to be considered at the time of hearing of this appeal itself. In the said application under Order 41, Rule 27 of the Civil Procedure Code, the appellant inter alia contended that the plaintiff had not alleged in the plaint that the boundary wall of southern passage was a part of the tenancy and in that view of the matter the tenancy and in that view of the matter the question of the appellant committing a breach of tenancy by bricking a petition of the said wall did not arise. By reason of the said application, therefore the appellant intended to show by producing a sketch map that the southern wall in question was not a part of the tenanted premises. 7. This court, by an order dated the 13th August, 1981 while admitting this appeal formulated the following substantial question of law :- (1) Whether Joint remittance of the total rent for thee separate tenancies under the same landlord in prohibited under section 16(1) of the Bihar Buildings (Lease, Rent Eviction) Control Act, 1977 and constitute default ? (2) Whether opening of deer in the wall of the adjacent building of another person constituted breach of tenancy in respect of the suit premises ? Second Appeal No. 101 of 1981 ® 8. This appeal arises out of a judgment and decree dated the 30th June, 1981 passed by Shri Ram Kishore Singh, 6th Additional Judicial Commissioner, Ranchi in Title Appeal No. 89/27 of 1976/1980 where under the said learned court affirmed the judgment and decree dated the 5th May, 1976 passed by shri Hirdaya Narayan, Additional Subordinate Judge, Ranchi decreeing the plaintiffs suit. In the said suit, the plaintiff prayed for a decree for ajactment of the defendant as also for a decree of a sum of Rs.20/- as arrears of rent and damages. In the said suit, the plaintiff prayed for a decree for ajactment of the defendant as also for a decree of a sum of Rs.20/- as arrears of rent and damages. The suit land in this case is a parti land in respect where of a registered deed of lease for a period of ten years was executed, being from 11.10.1963 to 10.10.1973. The stipulated monthly rent in respect of the said lease hold land was Rs. 40/-. The Plaintiff filed the aforementioned suit alleging in the plaint there of that the defendant had neither validly tendered nor paid the rent from September 1972 to October 1973. The plaintiff served a notice upon the defendant as contemplated under section 106 of the Transfer of property Act, by registered pest on the 1st December 1973, determining the tenancy on the expiry of the determining the tenancy on the expiry of the midnight of the 31st December 1972, and calling upon the defendant to deliver vacant possession on the 1st January 1974. In the said suit, the plaintiff claimed a sum of Rs.560/- as arrears of rent and a sum of Rs.160/- by way damages. 9. In the said suit the defendant inter alia alleged that the rent in respect of September 1972, up to 10.10.1973 were tendered by the postal money-order which was refused by the plaintiff. The defendant also alleged that after the expiry of the period of the lease he has become a monthly tenant and has been continuing to remit the monthly rent by money-order. The defendant further denied the service of the notice under section 106 of the Transfer of property Act. It has further been assessed the defendant in the written statement that it had raised substantial structure over the leased properties with due notice and knowledge of the plaintiff by spending a sum of Rs.10,000/- and, as such the plaintiff was estopped from making any claim of ejectment against the defendant. 10. The learned trial court decreed the suit of the plaintiff. Before the learned lower appellate court issues Nos. 2, 3 and 4 involved in the suit were pressed which read as follows :- “…….. ……… …….. (ii) Is the suit as framed maintainable ? (iii) Was notice under section 106 T.P. Act, necessary and was is served on the defendant? The learned trial court decreed the suit of the plaintiff. Before the learned lower appellate court issues Nos. 2, 3 and 4 involved in the suit were pressed which read as follows :- “…….. ……… …….. (ii) Is the suit as framed maintainable ? (iii) Was notice under section 106 T.P. Act, necessary and was is served on the defendant? (iv) Is the defendant liable for ejectment and to pay to the plaintiff the arrears of rent and damages as claimed ?” 11. Before the learned lower appellate court it was submitted that the learned trial court had not considered the plea of estoppel as against the plaintiff which contention was nagatived by the learned lower appellate court. The learned lower appellate court held that the purported tender of the rent by the appellant was not a valid tender and further held that there was no necessity of service of any notice under section 106 of the Transfer of property Act. The learned lower appellate court further held that the defendant out of his own free will raised certain structures for his business purposes and there was nothing to show that the Plaintiff had even giving her consent that the defendant would continue to occupy the suit premises after the expiry of the period of the lease. 