JUDGMENT-This appeal raises a question of applicability of Article 139 of the Indian Limitation Act, 1908 corresponding to Article 67 of the present Act. The two appellants are brothers. Their father Keshaoprasad died in the year 1935. Sometime before his death, he appears to have created a lease in favour of original first respondent-defendant No.1. He is dead and his heirs have been brought on record. The second respondent is the mother of the present appellants and has been joined as the party defendant because at the time of the transaction and after the death of Keshaoprasad the appellants were minors. Sheoranibai, the second respondent, was acting as their guardian. 2. There is a dispute between the parties whether the original lease was in respect of the land as well as the house thereon. According to the appellants plaintiffs, the plot as well as the house situated thereon came to their father as an ancestral property. Since he died prior to 14th April 1937 his widow, second respondent, had no share in the suit property. The tenancy with the original first defendant commenced from 20th of the Calendar month. It is, however, stated that some time in 1951 it was regulated according to the English Calendar month. The plaintiffs averred that originally the rent was agreed upon at Rs. 7 per month. The same was increased to Rs. 9 and by about the year 1939 it was increased to Rs. 10. However the Munims engaged for collection of rent passed receipts of Rs. 2 per month only, though more amount recovered was duly entered in the account books. The contesting respondent No. 1 put forward the case that on the plot of land he had taken on lease, immediately a house was constructed by his own money. He also put forward a simultaneous agreement to pay Rs. 850 in addition to the rent of Rs. 2 per month so that on such payment being made the entire property together with the house and the land was to remain in his possession as owner. He has contended that on payment of Rs. 135 in July 1946, the payment due was made over and as such the plaintiffs did not have any interest in the suit property. 3. He has contended that on payment of Rs. 135 in July 1946, the payment due was made over and as such the plaintiffs did not have any interest in the suit property. 3. On 28-11-1947 Sheoranibai as the guardian of the present appellants filed an application under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order in the Court of the Rent Controller, Nagpur for permission to issue a notice to quit. This was because the contesting respondent was alleged to be in arrears of rent for more than 3 months. It seems the Rent Controller happened to grant such a permission, but in appeal the Deputy Collector reversed that order holding that the rent due was Rs. 2 per month and that there were no arrears. Subsequently a civil suit bearing No. 383 of 1951 was filed in the Court of the Second Civil Judge, Class II, Nagpur empowered under section 19 of the C. P. Courts Act. In that suit the guardian of the present appellants had claimed rent from 20-6-1946 to 20-1-1950. The claim was denied. The contesting defendant had put forward his case regarding only the land having been let out for Rs. 2 per month and he himself putting the construction on it. He also put forward a case of Rs. 850 to be paid to become the owner of the land and maintained that such an amount was received by Keshaoprasad and after his death by the appellants. 4. On 14-3-1953 the suit was decided against the plaintiffs. According to the learned Judge the rent agreed was Rs. 2 per month and the plaintiffs were overpaid. He did not go into the question of title and he could not have gone into such a question. 5. Subsequent to this, on 18th of July 1958 notice to quit and vacate the premises by end of August 1958 was served on the contesting defendant intimating the election of forfeiture for denial of title. On 4-6-1962 the suit out of which this appeal arises came to be filed. In this suit written statement has been filed on 13-8-1962 reiterating the contentions noted on behalf of the contesting defendant. In this suit the plaintiffs prayed for the possession of the house as well as damages past and future. On 4-6-1962 the suit out of which this appeal arises came to be filed. In this suit written statement has been filed on 13-8-1962 reiterating the contentions noted on behalf of the contesting defendant. In this suit the plaintiffs prayed for the possession of the house as well as damages past and future. In the alternative, it was stated that in case the plaintiffs were not able to prove the title to the house, the possession of the land be granted to them with a mandatory injunction directing the contesting defendant to dismantle and remove the structure within a specified time. 6. The learned trial Judge deciding the suit, on 31st August 1963 inter alia framed an issue regarding the title to the structure. That was held against the plaintiffs. There was also an issue regarding the agreement of sale and whether the claim of the plaintiffs was barred by time. These issues were also answered against the plaintiffs and the Court concluded that the suit both as regards the house and the land was barred by Article 144 of the Limitation Act. 7. In the first appeal preferred by the present appellants the learned Second Extra Assistant Judge, Nagpur confirmed these findings. He held that the house belonged to the contesting defendant. The agreement with, the deceased Keshaoprasad whereby the latter agreed to sell the site for Rs. 850 and that the price was paid off by July 1945 was held proved and it was also said that the defendant perfected his title to the site by adverse possession. 