Mariam v. Akbar Khan — 1977 DIGILAW 627 (ALL)

JUDGMENT B.N. Sapru, J. - This is a defendants' appeal arising out of a suit for ejectment and recovery of arrears of rent. The plaintiff's case was that Bashir Ahmad, defendant No. 2 was the owner of the house and he sold it to the plaintiff on 21.8.1952. According to the plaintiff defendant No. 1 was a sitting tenant and as he did not pay rent for more than three years the plaintiff served upon him a notice of demand dated 27.6.1957. Defendant No. 1 denied the plaintiffs' title and claimed to be the owner himself. Hence, the plaintiff claimed the ejectment of the defendant No. 1 and also for a decree for arrears of rent at the rate of Rs. 8/- per month. 2. Defendant No. 2. the previous owner filed a written statement stating that he had no concern with the house and that he bad been unnecessarily impleaded in the suit. 3. Defendant No. 1, the present appellant filed a written statement claiming that defendant No. 1 and his predecessor in interest had been in possession of the house for more than 30 years, and had established their title by adverse possession. Defendant No. 1 also denied the ownership of the plaintiff. 4. The trial court decreed the suit for ejectment on the finding that the plaintiff had lawfully purchased the house from the previous owner who was defendant No. 2. It was held that defendant No. 1 was not the owner and was not in adverse possession. It was found that defendant No. 1 was a tenant on a monthly rent of Rs. 4/- per month. The suit was, therefore decreed for ejectment and recovery of Rs. 144/- representing three years rent. 5. Defendant No. 1 filed an appeal. The lower appellate court held that the lease executed by defendant No. 2 in favour of the father of defendant No. 1 was for one year beginning from 1.4.1944 and was determined on 31.3.1945. It was held that the plaintiff had failed to establish that defendant no 1 was a tenant holding over after the determination of the original lease and a consequential finding was that defendant No. 1 was a trespasser with effect from 1.4.1945. It was found that the suit was filed on 22.8.1957, i.e. more than twelve years after the possession of the defendant No. 1 became adverse. It was found that the suit was filed on 22.8.1957, i.e. more than twelve years after the possession of the defendant No. 1 became adverse. It was, therefore, held that the suit was barred by the provisions of Article 139 of the Limitation Act. The suit for ejectment was, therefore, dismissed, but a decree for damages was granted for Rs. 125/- for the period 23.8.1954 to 31.3.1957 at the rate of Rs. 4/- per month. 6. The plaintiff preferred an appeal. The High Court remanded the case to the lower appellate court to decide the appeal afresh in the light of the observations made in the body of that judgment in the following words : "Before the lower appellate court, the defendant had given up the plea that the plaintiff was not the owner. The only question was whether the defendant continued to be a tenant. The finding that he was not a tenant holding over, has been challenged in this Court. The lower appellate court commented the observations on this point saying. "It is, therefore, to be seen whether defendant No. 2 had accepted or realised rent from the father of defendant No. 1 who was then a tenant-at-sufferance." The point of time with reference to which defendant No. 1 father was referred to was the, period commencing from 1.4.1945. The approach was self-contradictory. If the father of defendant No. 1 was a tenant on 1.4.1945, then the question would be whether he changed his status subsequently. That will not depend upon the defendant's paying refit or even the plaintiff-landlord's realising rent. Further, under section 116 of the Transfer of Property Act, a tenant holds over if he continues to remain in possession of the leased property on the determination of the lease. If in addition to that fact, it is established that the lessor either accepted rent from the lessee or otherwise assented to his continuing in possession, the lease stands renewed according to section 116 of the Transfer of Property Act. In this case, the tenant admittedly continued in possession after the determination of the lease. The only fact which had to be found was whether the landlord had accepted rent or otherwise assented to his continuing in possession. In this case, the tenant admittedly continued in possession after the determination of the lease. The only fact which had to be found was whether the landlord had accepted rent or otherwise assented to his continuing in possession. The appellate court has found that the plaintiff has failed to prove that either he or his predecessor, namely, defendant No. 2 accepted or realised rent from the father of defendant No. 1. But, this finding in itself would not be sufficient to dispose of the question whether the defendant was holding over. Under Section 116 of the Transfer of Property Act, the acceptance of rent is not the only basis for making a tenant hold over. Even without the acceptance of rent, if the landlord otherwise assents to his continuing in possession, the lease stands renewed. The appellate court has not adverted to this aspect of the case. There is no finding whether the landlord did or did not assent to the continuance of the tenant's possession. If it is found that the landlord did assent to such continuance, the lease would stand renewed according to the terms of the original lease, and the defendant would become a tenant holding over on the same terms. The case, therefore, deserves to go back for a finding on this point." 7. As a consequence of the order of remand the matter went back to the lower appellate court. Before the lower appellate court the parties did not either amend their pleadings or produced any additional evidence. The lower appellate court in its order observed that the appeal would be decided by it on the basis of the evidence already on record. 