RAJARAM MOULSAB KALAL v. BASAWWA — 1974 DIGILAW 179 (KAR)

( 1 ) THE appellants are the legal representatives of the plaintiff. The respondents are the legal representatives of the defendant. The plaintiff filed the suit for a declaration of her title to the suit property and for possession. The suit property consists of a shop premises bearing CTS. No,. 1533/ 36-B in Gadag Town. The suit was filed in 1959. Magarsab, the original owner of the suit property sold the same to the plaintiff under the registered sale deed dt. 17-7-1939. The defendant was the tenant in occupation of the suit premises since prior to the date of sale in favour of the plaintiff. According to, the plaint allegations, soon after she became the owner, intimation was conveyed to the defendant who agreed to continue to stay there as a tenant for a period of one year on a monthly rent of Rs. 25. It is alleged that the defendant enjoyed the confidence of the plaintiff. The defendant was acting as agent of the plaintiff in a number of transactions. The defendant continued to remain as tenant till differences arose between them in respect of some other landed property belonging to the plaintiff in the year 1958 and the plaintiff got issued a notice terminating the tenancy of the Deft and claiming arrears of rent. The Deft replied denying her title and contending that he is the true owner of the premises and that the plaintiff is merely a 'benamidar'. He also claimed that he had become the owner of the property by adverse possession. According to the case of the defendant, he and the plaintiff wore friends and since defendant's brother Virupakshappa was leading the life of a vagabond, the suit property was purchased in the name of the plaintiff by the defendant. He also pleaded that he was in occupation of the suit premises as a tenant under the previous owners and continued to stay there subsequent to the date of purchase. He further pleaded that there was mutual confidence between himself and the plaintiff and therefore did not get the 'katha' of the property changed into his name and that since differences arose between him and the plaintiff in 1958, the plaintiff is trying to take advantage of the sale deed standing in her name. He also pleaded that the sale deed of the suit property remains with him. He also pleaded that the sale deed of the suit property remains with him. ( 2 ) BOTH the lower Courts held that the plea of 'benami' set up by the defendant is not true. But they held that the suit is barred by limitation. Hence, both the lower Courts dismissed the suit. ( 3 ) THE reason given by the defendant for getting the sale deed in the name of the plaintiff is that the defendant's brother Virupakshappa was leading the life of a vagabond and therefore he wanted to save the property from creditors. But it is in evidence that the said Virupakshappa is doing jewellery business along with the defendant. It is also in evidence that the defendant has purchased a number of properties in his own name. It is also in evidence that the defendant was enjoying the confidence of the plaintiff and has acted on her behalf in a number of transactions. In view of all these circumstances, both the lower Courts held that the plea of 'benami' set up by the defendant is not true. This is a finding on a question of fact and there is no reason to interfere with the finding of the lower Courts in this regard. ( 4 ) IT is admitted that the defendant was the tenant of the suit premises under magarsab-plaintiff's vendor. Hence, under S. 109 of the T. P. Act, the plaintiff became the lessor of the defendant. There is no evidence of the defendant having paid rents to the plaintiff. ( 5 ) IN Lingamma v. Putte Gowda, 1962 Mys. L. J. 752, FB. a Full Bench of this Court held that in a case where the plaintiff sues for possession on the ground that although the defendants entered into the suit property as tenants they were in wrongful possession thereof but fails to prove his allegations, has to establish his possession within twelve years of the suit. ( 6 ) MR. N. Venkatachala, appearing for the appellants, relied on the decision in Mithoor Shankar Bhatta v. Batra Maila, 1968 1 Mys. L. J. 374. The plaintiff who sought to recover possession on the allegation that the defendant and his father had been put in possession of the property as tenants successfully established the execution of the rent note by the defendant's father in the year 1942. L. J. 374. The plaintiff who sought to recover possession on the allegation that the defendant and his father had been put in possession of the property as tenants successfully established the execution of the rent note by the defendant's father in the year 1942. The suit was filed in the year 1960. It was held that the decision of the Full Bench in the above said case does not apply to a case where the plaintiff astabhshes that the defendant has been put in possession of the property as a tenant and where there was no dispossession or any discontinuance of possession. It! was held that to such a case Art. 144 of the Limitation Act applies