12. In this appeal, by an order dared the 20th August, 1981 the following substantial questions of low were formulated :- “(1) Whether the lower appellate court erred in severing the finding of holding over of the appellant as month to month tenant in respect of the suit premises and in saying that notice under section 106 of the Transfer of Property Act, was not necessary ? (2) Whether the lower appellate court erred in not applying the principle of estoppel in respect of construction over the suit premises ? (3) Whether the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977, would apply to the suit premises and whether the appellant could be held to be defaulter ? Second Appeal No. 176 of 1980 ® 13. This appeal arises out of a judgment and decree dated the 3rd July 1980, passed by Shri Someshwar Nath Pathak, Additional Judicial Commissioner, Ranchi in Title Appeal No. 92/5 of 1979/1980 affirming that of Shri B.P. Sinha Muncif Ranchi dated 5th May 1979, in Title Suit No. 49 of 1974. Second Appeal No. 176 of 1980 ® 13. This appeal arises out of a judgment and decree dated the 3rd July 1980, passed by Shri Someshwar Nath Pathak, Additional Judicial Commissioner, Ranchi in Title Appeal No. 92/5 of 1979/1980 affirming that of Shri B.P. Sinha Muncif Ranchi dated 5th May 1979, in Title Suit No. 49 of 1974. The aforesaid suit was filed by the plaintiff respondent against the defendant-appellant for eviction of the defendant in respect of Municipal Holding No.348, M-S Plot No. 670 in Ward No. III. According to the plaintiff respondent, the defendant- appellant was a tenant in respect of two rooms at the back side of Sudarsan Hotel on a monthly rental of Rs.20/- per month. The plaintiff alleged that the defendant became defaulter in payment of the rent from September 1972, till the filing that the suit. The plaintiff further alleged that the suit premises is bona fide required for her personal use and occupation. The plaintiff also alleged beach of the terms of the tenancy on the part of the defendant as it allegedly demolished the southern boundary wall and by opening a door in the same. 14. The plaintiff in the aforementioned suit apart from a decree for eviction also claimed a sum of Rs.340/- by way of arrears of rent. 15. The defendant in its written statement denied and disputed that it defaulted in payment of the stipulated monthly rent. The defendant stated that as the Karpordaj of the plaintiff refused to accept the rent the same was being remitted by money-order along with rent of two other tenancies held by it under the plaintiff. All such money-orders have been refused by the plaintiff. The defendant further denied the disputed claim of the plaintiffs personal use and occupation in respect of the tenanted premises and further denied and disputed that beach in the conditions of the tenancy as alleged in the conditions of the tenancy as alleged in the plaint has been committed by it. The defendant stated that no boundary wall was existing on the southern passage of the said premises nor any damage or demolition thereof has been caused by the defendant. It was further alleged that no door connecting Anisur Rahmans building was opened by it rather the door existed there form before. 16. The defendant stated that no boundary wall was existing on the southern passage of the said premises nor any damage or demolition thereof has been caused by the defendant. It was further alleged that no door connecting Anisur Rahmans building was opened by it rather the door existed there form before. 16. The learned trial court decreed the plaintiffs suit on the ground of default but negatived the claims and contentions of the plaintiff on other issues. While granting a decree for eviction on the ground of default it held that remittal of rent by money-order along with the rent of two other premises by money-order did not constitute a valid tender. In this connection the trial court held as follows :- “On perusal of the Ext. 3 it also transpires that the defendant remitted the rent in the time to the plaintiff for the suit premises along with the rent for the other premises but the learned lawyer appearing on behalf of the plaintiff has argued that as the rent if these tenanted houses was sent by one money-order the plaintiff referred to accept it on the ground that if he would have accepted the rent of all the three tenanted house for which the three separate eviction suit were going on there would have been adverse effect on the other eviction suit no. 50/74 and 51/74 which was filed by the plaintiff against the defendant. The learned lawyer appearing on behalf of the plaintiff has also said that as the rent of three separate tenanted houses under the defendant was sent by one money-order by the plaintiff it was not obligatory on the part of the plaintiff to accept it as by accepting rent by one money-order for three tenanted houses there would have been averse effect on T.S. No. 50/74, 51/74 which were filed by the same plaintiff. It was also argued that if the defendant would have rent for the suit premises separately through money-order then the plaintiff was under the obligation to accept it but as the rent of this suit premises was not sent through money-order