8. Aggrieved by this decision, the present appeal has been filed. Mr. Junankar appearing on behalf of the appellants challenged the decision chiefly on two counts. In the first place, it is said that the courts below erred in coming to the conclusion that the suit was governed by Article 144 of the Indian Limitation Act, 1908. The Article applicable was Article 139 of that Act. There was, therefore, an error of approach since the inception. He further argued that the Courts failed to take into consideration the provisions of section 54 of the Transfer of Property Act which required that any sale of immovable property worth Rs. The Article applicable was Article 139 of that Act. There was, therefore, an error of approach since the inception. He further argued that the Courts failed to take into consideration the provisions of section 54 of the Transfer of Property Act which required that any sale of immovable property worth Rs. 100 could only be by a registered document and by reason of section 91 of the Indian Evidence Act, no oral evidence in such a case could be led to prove the terms. Among other things criticised by him, he said that the contesting defendant had not raised a plea of adverse possession so that the Courts ought not to have looked into such a contention. It was also pointed out on behalf of the appellants that both the Courts were in error in basing inferences on the rent receipts Exhibits 68 to 73 purporting to show Rs. 2 per month as the rent because they were not properly proved as required by section 67 of the Indian Evidence Act. By way of tail-end an argument was also raised that section 6 of the Indian Limitation Act applied and there could not have been any running of time against the appellants who were minors when the alleged adverse possession is said to have started. 9. Mr. Chendke for the contesting respondent maintains that a plea of adverse possession had been raised in the written statement. The Courts were right in the application of Article 144 of the Limitation Act. The adverse possession had ripened into a full title at least from 15- 3-1948 when in the earlier written statement a case repudiating the title of the appellants even in respect of land was made out. In his submission, section 54 of the Transfer of Property Act cannot at all be invoked because the contesting defendant had not pleaded any sale but had pleaded an agreement of sale which could be even an oral agreement. Regarding the receipts he has a case that they were admitted and had been referred to right from the year 1947 when proceedings were lodged before the Rent Controller and it is too late in the day for the appellants to speak of their non-proof. As regards the contention based on section 6 of the Indian Limitation Act, he relied upon section 8 of that very Act. 10. As regards the contention based on section 6 of the Indian Limitation Act, he relied upon section 8 of that very Act. 10. At the outset it may be observed that the argument based on section 6 of the Limitation Act appears to be utterly devoid of any merit. The Combined effect of sections 6 and 8 amounts to extending the period of limitation by three years after minority for filing a suit in cases where the limitation provided is Dot less than three years. The first appellant attained majority in the year 1951 and the second appellant having been born in 1934 attained his majority in 1952. At the date of the suit, therefore, they could not have taken advantage of section 6 or section 8 if the period of limitation for adverse possession bad started at least in the year 1948. 11. Besides the Counsel ought to have been aware that such a case is required to be made in the plaint. It cannot be raised for the first time in second appeal vide decision reported in Sheojiram v. Gulabchand1. There is no whisper of such a claim in the plaint alleged and as such that contention ought to fail. As regards the plea of adverse possession the written statement at Exhibit10 in the suit while contradicting the contents of paragraph 6 of the plaint refers to the site of the house having been given on a monthly rent of Rs. 2. It then recites the agreement with Keshaoprasad that the defendant. would be at liberty to build over the said site as owner and the price of the site was fixed at Rs. 850 which was allowed to be paid off by making payments from time to time over and above the rent agreed. It is further said that accordingly the structure was built, payment of Rs. 850 was made and the contesting defendant was dealing with the property as owner since the time he was let into possession. He denied the contention that the rent was originally Rs. 7 and came to be