JUDGMENT Yorke, J. - This second appeal raises a question of limitation only. The plaintiff appellant Mt. Sukhdei had instituted her suit to recover sum of Rs. 1920 as compensation for use and occupation of a shop which had been rented to the defendant as far back as the year 1029. Alter some difficulties between the parties and some litigation, the plaintiff on 8-2-1933 served a notice on the defendant asking him to vacate the shop up to 25-24933 and informing him that if he did not vacate the shop, he would be liable for damages for use and occupation after that date at the rate of Rs. 5 per day. The defendant, it was said, failed to give possession to the plaintiff until 15-9-1934, hence the present suit which was filed on 15-4-1937. 2. One of the points raised incidentally in the trial Court on issue 3, "to what damages, if any, is the plaintiff entitled?" was the question which Article of the Limitation Act was applicable to the suit. After considering the alternative possibilities of applying Art. 115 and Art. 120, Limitation Act, the learned City Munsif of Cawnpore held that Art. 120 was applicable and therefore decreed the suit for the whole amount claimed. As Art. 120 prescribed a period of 6 years and the whole of the period for which compensation was claimed fell within the period of 6 years prior to the institution of the suit, that was the only possible conclusion. 3. In appeal the learned Temporary Civil and Sessions Judge of Cawnpore rejected the contention that Art. 115 or Art. 120 could be applied and he held that the suit was governed by Art. 39, sch. 1, Limitation Act which prescribes a period of limitation of (sic) years for a suit for compensation for trespass upon immovable property, and the time from which the period runs being the date of the trespass. He took the view that the defendant by holding over after receiving a notice to quit thereby became a trespasser and hence Art. 39 was applicable to a suit for compensation in respect of that trespass. In consequence of this decision he held that the suit was only in time with respect to the period of 5 months and 2 days from 13-4-1934 to 15-9-1934 and be reduced the plaintiff's claim for damages from Rs. 1920 to Rs. In consequence of this decision he held that the suit was only in time with respect to the period of 5 months and 2 days from 13-4-1934 to 15-9-1934 and be reduced the plaintiff's claim for damages from Rs. 1920 to Rs. 506 and decreed the claim with proportionate costs only and interest pendente lite and future at 6 per cent. 4. On behalf of the plaintiff appellant, it is now contended that whatever Article may be applicable to such a suit as the present one, Art. 39 is certainly not applicable. The question in effect resolves itself into a different question, that is, what was the real position of the defendant holding possession of this property, into possession of which he had come in a perfectly legal manner, after the period fixed in the notice. In the ordinary way, suppose a tenant continues to hold over after the expiry of his lease and the landlord accepts rent from him, the tenant who was previously a lessee under the contract between the parties becomes what is called a tenant by sufferance; but, at any rate, he is prima facie still a tenant. The position after the tenancy has been determined by a notice will obviously be somewhat different. But for the purposes of considering the applicability of Art. 39 the question which has to be decided is whether thereafter he is in possession as a trespasser. In my judgment it cannot be said that he is a trespasser. The general impression I derive from Art. 39, from the notes to Art. 39 in Chitaley's commentary on the Indian Limitation Act, vol. II and the quotations from Salmond on Torts which he reproduces is that as stated in Clerk & Lindsell on Torts, Edn. 9, Chap. XV at p. 401, Trespass to land (I am quoting here from Clerk and Lindsell) consists in an unjustifiable intrusion by one person upon land in the possession of another. It is obvious that there is a wide distinction between continuing in possession of property of which the possession has commenced lawfully and intruding upon property which was not previously in the possession of the intruder. It is obvious that there is a wide distinction between continuing in possession of property of which the possession has commenced lawfully and intruding upon property which was not previously in the possession of the intruder. In the passage quoted from Salmond on Torts trespass to immovable property is defined as follows : The wrong of trespass to land consists in the act of entering upon land in the possession of the plaintiff or remaining upon such land or placing any material object upon it, in each case without lawful justification. Another passage quoted in Chitaley runs as follows: Trespass is, thus, a wrong committed against the possession of the plaintiff. In the same section of his notes Chitaley quotes from a Madras decision in the following terms : But where there