Order.- The defendant is the appellant. The suit is for delivery of possession of the suit properties and for the recovery of Rs. 1,100 being the damages for use and occupation of the suit properties for two years prior to suit. 2. The dispute in this case is between the grandsons of one Ramaswami Goundar, his first wife Achiammal and his son-in-law who married his daughter by the second wife by name Kanakammal. The suit properties originally belonged to one Natesa Goundar, father of the defendant and were sold by him under Exhibit A-29, dated 19th January, 1934 to the father of the plaintiff and was leased back by the purchaser to the father of the defendant under Exhibit A-30 dated 20th January, 1934. The case of the plaintiff is that the original lessee Kandaswamy was paying rent to his father regularly, that after the lessee’s death, the son of the defendant who continued in possession was similarly paying the rent to his maternal uncle during his minority and to him after he attained majority, that the defendant committed default in payment of rent for two years prior to suit, that on enquiry the plaintiff learnt that the defendant had effected a transfer of patta in his name fraudulently and that the present suit is filed for recovery of possession with past profits. 3. The defence to the suit is that the sale deed Exhibit A-29 was obtained benami in the name of the plaintiff’s father in order to avoid claims on the part of the defendant’s brothers that the lease deed Exhibit A-30 dated 20th January, 1934 was also obtained in similar circumstances, that on the expiry of the period mentioned in Exhibit A-30, the defendant’s father surrendered possession and the defendant had taken possession in pursuance of his title and has been in continuous possession ever since exercising lights of ownership and in any event he has perfected his title to the suit properties by adverse possession.. The further defence raised is that due to the recent disputes between the plaintiff and the grandmother of the defendant, the present suit is filed taking advantage of the fact that the sale deed Exhibit A-29 stood in the name of his father and that the claim is barred by limitation also. 4. The further defence raised is that due to the recent disputes between the plaintiff and the grandmother of the defendant, the present suit is filed taking advantage of the fact that the sale deed Exhibit A-29 stood in the name of his father and that the claim is barred by limitation also. 4. The trial Court accepted the plaintiff’s case that the sale deed under Exhibit B-4 which is the same as Exhibit A-29 was really in favour of the plaintiff’s father, that the defendant’s father and thereafter the defendant continued in possession only as tenants and that the plaintiff is entitled to recovery of possession, there being no bar of limitation as the possession of the defendant was only that of a lessee who had not surrendered possession. The trial Court further accepted the claim for profits made by the plaintiff and decreed the suit as prayed for. 5. The defendant filed A.S. No. 134 of 1968 in Sub-Court, Dindugul. The learned Subordinate Judge held that the defendant failed to establish the plea of benami put forward by him, that the defendant was in possession of the suit properties only in his capacity as lessee and not as owner, that the lessee’s possession was referable to the lease transaction, that the lessee under Exhibit A-30 during his lifetime and thereafter the defendant having paid the rent, the relationship of landlord and tenant continued and that the suit is not barred by limitation, and the defendant did not acquire title by adverse possession. In the result, the appeal was dismissed. 6. The defendant has filed the above Second Appeal. 7. The learned Counsel for the appellant contends: (1) that the sale deed Exhibit B-4 (Exhibit A-29) was benami for the benefit of the defendant; (2) that the suit in any event is barred by limitation ; and (3) that the defendant has perfected his title by adverse possession. On the question of benami, the appellate Court has found that the defendant has failed to adduce proof of possession of funds sufficient for the purchase of the property under Exhibit B-4. Regarding the custody of the original document Exhibit B-4 was produced only by the defendant, but how the defendant got into possession of the document has not been satisfactorily explained by the plaintiff. Regarding the custody of the original document Exhibit B-4 was produced only by the defendant, but how the defendant got into possession of the document has not been satisfactorily explained by the plaintiff. On the question of possession of the suit properties, the appellate Court found that the patta never stood in the name of the defendant as long as his father was alive and even after the father’s death, the patta was transferred only recently and immediately thereafter the plaintiff has questioned the same. The learned Judge also took note of the fact that the plaintiff and his brother did not include the suit properties in their agricultural income-tax returns. The learned Judge further referred to the other circumstances relied on by the defendant viz., that the suit property was not included in the partition Exhibit A-6, dated 19th February, 1944 in the family of the plaintiff, that the property was not included in the released deed Exhibit A-9 dated 6th June, 1951 and that the said property was offered as security by the defendant when he applied for loan under Exhibit B-114, dated 21st November, 1957. Taking the various circumstances, the learned Judge as a fact found that the plea of benami put forward by the defendant has not been made out. That is a question of fact which is binding on me. The learned Judge further found that he was in possession of the suit properties, but that such possession was not in the defendant’s capacity as owner, but as lessee in recognition of the plaintiff’s title as owner. 