increased to Rs. 9 and thereafter to Rs. 10. It is further said that accordingly the structure was built, payment of Rs. 850 was made and the contesting defendant was dealing with the property as owner since the time he was let into possession. He denied the contention that the rent was originally Rs. 7 and came to be increased to Rs. 9 and thereafter to Rs. 10. In paragraph 11 of the written statement it is averred that the contesting defendant remained in possession in pursuance of the contract of sale with Keshaoprasad and paragraph 12 recites that the occupation of the defendant was in lawful possession, adverse to all including the plaintiffs. In this connection, it is said that the title of the plaintiffs was denied on 15·3-1948 when the reply to the application before the Rent Controller was lodged in R. C. No. 329/33/7/47.48. 12. In view of this averment, we do find the defendant maintaining a case of adverse possession against the plaintiff. Finer aspect of it harped upon by Mr. Junankar relates to the defendant not giving a specific day of the starting of that adverse possession. In this connection, he relied upon Jankiram v. Ghusya2 which makes it incumbent upon the person pleading adverse possession to state when the possession started becoming adverse. The observations appear to have been made in the context of a person claiming title by adverse possession when the trespasser did not know to whom the land belonged. According to that decision, there ought to be consciousness in the mind of the trespasser that the land belonged to someone else and he must prove that he had animus or intention to possess the land adversely to the owner. The written statement as it stands gives the date 15-3-1948 as the date from which the alleged adverse possession has started. In the course of argument, Mr. Chendke contended that the date could very well be July 1946 when according to him the accounts were made and Rs. 135 were paid by way of last instalment. 13. From the accounts maintained by the appellants right from year 1936·37 it is seen that on 20-11-1936 Rs.9 per month were debited in the name of the contesting defendant until 20-6-1938 when the debit entry is of Rs. 10 per month. There is no dispute that the last payment is of Rs. 13. From the accounts maintained by the appellants right from year 1936·37 it is seen that on 20-11-1936 Rs.9 per month were debited in the name of the contesting defendant until 20-6-1938 when the debit entry is of Rs. 10 per month. There is no dispute that the last payment is of Rs. 135 in July 1946 and thereafter there is no payment made on behalf of the contesting defendant The alleged claim put forward by the contesting defendant was taken as proved by both the Courts below looking to the circumstances of the case. Paragraph 15 of the judgment of the lower appellate Court relates to the appreciation of the oral evidence given by the contesting defendant on this aspect. That was not taken as satisfactory. However, on the construction of several documents, the learned Judge held that the agreement must have been entered into between the parties as alleged. At any rate the receipts for payment of Rs. 2 per month as rent were relied upon. It is in this context that we can look to the finding that the construction on the land must not have belonged to the appellants' family. Not only the figure of only Rs. 2 per month as rent is supporting that aspect, but the oral evidence shows that the structure purchased by the ancestors of Keshaoprasad in 1902 was in dilapidated condition and Keshaoprasad was interested in the site only. Correspondence with the Corporation of the year 1944, particularly the notice Exhibit-95 shows that the appellants were not looked upon as the owners of the house standing thereon. It appears that the structure was not very big, but a small construction with a roof of tin-sheets. Mr. Junankar for the appellants could not show any convincing evidence going against the inference that the construction must have been put by the contesting defendant. The only case he made out in this connection was regarding the non-proof of the receipts under section 67 of the Indian Evidence Act. That, however cannot enure in favour of the appellants. There is an admission in paragraph 7 of the plaintiffs in the plaint that the Munims engaged for collection of rents were passing receipts of Rs. 2 per month, though the recovery was of more amount. This by itself without any document would be sufficient to hold the case of the contesting defendant that Rs. There is an admission in paragraph 7 of the plaintiffs in the plaint that the Munims engaged for collection of rents were passing receipts of Rs. 2 per month, though the recovery was of more amount. This by itself without any document would be sufficient to hold the case of the contesting defendant that Rs. 2 per month was the rent. Apart from that such a finding has been given not only by the authority constituted under the Rent Control Order, but also in the earlier suit which was between the same parties and the issue was in respect of the rent. The appellants cannot, therefore, resist the conclusion that the rent per month was Rs. 2. 