separately the plaintiff has validly refused it. In my opinion there is some force in the contention of the plaintiff that as the rent of the suit premises was not separately sent it was not obligatory to the plaintiff to accept it. In my opinion there is some force in the contention of the plaintiff that as the rent of the suit premises was not separately sent it was not obligatory to the plaintiff to accept it. If the rent for the suit premises would have been sent by the defendant separately by money-order then the defendant would have not called a defaulter one because it is clear that the rent was sent in time by the defendant but by sending the rent of three Tenanted houses by one money-order that defendant has made himself a defaulter one and those he is liable to be evicted from the suit premises.” 17. The lower appellate court however reversed the aforementioned finding of the trial court by holding that such a tender was valid but affirmed the decree passed by the learned trial court on the ground that admittedly the plaintiff did not remit the rent for a particular current month with all the arrears of the previous months as has been held by this Court in the case respect in AIR 1978 Patna 292. The learned lower appellate court, therefore, held that on that ground alone the rent in respect of the suit premises. 18. By an order dated the 28th January 1981, this Court at the time of admission of this appeal formulated the following substantial question of law :- “Whether the court below erred in bolding that the defendant-appellant was a defaulter and liable to be evicted ?” 19. It, therefore appears that the main points which are involved in all three appeals are as followed :- (a) Whether the joint remittance of the total rent for three separate tenancies under the same landlord is permissible in terms of section 16(1) of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977,equivalent to section 19(1) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 ? (b) Whether the defendant was a wilful defaulter and, thus was liable to be evicted although he remitted the rent for three different tenancies by one money-order in view of the fact that the Landlord and the tenant in respect of all the tenancies were the same ? 20. (b) Whether the defendant was a wilful defaulter and, thus was liable to be evicted although he remitted the rent for three different tenancies by one money-order in view of the fact that the Landlord and the tenant in respect of all the tenancies were the same ? 20. It further appears that in second Appeal No. 96 of 1981 ®, an additional question arises for consideration which is as follows :- © Whether the opening of the a door on the wall of an adjacent building to another person constitute breach of tenancy in respect of suit premises ? It may be mentioned that in respect of the premises involved in second Appeal No. 176 of 1980 ®, this question has been answered in favour of the appellant by the learned trial court as well as the lower appellate court. In second Appeal No. 101 of 1981 ®, a further question arises for consideration :- (d) Whether the lower appellate court erred in reversing the finding of the trial court in respect of the holding over of the tenancy by the appellant as a month to month tenant in respect of the suit premises and whether issuance of a notice under section 106 of the Transfer of property Act, was necessary ? The learned council for the parties addressed me at great length on the aforementioned questions. 21. At this juncture, however it may be mentioned that Mr. N.K. Prasad, appearing for the appellant while addressing me in respect of Section Appeal No. 176 of 1980 ® submitted that the ground upon which the lower appellate court passed the decree for eviction by coming to the conclusion that the defendant was a defaulter in respect of the suit premises being on the basis of a decision of a Division Bench of this Court reported in Rajendra Mohan Ghosh Vs. Smt. Kaushalia Devi which decision having been overruled by a Full Bench of this Court in the case of Raj Kumar Prasad Vs. Uchit Narain the said appeal should be allowed on this ground alone. 22. Smt. Kaushalia Devi which decision having been overruled by a Full Bench of this Court in the case of Raj Kumar Prasad Vs. Uchit Narain the said appeal should be allowed on this ground alone. 22. However as noticed here in before, the common defence in respect of default in payment of rent of the three aforementioned suits of the defendant appellant was that rent in respect of all the tenancies was jointly being remitted by one money-order and in the view of the matter in my opinion the question as to whether such a remittance is valid in law or not must be considered independent of the aforesaid finding. Re. Question (a) & (b) 23. It is admitted that whether the tenanted premises involved in Second Appeal No. 96 of 1981 ®, and Section Appeal No. 176 of 1980 ® comprised of buildings, the tenancy involved in Second Appeal No. 101 of 1981 ® was in respect of a vacant land. It is also admitted that tenancy involved in Second Appeal No. 101 of 1981 ® was created by reason of a registered deed of lease dated the 11th October 1973, for a period of ten years and the suit was instituted by the landlady inter alia on the ground of the expiry of the tenancy. 