and that unless the defendant establishes that he had acquired title by adverse possossion prior to the suit, he cannot be heard to say that the plaintiff's suit was barred by Art. 139 or Art. 142 of the Limitation Act. In that case, there was no allegation that the defendant or his father denied this plaintiff's the at any time till 1960 when he issued the reply notice just prior to the suit. That was a case where the suit was fileed on the basis of title as well as on the allegation of tenancy. In the present case also the plaintiff has based her suit on title as well as on tenancy. He also relied on the decision in AIR 1935 PC 59 and ILR 4 Cal 314. But in Ghandrika Prasad v. Bombay Baroda and Central India Ry Co, AIR. 1935 PC. 59 the defendant had been allowed to continue in possession on the same terms of tenancy and had paid rents till 1923, the suit having been filed in 1924. In Rungo Lall Mundul v. Abdul Guffoor, ILR. 4 Cal. 314 it was not a case of lease for a term. Hence, these two decisions are not applicable to, the present case. He also relied on the decision in Lakshmi Reddy v. Lakshmi Reddy, AIR. 1957 SC. 314. herein it is held that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. Hence, these two decisions are not applicable to, the present case. He also relied on the decision in Lakshmi Reddy v. Lakshmi Reddy, AIR. 1957 SC. 314. herein it is held that limitation cannot begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. The principle stated in Mitra's Tagore Law Lectures on Limitation and Prescription, in the following terms, was referred to with approval : an adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avqwed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him who was in possession. It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. " he also relied on the decision in Murti Dusadhin v. Md Mir Khan AIR. 1965 SC. 875. In that, case, the suit was for declaration of title to land. The defendant admitted plaintiff's title to claim occupancy rights. Dispossession was not alleged by either party. It was held that Art. 144 and not Art. 142 of the limitation Act applied to such a case and it was observed as follows : it seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant's plea and for the purpose of deciding whether Art. 142 or Art. 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Article 142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession. ( 7 ) IT is contended by Shri G. S. Shirgurkar, appearing for the respondents that the planitiff pleaded that she had leased the property to the defendant for one year after purchase and that according to her own plea the period of lease expired in the year 1940 and that therefore, the suit filed in the year 1959 is barred since there was no fresh lease and no payment of rents. He relied on the decision in Purshottam Yeshwant Acharekar v. Vishnu Gorathe Davi AIR. 1927 Bom. 650. wherein there was no agreement to pay rent after the termination of the lease. The suit was held to be barred by limitation as it was brought after twelve years from the date of termination. Art. 139 of the Limitation Aet was held to be applicable to such a suit. In Sanapathi Sitharamiah v. Nandababu Ramaswamy, AIR 1938 Mad. 73 . it has been held that where the defendant continued in possession of the leased property for more than twelve years even after the expiry of the tenancy and it was not proved that he paid rent or that the plaintiff assented to the possession of the defendant after the period of the lease or that the defendant had accepted the title of the landlord, the suit was barred under Art. 139 of the Limitation Act. In Sheogobind Bhakat v. Sujan Mahto, AIR. 1960 Pat. 156. it has been held that where a tenancy is for a fixed period and the tenant continues to remain in possession after the expiry of the period, he becomes a tenant by sufferance and his possession is wrongful as against the landlord unless there is evidence to show that subseouently the landlord has given his affirmative consent to his continuance, thereby converting a tenant by sufferance into a tenant at will. It was further held that there must be clear evidence of such consent. Though the evidence may not be of a weighty character even slight evidence may suffice. Unless there is such consent the possession of the tenant by sufferance does not prevent limitation from running against the landlord under Art. 139 of the limitation Act and the suit must be brought within twelve years from the date of the termination of the period of the tenancy. In Banwari Lal v. Hussaini, AIR. 1940 Lah 410. Unless there is such consent the possession of the tenant by sufferance does not prevent limitation from running against the landlord under Art. 139 of the limitation Act and the suit must be brought within twelve years from the date of the termination of the period of the tenancy. In Banwari Lal v. Hussaini, AIR. 1940 Lah 410. it has been held that in the case of a tenancv for a fixed term the tenancv is determined automatically at the expiry of the term of the lease and after