14. It is on this background that the case of the defendant when the alleged payment of Rs. 850 is made is approached by the two Courts below. By July 1946 nothing more than Rs. 288 could have been due for the rent whereas the admitted payment was of more than Rs. 1,250. This circumstance alone has impressed the Court to hold that the agreement as alleged is proved. It may, however, be noted that the evidence of the nature discussed would show that there was some transaction between the parties over and above the payment of rent for the land, the structure was put up by the lessee and that the payment far in excess of the rent was received by the lessors. Unless the bare word of the contesting defendant is believed, there is no indication to show whether the amount was Rs. 850 or anything else and it may appear that there is no evidence to show that on the payment allegedly made in July 1946 by way of last instalment, the lessors' side was satisfied of the completed transaction. The evidence only shows that since that date, there is non-payment of any type on behalf of the contesting defendant. 15. Before going to the question as to which article in the circumstances of the case would apply, we shall be to dispose of the contention raised by Mr. Junankar on the score of section 54 of the Transfer of Property Act. That section speaks of a sale of immovable property worth more than Rs. 100. 15. Before going to the question as to which article in the circumstances of the case would apply, we shall be to dispose of the contention raised by Mr. Junankar on the score of section 54 of the Transfer of Property Act. That section speaks of a sale of immovable property worth more than Rs. 100. Unfortunately, however, it looks to have been ignored that the contesting defendant is not putting forward a case of a completed sale on the date the plot was taken on lease. Obviously payment of rent continued for a number of years. There was also the intermittent payment in excess of the rent. There is no evidence to show whether there was any outside period during which such alleged payment was to be completed. With these elements the alleged contract would only amount, as has been pleaded on behalf of the contesting. defendant, to be an agreement for the sale of land, on the completion of the agreed extra payment. The contesting defendant was entitled to get a conveyance in his favour regarding the site which apparently was worth more than Rs. 100 and which conveyance therefore could not have been except in writing registered. When the Courts-below have considered the evidence for finding out whether any such agreement was reached, I am unable to trace any error either of law or procedure. In other words, the position obtainable is that an agreement for extra payment presumably towards acquiring of that land was arrived at. Accordingly excess payment has been made and in case such payment was in compliance with the agreement, the contesting defendant ought to have become the owner of the land, but that too on getting the registered sale deed. 16. At this stage only it may be pointed out that the question of section 53A of the Transfer of Property Act intervening does not arise because the agreement is not in writing and for the purposes of section 53A a writing is a sine qua non. The position, according to me, therefore, was a flexible position whereunder the contesting defendant claiming to have completed his part of the contract was entitled to get a specific performance inclusive of the title deed in his favour, but in fact there was no such title deed. 17. The position, according to me, therefore, was a flexible position whereunder the contesting defendant claiming to have completed his part of the contract was entitled to get a specific performance inclusive of the title deed in his favour, but in fact there was no such title deed. 17. It is on this background that the question of adverse possession alleged and the article applicable to this case arises. On behalf of the contesting defendant emphasis is laid on the fact that since July 1946 there was complete non-payment. This is construed on the background that all payment due was made over and Mr. Chendke also relies upon the oral statement of his client showing that Sheoranibai, the guardian was intimated that the contesting defendant has since then become the owner. He, however, could not show that Sheoranibai on her part was also satisfied in turn indicated or admitted that position. On the contrary, right from the year 1947, we find the family of the appellants trying to oust the contesting defendant. In November 1947 permission was asked of the Rent Controller for sending a quit notice; getting unsuccessful in appeal allowed by the Deputy Collector, the suit for collection of rent was filed and it is worthwhile to see that the period of non-payments starts from 20th of June 1946 as recited in paragraph 8 of the plaint in this suit. That suit was decided in the year 1953. Although there is a hiatus of about 5 years, from 1958 onwards again the contesting defendant is proceeded against by giving a notice of forfeiture and lodging the present suit. 18. Exhibit-92 is the written statement