24. It has been admitted at the bar that in this view of the matter while the two suits for eviction giving rise to Section Appeal No. 96 of 1981 ® and Section Appeal No. 176 of 1980 ® would be governed under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977 (hereinafter referred to as the said Act) the suit giving rise to second Appeal No. 101 of 1981 ® would be governed under the Transfer of property Act. 25. Mr. N.K. Prasad, learned council for the appellant in all the appeals submitted that admittedly the plaintiff-respondent refused to accept the rent remitted by the defendant-appellant by money-order. 25. Mr. N.K. Prasad, learned council for the appellant in all the appeals submitted that admittedly the plaintiff-respondent refused to accept the rent remitted by the defendant-appellant by money-order. The learned submitted that there is absolutely no whisper in any of the plaints of the three suits as to why the plaintiff refused to accept the said tender although before the courts below it was one of the points urged i.e. if the plaintiff-respondents accepted the said amount, it would amount to acceptance of the rent in respect of the vacant land also and the same right have given rise to a defence in favour of the defendant that by such acceptance of rent the appellant has become a holding over in respect of the said tenancy as contemplated under Section 116 of the Transfer of property Act. While criticizing the judgment involved in Second Appeal No. 96 of 1981 ®, the learned council submitted that the rent was remitted even during the period of subsistence of the lease and in this view appellate court to the aforementioned effect was unwarranted. The learned council further submitted that for the purpose of enforcing the right of the purpose of enforcing the right of a tenant conferred upon him by reason of section 16 of the said Act, it was not necessary for the tenant to tender the said amount earlier and get it refused to be accepted by the landlord. 26. In this connection, the learned council has referred to a recent decision, the learned council has referred to a recent decision of this Court in the case of Ram Lal alias Ganesh Shankar Vidyarti. The learned council further submitted that in any event in terms of the provisions contained in section 12(1)(d) of the said Act, which empowers the court to pass a decree for eviction on the ground of default must be a willful default and as, in the instant case, the defendant-appellant had remitted the monthly rent in respect of all the three premises by money-order there cannot be any doubt that the appellant has not committed any willful default. In such a situation, according to the learned council no decree for eviction could have been passed as against the appellants. 27. The learned council, in this connection has relied upon a recent decision of the Supreme Court in the case of Gowali Charan Vs. In such a situation, according to the learned council no decree for eviction could have been passed as against the appellants. 27. The learned council, in this connection has relied upon a recent decision of the Supreme Court in the case of Gowali Charan Vs. Surendra Kumar Khadani and others. 28. Mr. Debi Prasad, the learned council appearing on behalf of the plaintiff-respondent, on the other hand, submitted that for the purpose of granting a decree in terms of the provisions of the said Act, default in payment of rent would be committed if the tenant dose not lawfully tender the amount of the rent in the manner as provided for in the said Act. The learned council submitted that, as in the instant case, the defendant-appellant admittedly sent the rent in respect of three different premises jointly by reason of one money-order, the same cannot amount to a valid remittance in terms of section 16 of the said Act, and as such the learned courts below have rightly come to the conclusion that the appellant was a defaulter and, thus was liable to be evicted from the suit premises. Section 16(1) of the said Act, reads as follows :- “16(1) When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building the tenant in respect of any subsequent rent which become due in respect of such building by postal money-order to the landlord.” 29. Before embarking on the discussion on the aforementioned subject, it is relevant to note section 12(1)(b) of the said Act, which reads as follows :- “12(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the Industrial Disputes Act, 1947 (Act XIV if 1947), and to those of section 15, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the court on one or more of the following grounds :- (d) Where the amount of two payable by the tenant due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contrast, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16” 30. From a perusal of the aforesaid provisions, it is therefore obvious that in order to successfully resist the claim of eviction on the ground of default in payment of rent, in a suit filed by the landlord it must be shown that the rent is in arrears as the tenant has not paid the said rent within the time fixed by the contract or has not validity remitted or deposited the rent in terms of section 16 of the said Act. 31. Form a plain reading of section 16 of the said Act, it is evident that an initial refusal by the landlord of the rent tendered by the defendant is sire qua non for invoking the provisions of section 16 of the said Act. However it is not necessary for the tenant as has been held in various decisions of this Court as also the Supreme Court which have been considered in Ram Takal Modi’s case (Supra) that for continuous remittance of rent by money-order for each subsequent month the same may not be preceded by a valid tender by the tenant and the refusal thereof by the landlord. 