Amir Chand v. Sadhoo Ram — 1968 DIGILAW 291 (ALL)

ORDER Mahesh Chandra, J. - This is a Plaintiff's second appeal against the dismissal of the suit by both the courts below. The suit was brought by Amir Chand, Plaintiff-Appellant, for eviction of Sadhu Ram and Tara Chand, Defendants-Respondents. The Plaintiff-Appellant alleged that the Defendants Respondents were tenants of the premises from month to month at Rs. 5/- per month and that he has obtained permission from the RC and EO to eject them who have not paid rent for the period of 11-9-19(?) to 24-8-58. The Defendants-Respondents denied that they were tenants of the Appellant and pleaded that the suit was time barred. 2. It has been found by both the courts below that the tenancy expired on 6-5-1932 and that no rent had been paid thereafter, that there had been no admission by the Defendants-Respondents about their being tenants of the land in suit and that the suit was barred by efflux of time. Both the courts below accordingly dismissed the suit. The matter is conclued by concurrent findings of fact of both the courts below in so far as the non-payment of rent after the expiry of the period of tenancy in 1932 is concerned. Learned Counsel for the Appellant contends that the application of the Defendants-Respondents before the RC and EO saying that the Applicant wanted to have a rent note executed in his favour at an enhanced rate of rent to which opposite party did not agree and hence he has moved this application to vindicate his obstinacy and to wreak vengeance, amounts to an admission that they had been paying rent to the Appellant. This contention is without force. It is not denied that in the beginning Mangoo paid Rs. 3/8/- as rent for one year till May 1932. The phrase "enhanced rate of rent" will, therefore, refer to the rate of rent paid by Mangoo in 1931 and part of 1932, or the rate of rent agreed upon between the Appellant and Mangoo. There is no admission any where in that application to the effect that rent at any rate whatsoever had been-paid after May, 1932. The courts below were, therefore, right in saying that the use of the phrase "enhanced rate of rent" did not imply any admission that before the demand of Rs. 5/8/- as rent the Respondents had at all been paying any rent after May, 1932. 3. The courts below were, therefore, right in saying that the use of the phrase "enhanced rate of rent" did not imply any admission that before the demand of Rs. 5/8/- as rent the Respondents had at all been paying any rent after May, 1932. 3. The next contention of the Learned Counsel for the Appellant was that after the expiry of the period of one year Mangoo's tenancy had not terminated but they were holding over u/s 116 of the Transfer of Property Act. This contention is without force. Section 116 of the Transfer of Property Act runs as follows: If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee and the lesser or his legal representative accepts the rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. It is clear from the words of this section that a person would not be a tenant holding over merely because he continued in possession of the premises after the determination of the lease. What is necessary for the application of this section is that the landlord must have accepted the rent from the lessee or otherwise assented to his continuing in possession. In the absence of payment of rent or the acceptance of it by the landlord or anything to show that the landlord has assented to the lessee continuing in possession, the person concerned would not after the determination of the lease become a tenant holding over. The question of burden of proof does not arise at this stage. The parties have entered into evidence and it was found by both the courts below that no rent was paid after the determination of the lease. Nor was there any assent on the part of the landlord to the continuance of the tenancy. In these circumstances, the Defendant-Respondents or their predecessors Cannot by any stretch of imagination be said to be tenants holding over. 4. Nor was there any assent on the part of the landlord to the continuance of the tenancy. In these circumstances, the Defendant-Respondents or their predecessors Cannot by any stretch of imagination be said to be tenants holding over. 4. It was also contened by the Learned Counsel for the Appellant that so long as the Respondents remained in possession of the property they could not be permitted to deny the title of the landlord, since they entered into possession as a tenant. This is true, but the question here is not one of adverse possession or of the Respondent's becoming owners of the property in suit. The question merely is that the suit is barred Under Article 139 of the old Indian Limitation Act. It runs as follows: 139. By a land-lord to recover possession from a tenant. Twelve years When the tenancy is terminated. All that this Article says is that the limitation for a suit by a landlord to recover possession from the tenant would be time barred if it is filled after the expiry of twelve years from the date of the termination of the tenancy. Thus, this Article 139 of the Limitation Act stands in the way of the Appellant's suit for eviction of the Respondents treating them as tenants. 5. In Bisheshwar Nath v. Kundan and Ors. (1922) 20 ALT 593 it was held that where the Plaintiff had leased his premises to the Defendant for three years and the Defendant had after the expiry of that period remained in possession for more than 12 years without paying any rent, a suit for ejectment after the expiry of 12 years of the expiry of the lease was time barred. In the copy of the judgment there was reference to the Addison's Law of Contract, 10th edition p. 618, where it was said that "when the tenant at sufferance has existed for 20 years (now 12 years), the landlords' right of entry is barred by statute and the tenant became the absolute and complete owner of the property." Reaves, J. observed: "So far as the question of limitation is concerned, the law in India is not different, in my opinion, although it may not be good law to hold that a tenant holding over is in adverse possession to his landlord." The conclusion to which he reached at the end of the judgment was that the suit was clearly barred Under Article 139 of the Limitation Act. The other Judge Stuart, J. of the Division Bench clarified the position by quoting the observation of their lordships of the Privy Council in Bilas Kunwar v. Deshraj Ranjit Singh ILR 37 All. 557 wherein it was held that "a tenant who has been let into possession cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord." The question is whether the Plaintiff would succeed in his suit because of the bar of Article 139 of the Limitation Act and not because the Respondent had become the owner of the property in question. After quoting the view of their Lordships of the Privy Council, Stuart, J. observed: That clearly is the law, but does it in any way affect the present case. I think it does not. The Defendant cannot be permitted today to deny the Plaintiff's title. They have foolishly denied it, but they cannot be permitted to do so. The Plaintiff is undoubtedly the landlord and the Defendants are the tenants by sufferance, but once having recognised that the tenants are so estopped. The fact still remains that the suit has been instituted beyond the period of limitation allowed by the law. In these circumstances, I accept the view of my learned brother and would dismiss the appeal. 6. The Plaintiff is undoubtedly the landlord and the Defendants are the tenants by sufferance, but once having recognised that the tenants are so estopped. The fact still remains that the suit has been instituted beyond the period of limitation allowed by the law. In these circumstances, I accept the view of my learned brother and would dismiss the appeal. 6. Thus, the Division Bench of this Court in that case did not go to the extent of holding that the Respondents had become the owner of the property, but held that the suit for their eviction was time barred in view of the provisions of Article 139 of the Limitation Act. This is exactly the position in the present case. In this case also we are concerned not with the acquisition of the title of ownership by the Respondent, but only with the question whether the suit is or is not barred by time Under Article 139 of the Limitation Act and the suit is clearly barred by time. 7. The result is that the appeal is without substance and is dismissed with costs.