filed by the contesting defendant Sitaram on 15-3-1948 before the Rent Controller, Nagpur. A copy of it is found in the supplementary paper book Phraseology of this written statement was much under discussion. In sub-paragraph (2) of paragraph 1, the non-applicant present contesting defendant made out a case that the site belonged to the applicant and the house belonged to the non-applicant. The case that the contesting defendant constructed the house looks to have been made out. A reference is made to a Kirayapatra (rent note) executed by the non-applicant and his brother together and it is said that it was in respect of the site alone. The case that the contesting defendant constructed the house looks to have been made out. A reference is made to a Kirayapatra (rent note) executed by the non-applicant and his brother together and it is said that it was in respect of the site alone. Then follows the sentence "The non-applicant being simply the tenant of the open site and not of a house this Court cannot entertain the application". Obviously the jurisdiction of the Rent Controller is challenged by indicating that the dispute was only in respect of the open site. Referring to the nonpayment of rent, the paragraph 2 of the written statement runs as follows: "It is submitted that the non-applicant stopped the payment of Tent because the dispute as regards the ownership of house and site arose. The non-applicant reserves his further statement to be filed when the disputes in respect of the ownership of the site and house will arise in the Civil Court. For the present the non-applicant submits that he was the tenant of site and hence this Court has no jurisdiction to entertain the application." These are the only averments available to Mr. Chendke for contending that the plaintiffs' title to the land was repudiated. On the plain reading of these statements impression is gained that there was a dispute regarding the ownership of house and site. What was exactly the nature of that dispute is not made clear. Whether the dispute was only in respect of the house the claim of which was not admitted by the applicant is not clear, nor is it clear from the words used in the averments that so far as the contesting defendant was concerned by then the full payment was made and that he had started claiming full ownership. It is not only that the agreement as is pleaded in the suit of the year 1958 or in the present suit is not found, but there is nothing to show that the terms of that agreement and the part to be done by the applicant was complete. I am not, therefore, able to 100k into this a clear repudiation of the title of the appellants as regards the open site. It is otherwise so far as the suit of the year 1951 or the reply to the notice given in 1958 or the written statement of the present suit. I am not, therefore, able to 100k into this a clear repudiation of the title of the appellants as regards the open site. It is otherwise so far as the suit of the year 1951 or the reply to the notice given in 1958 or the written statement of the present suit. The case of the respondent No. I regarding adverse possession by disclaimer of title has to be understood initially on the alleged last payment in July 1946, then in the statement as discussed in details of 15-3-1948 and thereafter the specific averments in the written statement of the 1.951 suit and of the present suit. 19. Mr. Junankar on behalf of the appellants relied upon the decision reported in Lakhamgowda v. Jambhus. In this case the plaintiff had sued to recover possession of certain lands from the defendants alleging that they were his tenants. The defence was that the defendants were holding the lands as tenants under a permanent lease. They had relied upon a certain document. The observations relied upon by Mr. Junankar are found at page 384, column 2, which run as follows: "The plaintiff here sued as a landlord who had put an end to a tenancy by a notice and in their defence the defendants did not deny that they were tenants and did not deny that they had received a notice. The suit clearly was framed as a suit between a landlord and tenant. Article 139 applies to a suit by a landlord to recover possession from a tenant and the terminus a quo is the date on which the tenancy was determined. This is the specific article for a suit between landlords and tenants and must be used in all suits of that nature, in preference to Article 144 which is a general article. It follows that the question in such a case is whether the lease has been put an end to within 12 years of suit, and not whether there has been adverse possession." Article 139 of the Indian Limitation Act, 1908 speaks of a suit by a landlord to recover possession to be brought within 12 years when the tenancy is determined. As against this Article 144 was applicable to the suit for possession of immoveable property to be brought within 12 years when the possession of the defendant became adverse to the plaintiff. As against this Article 144 was applicable to the suit for possession of immoveable property to be brought within 12 years when the possession of the defendant became adverse to the plaintiff. The whole debate was thus concerned, as it is also concerned in the present appeal, in showing whether under the Article 139 the determination of the tenancy should be first established which alone would be the starting point for possession of the tenant against the interest of the landlord or whether there could be adverse possession started irrespective of the determination of the tenancy thereby implying the possible starting of the adverse possession during the currency of the tenancy. The Bombay case in no uncertain terms says that Article 144 is the residuary article and when, therefore, there is relationship of landlord and tenant Article 139 ought to apply. 