32. In Ram Tahal Modi’s case (Supra), S. Roy, J., speaking for the Division Bench, held as follows:- “19. In Raj Kumar Vs. Uchit Narain AIR 1980 Patna 242 : 1980 PLJR 195 a Full Bench of this Court held (page 249 of the report) that when section 13(1) speaks of remittance of rent by postal money-order to the landlord on refusal on the part of the landlord to accept such rent, the law clearly envisages two positions. If the tenant apprehends that for some ulterior the landlord would refuse to accept the rent for the purpose of making the tenant a defaulter within the meaning of the Rent Act, he may well remit such by postal order. They would make the remittance a valid payment within the meaning of section 11(1)(d)…….“In Mrs. Veena Rani Vs. Mrs. Ishrati Amanullah : AIR 1985 Patna 207 : 1985 PLJR 390 a Division Bench of this Court in paragraph – 6 of the judgment following Raj Kumar (Supra) held that a tenant may send rent by money-order although there has been no refusal by the landlord. In Bharat Road Ways Vs. Veena Rani Vs. Mrs. Ishrati Amanullah : AIR 1985 Patna 207 : 1985 PLJR 390 a Division Bench of this Court in paragraph – 6 of the judgment following Raj Kumar (Supra) held that a tenant may send rent by money-order although there has been no refusal by the landlord. In Bharat Road Ways Vs. Shailendra Kumar Birla : 1984 BBCJ (SC) 103 : 1984 PLJR (SC) 47, decision of a learned Single Judge between the same parties was challenged. The judgment of the learned Single Judge is reported in 1984 BBCJ 97 : 1984 PLJR(NOC) 49. In that case the rent for January 1976 was sent by tenant by money-order on 3.2.1976 which was refused by the landlord. Rent for February 1976 sent by money-order was also refused. It was held by the learned Single Judge that to take advantage of section 19of the Rent Act, (which was equivalent to section 16 of the 1977 Act) the tenant was required to remit the rent by money-order for the month of January 1976 again the remittance by money order on 3.2.1976 being ‘tender’ and as that was not done the continued remittance of rent by money-order was not valid Consequently it was held that tenant was a defaulter. The Supreme Court held that the finding of the learned Single Judge with regard to default in paying the rent was not sustainable in low and it was set aside.” 33. This decision and other decisions appear to have proceeded on the basis that the tender of rent by money-order is itself a valid tender, in the event the tenant apprehends that for some ulterior motive the landlord could refuse to accept the rent. But otherwise prior tender and refusal of rent is a condition precedent for invoking the provision contained in Section 16 of the said Act. See paragraph 13 of Rajkumar’s case (Supra). Reference is this connection may also be made in Sadanand Das Vs. Md. Hussain and Ram Sewak Vs. Munna Lal. However, this question need not deter be further in view of the fact that the learned courts below have concurrently found that the appellant had been remitting monthly rent in respect of three Premises by one money-order. Reference is this connection may also be made in Sadanand Das Vs. Md. Hussain and Ram Sewak Vs. Munna Lal. However, this question need not deter be further in view of the fact that the learned courts below have concurrently found that the appellant had been remitting monthly rent in respect of three Premises by one money-order. The question, therefore which arises for consideration is whether such a tender on the part of the defendant-appellant would be valid either within the meaning of section 12(1)(d) or section 16 of the said Act, ? In my considered opinion, the same would not constitute a valid tender. 34. From the scheme and object of the said Act, it is evident that section 12(1)(d) or section 16 thereof apply respect of one tenancy. 