that date the relationship of landlord and tenant does not subsist unless it is proved that there was a novation of contract, excess or implied, and the tenancy has been converted into a tenancy at will or a tenancy from year to year and that the tenancy at will does not determine until notice to quit has been served on the tenant. ( 8 ) IN Bhawanji Lakshamshi v. Himatlal Jamnadas Dosi, AIR. 1972 SC. 819. it is held that acceptance of rent by a landlord from a tenant in possession after a lease had been determined and who enjoys statutory immunity from eviction under the rent restriction acts, cannot be regarded as evidence of a new agreement of tenancy and that if the tenant fails to establish that the landlord accepted the rent only as legal rent indicating his assent to tenant's continuing in possession and not as statutory tenant, there was no holding over by him. The position in law where the Rent Restriction Acts dq not apply, as stated by Patanjali Sastri, J. , in Kai Khushroo Bezonjee Capadia v. Baj jerbai Hirjibhoy Warden, AIR. 1949 FC. 124. , in the following terms, was referred to with approval :"turning now to the main point, it will be seen that the section postulates -the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a taeit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises mope readily and clearly the implication of an agreement between the parties to create a fresh tenancy the following observation in Ganga Datt Murarka v. Kartik Chandra das AIR. 1961 SC. 1067, was also referred to with approval: apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. ( 9 ) THE question, therefore, is whether, on the facts of the present case, the plaintiff had assented to the continuance of the possession of the defendant subsequent to the expiry of the period of the lease. The sale deed in favour of the plaintiff is d/. 17-7-1939. The defendant is an attestor of the said sale deed The plaintiff and defendant were on cordial terms. On 3-6-1940 the defendant filed an application on behalf of the plaintiff in the suit filed by a creditor against the plaintiff's vendor depositing Rs. 300. The defendant filed an application under his signature on 28-6-1941 under ext. 124 depositing Rs 300" on behalf of the plaintiff in SD. 398|39. The defendant admits in his evidence having made such deposit. Ext. 134 is an application for adjournment d/ 7-11-1942 DW 4 admits that Ext. 134 was got prepared at the instance of the defendant. Ext. 135 is an application d/ 2-7-1942 signed by the plaintiff asking for time to pay the amount due in instalments DW 4, Clerk of the Vakil who appeared in the suit SD. 398/ 39. has stated in his evidence that this application was prepared on the instructions of the defendant It is also in evidence that the plaintiff had placed confidence in the defendant before differences arose between them. On several occasions, the defendant paid money before the Sub-Registrar on behalf of the plaintiff for purchases made by the plaintiff. The plaintiff had entrusted the custody of her title deeds and documents to the defendant in respect of the suit property as well as other properties belongirg to the plaintiff, according to the finding of the lower appellate Court. On several occasions, the defendant paid money before the Sub-Registrar on behalf of the plaintiff for purchases made by the plaintiff. The plaintiff had entrusted the custody of her title deeds and documents to the defendant in respect of the suit property as well as other properties belongirg to the plaintiff, according to the finding of the lower appellate Court. The defendant also admits that he and the plaintiff were enjoying mutual confidence of each other and that differences arose between them only recently, i. e. , at about the time of the plaintiff's notice in the year 1958. Ext. 135 is dated 2-7-1942 Ext 124 is dated 28-6-1941. Ext. 134 is dated 7-11-1942. There is no evidence of denial of the plaintiff's title by defendant till the plaintiff issued the notice to him in 1953, nor is there evidence of denial of the tenancy "under these circumstances, it must be held that the plaintiff assented to the continuance of the defendant in possession of the suit property after the period of tenancy. Hence, the tenancy of the defendant became terminated by the plaintiff's notice to quit issued in the year 1958 and till such termination, the defendant continued to be a tenant at will. Since there was no denial of plaintiff's title by the defendant till the year 1958, no question of adverse possession arises. The lower Courts were, therefore, in error in holding that the suit is barred by limitation. ( 10 ) IN the result, this appepal is allowed with costs throughout. There shall be a decree directing delivery of possession from the defendant to the plaintiff. The plaintiff is entitiedto rents for three years up to the date of suit at the rate of Rs. 25 p. m. and to mesne profits subsequent thereto up to the date of delivery of possession. There shall be an enquiry into the mesne profits awarded under Or. 20, R. 12 of the CPC. --- *** --- .