20. Mr. Junankar also relied upon the decision reported in Sidram Lachmaya v. Mallaya Lingaya4. That was a full bench decision on an order of reference made by Bavdekar J. The dispute was in respect of a house which was sold to the defendant while the vendor himself had remained in possession of a portion of it on passing rent note. The facts regarding the possession were little complex so far as the other portions of the house were concerned and the law point discussed in the case was arising on the basis of the possession of the vendor in respect of that portion for which he had passed a rent note and the plaintiff-vendor in respect of it had described himself the owner claiming that he was in adverse possession to the vendee who was otherwise the true owner. Two questions that were framed for the decision of the Full Bench were as follows: "(1) Whether the possession of a tenant is adverse to the landlord upon the expiration of the tenancy merely because the tenant has not paid rent? (2) Whether to a suit based upon title by a landlord against his ex-tenant Article 139 is the Article which applies or Article 144 ? " The second question was answered indicating that Article 139 applied and in that view of the matter the first question was held to be not arising. (2) Whether to a suit based upon title by a landlord against his ex-tenant Article 139 is the Article which applies or Article 144 ? " The second question was answered indicating that Article 139 applied and in that view of the matter the first question was held to be not arising. In paragraph 8, the observations of Chagla C. J., are as follows: "Now, there can be no doubt that on the determination of the tenancy on 11th June 1925, the plaintiff became a tenant at sufferance, if we might make use of an English expression, or a trespasser. Although his possession was originally lawful, and he entered by lawful demise, at the termination of the tenancy his possession became wrongful and he became a trespasser. Therefore, on the determination of the tenancy the right would arise in the landlord to recover possession from him of the property and the period of limitation would be governed by Article 139, Limitation Act." The argument in favour of application of Article 144 was turned down in the following words appearing at the end of paragraph 9 which are as follows: "The point from which limitation begins to run is the determination of the tenancy, and once the tenancy is determined, it is immaterial and irrelevant to consider what is the character in which the ex-tenant continues to remain in possession." 21. Among the decisions noted and considered by the Full Bench is the decision in Ichalal v. Nago5. In that suit the plaintiff had purchased a half share of property from his vendor. The vendor had executed a rent note in respect of that half share and remained in possession. Subsequently along with the other co-owners that half share was also sold by the vendor to the defendant. The suit was filed by the plaintiff for joint possession. That the interest of the other co-owners had devolved upon the defendant was not disputed, but there was the question of interest sold by the plaintiffs' vendor which he was holding from the plaintiff under the rent note. Discussion in paragraph 14 of the report shows that the suit was held to be within time as governed by Article 144 and not by Article 139. Discussion in paragraph 14 of the report shows that the suit was held to be within time as governed by Article 144 and not by Article 139. As however the learned Chief Justice explains: "It will be noticed that Sir Normal Macleod expressly states in his judgment that the plaintiff was litigating his right as a tenant-in-common against the defendant who was the successor-in-title of his vendor" and the conclusion runs as follows : "Therefore, this decision on the very special facts on which it was decided does not in our opinion lay down a principle contrary to what has been laid down in the earlier decision, viz., that in a suit between a landlord and a tenant the proper article that applies is not Article 144 but Article 139." It was thus not taken as a suit between the landlord and tenant. 