35. However, in the instant case, as noticed herein before, the tenancies were different and at least one tenancy was not governed under the provisions of the said Act. It, therefore, was not permissible for the tenant to combine the rent payable for the vacant land in respect whereof he does not have any protection whatsoever by reason of the provisions of the said Act, or otherwise. It is, therefore, clear that, so far as the tenancy in respect of the vacant land is concerned, the same being governed under provisions of the Transfer of property Act, and admittedly the provisions of the said Act, having no application in relation to the said tenancy the defendant-appellant could not have remitted the rent by money order in terms of the provisions of section 12(1)(d) or section 16 of the said Act. In this view of the matter, in my opinion, the joint remittance of rent by one money order in respect of the three different tenancies by the appellant to the respondent was not a valid tender either in terms of section 12(1)(d) or section 16 of the said Act. 36. It is true, as suggested by Mr. N.K. Prasad that so far as the tenancy for the vacant land is concerned rent in respect thereof was remitted by money-order along with the rent for two other tenancies even before the expiry thereof but it has not been pointed out before me that such a remittance was contemplated under the deed of lease (Ext.3). N.K. Prasad that so far as the tenancy for the vacant land is concerned rent in respect thereof was remitted by money-order along with the rent for two other tenancies even before the expiry thereof but it has not been pointed out before me that such a remittance was contemplated under the deed of lease (Ext.3). In any event, the period of default is not only for the period up to 10th October, 1973, but for the periods beyond the same and as the rent was jointly tendered even in respect of the period after 10th October, 1973, the remittance of monthly rental by money order in respect of the three tenancies after the 10th October, 1973, would not be a valid tender either under the general law or under the Bihar Buildings Lease, Rent and Eviction Control Act, as after the 10th October, 1973, the landlord was not obliged to accept any amount tendered by the tenant by way of rent or otherwise. 37. True it is, as suggested by the learned counsel for appellant that the plaintiff has not specifically pleaded as to why he refused to accept the amount tendered to her by money orders. But in my opinions, the defendant appellant cannot be permitted raise the said question as this stage. Admittedly, such question was permitted to be raised and the issue with regard to estoppel/waiver was answered by the learned trial courts is favour of the plaintiff of the suit in relation to second Appeal No. 101 of 1981(R). Further it was for the defendant to show that the tender by money order was a valid one. 38. As it appears form the judgment of the learned courts below that the aspect of the matter was considered by the learned trial court in the suit giving rise to second Appeal No. 96 of 1981 (R). In the aforementioned Judgments the courts have answered the issue in favour of the plaintiff–respondent and against the defendant appellant by holding that, if the plaintiff had accepted the said amount, it would have caused prejudice to her, as then it would have been open to the defendant appellant to contend that it had become a monthly tenant by holding over is terms of section 116 of the Transfer of property Act. Further, the learned courts below in their susceptive judgments proceeded on the basis that admittedly the defendant had been tendering the monthly rent in respect three different premises separately and in that view of the matter in absence of any agreement or consent to the contrary by the landlord it was not permissible in law for the tenant to remit the rent payable in respect of three different and district tenancies jointly by one money-order. 39. So far as the decision of the Supreme Court in the case of Gowali Gharan (Supra) is concerned, the same was rendered is different circumstances. In the said case, no ratio has been laid down. The Supreme Court rendered the aforementioned judgment having regard to the fact that the entire rent for the period had been paid to the plaintiff. The question as to whether tenant can be evicted in terms of the provisions of the said Act, only when there was a willful default on the part of the defendant or not was even not remotely canvassed before the Supreme Court. 40. In view of the plain language of section 12(1)(d) of the said Act, there cannot be any doubt that a tenant becomes liable for eviction when he becomes defaulter in terms of the provisions thereof and not otherwise. It therefore, in my opinion, is not permissible so read the words, willful in section 12(1)(d) of the said Act. 41. Recently, the Supreme Court in the case of Jaywant S. Kulkarni and other Vs. Minochar Dosabhai Shroff and ors held that the eviction order is to follow by operation of law. In that case, the plea of the tenant that the rent may not e deposited by a tenant with mathematical punctuality was negatived. 42. At this Juncture, the argument of Shri N.K. Prasad in Second Appeal No. 176 of 1980(R) may be noticed. True, it is that in the said case, the learned lower appellate court proceeded on the basis that the appellant did not tender the monthly rent by money order in respect of the current month along with all arrears as was held by this Court in the case of Rajendra Mohan Ghosh Vs. Smt. Kaushlia Devi (Supra). It is also true that the said decision has been overruled by a Full Bench of this Court in the case reported in 1980 BBCJ 391 . Smt. Kaushlia Devi (Supra). It is also true that the said decision has been overruled by a Full Bench of this Court in the case reported in 1980 BBCJ 391 . But it must be borne in mind that in this case the plea of the appellant was that the rent was remitted by money order along with rent for other two premises. 