8. The learned Counsel for the appellant places considerable reliance upon the decision in Thailammal v. Bathumalai1, wherein Srinivasan, J., had occasion to consider a similar question. The facts in the said case are as follows. ‘One S mortgaged the suit property in favour of the defendant’s husband in 1930. At the same time, he granted a lease of the same property in favour of K for five years. S and K died during the lease period. The widow of K and his son sold the suit property to the defendant’s husband. The sale was in discharge of the mortgage executed by S. The plaintiff, son of an undivided brother of S filed a suit for recovery of possession from the alienee on the ground that the conveyance was not binding on him. The widow of K and his son sold the suit property to the defendant’s husband. The sale was in discharge of the mortgage executed by S. The plaintiff, son of an undivided brother of S filed a suit for recovery of possession from the alienee on the ground that the conveyance was not binding on him. The plaintiff was born in 1940, and his undivided father was alive when the alienation took place. The suit by the plaintiff was filed beyond 12 years from 1935. It was held that the suit was barred by limitation under Article 139, that the limitation began to run from 1935 when the lease came to an end by efflux of time, that the plaintiff’s attempt seeking to extend the period by reason of his minority must fail, because in 1935 he was not barn, that the time which began to run from 1935 cannot stop running and that the suit filed more than 12 years from 1935 is barred by limitation. The learned Judge further held that when once the lease comes to an end by efflux of time, merely because a tenant continued to be in possession of the land, the relationship of landlord and tenant can no longer subsist and after the termination of the tenancy the tenant’s right to set up title hostile to the landlord does not appear to be negatived by any decided case. In the present case, the lease came to an end on the termination of the lease under Exhibit A-30 by efflux of time. The lessee, however, remained in possession, after the expiry of the lease period. He, therefore became a tenant on sufferance. The quetion, therefore, is whether the tenant continued in possession after the lease period without the consent of the landlord or whether he continued in possession after the expiry of the lease period with the consent of the landlord. In English law, the former is called a tenant by sufferance, while the latter is called a tenant holding over. The tenancy on sufferance will be converted into a tenancy at will by the assent of the landlord. The assent of the landlord for the continuation of the tenancy after the termination of its period will create a new tenancy. In English law, the former is called a tenant by sufferance, while the latter is called a tenant holding over. The tenancy on sufferance will be converted into a tenancy at will by the assent of the landlord. The assent of the landlord for the continuation of the tenancy after the termination of its period will create a new tenancy. The assent of the lessor may be inferred from: (1) acceptance or rent; (2) a demand for rent; (3) filing of a suit for rent; (4) an agreement as to an item in an account for rent; or (5) the grant of an invalid lease. These circumstances can only create a presumption which is rebuttable. 9. Shri M. V. Krishnan, appearing for the respondent, relied on Bilas Kunwar v. Desraj Ranjit Singh1 in support of his contention that a tenant who was 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. Section 116 of the Indian Evidence Act deals with the tenant’s estoppel and under that section, no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property. It is thus seen that the defendant who is the tenant, in order to claim title in himself, must first establish that he surrendered the tenancy to the landlord. without establishing the fact of surrender, it is not open to the defendant to deny the title of the landlord and claim an adverse title from the mere fact of his continuing in possession. In Atyam Veeraraju v. Pecketti Venkanna2, Bachawat, J., following the decision of the Privy Council in Bilas Kunwar v. Dasraj Ranjit Singh1 observed as follows at page 633: "Having regard to section 116 of the Indian Evidence Act, 1872, during the continuance of the tenancy, the tenant will not be permitted to deny the title of the deity at the beginning of the tenancy. In Bilas Kunwar v. Desraj Ranjit Singh3, it is observed: ‘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, therefore, is whether the defendant in the present case has surrendered possession to the landlord in order to be entitled to claim adverse title as against the landlord. It is no doubt true that the defendant has been in factual possession for over the statutory period; but the question is whether he has surrendered possession to the landlord and still continued to remain in possession of the same even after such surrender. The Courts below have not addressed themselves to this aspect of the matter. 10. I therefore call for a finding from the Subordinate Judge, Dindigul, on the question whether the defendant has surrendered possession of the leased property on the expiry of the lease period under Exhibit A-30. The Subordinate Judge will send the finding within two months from the date of receipt of records by him. Ten days for objections. S.J. -------------------- Finding called for.