is no proof of the plaintiff's possession being disturbed, a suit for compensation cannot be sustained. It appears to me that the upshot of all these clearly is that the present suit is not a suit for compensation for trespass upon immovable property. The plaintiff was not in possession of the property but the defendant had lawfully entered into possession of that property and his remaining upon it after the determination of the lease and the notice to quit does not constitute a trespass upon the property in the required sense. The only case upon which learned counsel for the respondent has been able to found his argument for the applicability of Art. 39 is a Bench decision of the Madras High Court in [Ramasami Reddi v. Authi Lakshmi Ammal,] (11) 34 Mad. 502 (504): 8 I.C. 162. That, however, was rather a peculiar suit. The plaintiff instituted two suits. He instituted a suit for ejectment of the defendant from certain property, the facts of which are not reproduced in the decision. He also instituted a suit for mesne profits for the period between the institution of the ejectment suit and the date of judgment in that suit. It was found that there were no profits actually collected and it was held that this was a suit for compensation for trespass upon immovable property. The learned Judges then said: We have then to decide between Art. 39 and the residuary Art. 120. Is the present action one for compensation for trespass upon immovable property? We have come to the conclusion, though not without hesitation, that it is. The learned Judges then said: We have then to decide between Art. 39 and the residuary Art. 120. Is the present action one for compensation for trespass upon immovable property? We have come to the conclusion, though not without hesitation, that it is. The action under the English Law in such a ease as the present was in trespass. A claim for mesne profits when the plaintiff has been ousted from possession is essentially one for damages. The difficulty in estimating the value of this decision arises from the absence of any information as to the nature of the suit for ejectment. If that was a suit for ejectment of the defendant as a trespasser, then one would naturally expect the suit for compensation for the period during which that suit was pending to be a suit to which Art. 89 would apply in preference to Art. 120. The decision therefore does not really help in the decision of the present case. In my judgment Art. 39 is not applicable. 5. The alternative put forward on behalf of the respondent is that Art. 115, sch. 1, Limitation Act is applicable. That Article provides a period of 3 years' limitation for a suit for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for, and the time from which the period begins to run is "when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases." There are in a sense two answers to this contention. In the first place, I do not think that the present suit is one to which Art. 115 applies at all. What the defendant has done is to commit a breach of his statutory liability under the provisions of S. 108 (q), T.P. Act. By that provision: In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules, next following, or such of them as are applicable to the property leased:(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Bearing in mind the words with which the section opens, I think it is impossible to say that the liability imposed on the lessee by cl. (q) of this section is a liability imposed by a contract either express or implied. On the contrary, it is a statutory liability and Art. 115 does not provide a period of limitation for a suit for compensation for breach of a statutory liability or, as it might be described, breach of statutory duty. The second answer to this contention put forward by Mr. Dutt on behalf of the appellant is that if this article were to be construed as to be applicable it would not justify a reduction of the plaintiff's claim. The plaintiff is claiming compensation or damages for breach of the liability and although she has chosen to put the claim in the form of an arithmetical calculation based on the period for which she was kept out of possession, she was perfectly entitled to claim this sum or indeed any larger or smaller sum which she might fix as a suitable amount of compensation for breach of the statutory duty which lay upon the defendant. 6. Upon a consideration of the arguments put before me and the terms of the articles, it seems to me to be clear that neither Art. 39 nor Art. 115 was applicable to the present suit. No other article has been suggested as being Applicable in the course of argument. In my opinion the learned Munsif was perfectly right in holding that the case fell within the scope of Art. 120 and he was, therefore, right in decreeing the plaintiff's claim as made by her. I accordingly allow this appeal with costs, set aside the decree of the lower appellate Court and restore the decree of the trial Court. Leave for Letters Patent appeal is refused.