43. Although the learned lower appellate court did not agree with the finding of the learned trial courts. Mr. Devi Prasad has rightly submitted that it is open to the respondent to attack this part of the finding of the lower appellate court in order to sustain the ultimate decree which has been passed in the said appeal in terms of order 41. Rule 22 and order 41, Rule 33 of the Civil Procedure Code. 44. Reference in this connection may be made in Naresh Ahir alias Ram Naresh Yadav and others Vs. Mr. Barhiya and another, Further, as this appeal was also heard along with other two appeal viz Second Appeal No. 96 of 1981(R) wherein it has concurrently been held by both the courts that such remittance of rent by money order was not valid remittance; it is not possible for this court to give any finding on that issue in favour of the appellant as the same would violate the rule of amity as all the appeals are being disposed of by this common judgment. As seen hereinbefore, the defence of the tenant in respect of all the three cases was common and, in this view of the matter the case of the parties has got to be adjudicated on the basis of their pleadings and not on a mere technical ground. In any event as I have also hold that such a tender was not valid tender, the question raised by Shri Prasad has lost relevance. 45. In this view of the matter. It is held that the appellant has become defaulter by not validity tendering or remitting the rent to the respondent in terms of section 12(1)(d) or section 16 of the said Act. 46. Re : question No (C) In the case, the learned lower appellate court has clearly found that the appellant has not become a monthly tenant in terms of section 116 of the Transfer of property Act. 46. Re : question No (C) In the case, the learned lower appellate court has clearly found that the appellant has not become a monthly tenant in terms of section 116 of the Transfer of property Act. It is admitted that the lessor has neither accepted assented to his continuance of possession after the expiry of the lease. In this view of the mater, the finding of the learned lower appellate court is correct. In my opinion, the learned lower appellate court has further correctly held that in the instant case the question as to whether a notice under section 106 of the Transfer of property Act, was validity served or not was irrelevant in view of the fact that the lease which was created by reason of Ext. 3 expired on the 10th October, 1973, and in view of the decision of the Supreme Court reported in A.I.R. 1975 SC 1111 that the provisions contained in section 111(a) of the Transfer of property Act, would apply in such a case it was not necessary to serve any notice by the respondent upon the landlord in terms of section 106 of the Transfer of the property Act. Re : Question No. (d) 47. As noticed hereinbefore, in Second Appeal no. 96 of 1981(R), it has been held by both the courts below that the appellant has committed breach of the terms of the tenancy by demolishing a part of the boundary wall, but such plea has been negatived in the case giving rise to Second Appeal No.176 of 1980. However, as noticed hereinbefore, in both the suit, the defendant merely denied that it had not demolished the boundary wall of southern portion of the tenanted premises. The appellant also raised a definite plea that the southern boundary wall was not complete and thus the question of demolition thereof did not arise. Such a plea having been negatived by the learned courts below by reason of their concurrent finding which is binding upon this court, it is not possible at his stage to accede to the submission of Mr. N.K. Prasad that the plaintiff has not alleged in her plaint that the said boundary wall was a part of the tenancy. This question has been thoroughly considered by the courts below. N.K. Prasad that the plaintiff has not alleged in her plaint that the said boundary wall was a part of the tenancy. This question has been thoroughly considered by the courts below. The learned lower appellate court upon analyzing the evidence on record has clearly come to the conclusion that the defendant in fact had demolished a part of the boundary wall. This finding of fact is binding upon this court and in this view of the matter. It is not possible to allow the defendant to raise a new plea at this stage. Although the appellant has filed an application under order 41, Rule 27 of the Civil Procedure Code. It has not filed any application for amendment of the written-statement. Such an application under order 41, Rule 27 of the Civil Procedure Code has been filed at the second appellate stage for the first time and that too without there being any application for amendment of the written statement and as such the same should not be entertained at this stage. 48. In the result, I do not find any merit in these appeals which are hereby dismissed with costs. Appeals dismissed.