22. Justice Bavdekar has elaborated on the same subject. This is what is stated : "The defendant's case was that he was before the Court in two capacities. First of all he was the purchaser of the interest of the other co-owners. To the extent that he was the purchaser of the interest of the other co-owners he bad no defence whatever to the suit. As the purchaser of the interest of the other co· owners he had to concede that the plaintiff or his vendor was entitled to joint possession along with him. But the defendant was also the representative of the plaintiff's vendor who became the plaintiffs tenant after the sale and said that the plaintiff lost whatever interest he had inasmuch as the tenancy in favour of the vendors had expired on 22nd August 1904. But the defendant was also the representative of the plaintiff's vendor who became the plaintiffs tenant after the sale and said that the plaintiff lost whatever interest he had inasmuch as the tenancy in favour of the vendors had expired on 22nd August 1904. Subsequently on 5th March 1913, the property was sold by the vendors along with the other co-owners to the defendant and he said that if the suit had been filed for possession by the plaintiff against the vendors, or against a subsequent purchaser from them who was a stranger the suit would have been barred under Article 139 because the suit would be a suit against a tenant or a purchaser from the tenant and the proposition which has not been established is that Article 139 applies not only to a tenant but also to a person who is representative of the tenant, it may be by purchase, it may be otherwise." The passage of Justice Fawcett is cited with approval. It is as follows: "In this suit the plaintiff stated his claim to recover joint possession of the plaint properly not as a landlord, but as an owner and although he does mention that the land was leased to the defendant's predecessor· in title, yet his claim was clearly brought on the basis of his title as owner." Bavdekar J. in agreeing with the Chief Justice has observed as follows: "The argument was exactly the same as is addressed to us by Mr. Sukthankar that Article 139 applies only when the suit against the tenant is not based upon title. With that argument we are unable to agree." 23. This thus high-lights the cases when the suit is expressly brought as between the landlord and the tenant and the ratio of the decision shows that Article 139 is applicable. When Article 139 of the Indian Limitation Act, 1903 is to be applied, question arises as to when in the present case the tenancy could have been taken as terminated. Determination of a lease has been laid down in section 111 of the Transfer of Property Act. It contemplates contingencies as (a) to (h). When Article 139 of the Indian Limitation Act, 1903 is to be applied, question arises as to when in the present case the tenancy could have been taken as terminated. Determination of a lease has been laid down in section 111 of the Transfer of Property Act. It contemplates contingencies as (a) to (h). We will have to address ourselves in finding out whether the present tenancy between the family of the appellants and the contesting defendant was in any way terminated by about 1946 or 1948 in which case alone the contesting defendant would be able to non-suit the appellants-plaintiffs. So far as the appellants are concerned, it is urged that the tenancy continued till by the notice of forfeiture served in the year 1958 it was terminated. Until then there was no termination. The events such as going before the Rent Controller in the year 1947, filing of a suit in the year 1951 in a Civil Court and serving the notice in 1958 go to support that stand. The contesting defendant has to show how the tenancy ended or how exactly it was terminated in 1946 or 1948 so that as is claimed by Mr. Chendke possession of the defendant became adverse. 24. Mr. Chendke sought to distinguish the two decisions reported in Lakhamgowda v. Jambhu and Sidram Lachmaya v. Mallaya Lingaya (cit. supra) by says that these decisions do not apply when there are some intervening events, as our case alleged to have taken place in the year 1946. He thus suggests that by reason of the making of accounts in the year 1946 and presumably, therefore, by completion of his part of the contract, the tenancy was terminated. I feel such a position is not available to him. No document even of the alleged contract is before us. There are no specific terms which would show that on payment of the amount the tenancy would cease. It will have to be implied and in case Mr Chendke is desirous of taking such an advantage, he must counter not only the difficulty of the absence of any specific evidence, but also of the Jack of evidence to show that the character of possession changed. It will have to be implied and in case Mr Chendke is desirous of taking such an advantage, he must counter not only the difficulty of the absence of any specific evidence, but also of the Jack of evidence to show that the character of possession changed. It was his own case and rightly so made, that excess payment was towards an agreement and not towards the completed sale, but that itself, therefore, would show that merely on making the full payment under that agreement, be bas neither acquired the title nor is he in a position to take advantage of section 53A of the Transfer of Property Act in order to contend successfully that any event as contemplated under section 111 of the Transfer of Property Act took place which has terminated the tenancy. Apart from the fact, therefore, that the written statement filed in 1948 does not appear to me to be a clear repudiation of the title of the appellants, the evidence led in respect of the agreement is also short on this aspect. The Courts below were rightly influenced by the excess payment, but the evidence was far too short to show any agreed position between the two parties, the lessor and the lessee or the owner and the vendee having obtained in June 1946 which could be looked upon as terminating the tenancy. 25. It need not be conceived that there was automatic change in the character of possession. In the case reported in Thakurdas v. Shobhachand6, a change in the character of possession without any actual delivery has been conceived. However, the case is in respect of a sale of immovable property of the value of less than Rs. 100. There was oral sale and the case was remanded for obtaining specific findings for showing whether the two parties had agreed that such a change in character of possession should take place. The contesting defendant has only spoken of intimating Sheoranibai, the second defendant, guardian of the appellants regarding the payments made as required. There is, however, nothing to show that at that time Sheoranibai also in her turn agreed to look upon him as owner i.e. to say the possession he had so far as tenant was admitted as being of different nature in the right of ownership from that day onwards. 26. If that is so, I do not think Mr. There is, however, nothing to show that at that time Sheoranibai also in her turn agreed to look upon him as owner i.e. to say the possession he had so far as tenant was admitted as being of different nature in the right of ownership from that day onwards. 26. If that is so, I do not think Mr. Chendke's client can take advantage of the mere non-payment of rent since about July 1946. No authority is needed for the proposition that mere non-payment of rent does not create any adverse possession. Such a proposition is found laid down in Jagdeo v. Baldeo7. 27. In view of this discussion, Article 139 of the Limitation Act would apply and there is no evidence to show that the tenancy which existed between the present appellants and the contesting defendant had come to an end before the year 1958. Article 139 applies as is pointed out in the Full Bench decision report in Sidram Lachmaya v. Mallaya Lingaya (Supra) when the suit is filed against an ex-tenant. On the facts discussed above, the first respondent ought to fail. Looking at the case even purely from the point of adverse possession pleaded, it would be difficult to hold on the facts that there was repudiation or that the material available is sufficient to start any adverse title. A glance at the decision reported in Chhaikuddin v. Ramnarayan8, would be sufficient. The proposition which is laid down is as follows: "If a tenant is in possession of land and the landlord has not the immediate right of re-entry any assertion by the tenant would not make time run against the landlord for the reason that the landlord cannot claim any redress so long as he is not entitled to get possession of the land. To hold that whenever the tenant asserts a right which he did not Possess, it is the duty -of the landlord to repudiate such right, would be to drive the landlord to have recourse to Courts of law almost every day merely because the tenant has chosen to assert a right which he does not possess. The real circumstance which makes the law of limitation run against the landlord is that he is entitled to possession." 28. The two Courts below have, therefore, clearly erred in allowing the contention of the first respondent. The real circumstance which makes the law of limitation run against the landlord is that he is entitled to possession." 28. The two Courts below have, therefore, clearly erred in allowing the contention of the first respondent. On the application of Article 139 and on the facts discussed, the suit filed by the plaintiffs for ejectment against the first respondent, so far as the plot of land is concerned is not barred by limitation though of course the claim regarding the house cannot at all be entertained. The decree passed by the Court below will have, therefore, to be modified. The appellants will not be entitled to the possession of the house. The heirs of the first respondent would be at liberty to remove the structure. 29. As regards the mesne profits upto the date of suit and future mesne profits, it is clear that a payment amounting to Rs. 1,250 or 1.270 is made when per year the rent due is Rs. 24. I think there should, therefore, be no order regarding the past or future mesne profits. Hence I pass the following order. 30. The appeal is partly allowed. The appellants are entitled to get possession of the suit plot of land. Respondent No.1's heirs do put them in possession. The heirs of the first respondent are given liberty to remove the house structure standing on the plot within 6 months from the date of this judgment. There will be no order as regards the mesne profits. Looking to the partial success of the claim in plaint, no orders as to costs. Appeal partly allowed.