8. The lower appellate court, after the remand order, held that there was no evidence on the basis of which it can be held that defendant No. 1 paid rent to the landlord after the expiry of the lease deed in 1945. It has, however, held that from the facts of the case it may be inferred that the landlord had assented to the defendant's continuing in possession as tenant after the determination of the lease by efflux of time in 1945. It is further held that defendant No. 1 bad not set up adverse title in himself after the expiry of the lease and as such be continued to be a tenant of the premises in suit. It is further held that defendant No. 1 bad not set up adverse title in himself after the expiry of the lease and as such be continued to be a tenant of the premises in suit. On this finding the lower appellate court has dismissed the appeal and upheld the decree of the Munsif dated 14.5.1959, for the ejectment of the defendants and damages as assessed to him. 9. In this Court the learned counsel for the appellant has placed reliance on a decision of the Supreme Court in the case of Bhawanji Lakhamshi and others v. Himatlal Jamanadas Dani and others, 1972 R.C.J. 529. In that case the Supreme Court observed in paragraph 9 of its judgment as follows : "The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, AIR 1949 PC 124 , the Federal Court had occasion to consider the question the nature of the tenancy created under section 116 of the Transfer of Property Act and Mukherjee, J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or underlessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication ; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations : "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 tacit 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 more readily and clearly the implication of an agreement between the parties to create a fresh tenancy." 10. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy. In AIR 1961 Supreme Court 1067, this Court observed as follows :- "By the Rent Restriction Statutes at the material time, statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory prohibition imposed upon the Courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee continuing in possession". Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. 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. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the stature provides otherwise, be conditioned." In this paragraph the Supreme Court has drawn distinction between the status of a tenant who continues after the determination of a lease as a tenant on sufferance and a tenant holding over. It has been held that in view of the concluding words of Section 116 of the Transfer of Property Act a lessee holding over is in a better position than a tenant at will.- The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term is over and on the other side there must be a definite consent to the continuance of his possession by acceptance of rent or otherwise. This case will not help the appellant as it has been held by the lower appellate court on the facts of the case that it can be inferred that the landlord consented to the continuance of the possession of the tenant otherwise than by way of acceptance of rent, which the plaintiff failed to prove. 11. The next case relied upon by the learned counsel for the appellant is a Single Judge's decision in the case of Amir Chand v. Sadhoo Ram and another, 1968 A.W.R. 641. In that case it was held, following an earlier decision of a Division Bench in the case of Bisheswar Nath v. Kundan and others, (1922) 20 A.L.J. 593, that "where the plaintiff had leased his premises to the defendant for three years, and the defendant had after the expiry of the period remained in possession for more than twelve years with out paying any rent, the suit for ejectment after the expiry of twelve years of the expiry of the lease was time barred. In the copy of the judgment there was reference to the Addition'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 landlord's right of entry is barred by statute, and the tenant became the absolute and complete owner of the property." 12. In view of this decision and of another decision of the Allahabad High Court in the case of Bilas Kunwar v. Deshraj, ILR 37 Allahabad 557, it was submitted by the learned counsel for the appellant that the suit for ejectment was barred by the provisions of section 139 of the Limitation Act, 1908. In view of this decision and of another decision of the Allahabad High Court in the case of Bilas Kunwar v. Deshraj, ILR 37 Allahabad 557, it was submitted by the learned counsel for the appellant that the suit for ejectment was barred by the provisions of section 139 of the Limitation Act, 1908. In the instant case, when the defendant appellant's appeal was pending in the lower appellate court an application to amend the memorandum of appeal was filed. The amendment sought was to the effect that the defendant appellant did not contest the plaintiff respondent's title to the property in dispute. Paragraph 2 of the memorandum of appeal originally read as follows : - "That it is proved that the plaintiff is not the owner of the house in dispute and that the appellant-defendant is not the tenant of it. There is no relation between the parties of landlord and tenant." The words, "it is proved that the plaintiff is not the owner of the house in dispute and that, "were deleted. Similarly paragraph 7 of memorandum of appeal ran as follows :- "That the judgment of the learned lower court is otherwise irregular- inasmuch as it has been proved that the defendant appellant is the owner of the house." The words "in as much it has been proved that the defendant appellant is the owner of the house." were deleted. 13. As soon as the tenancy of the defendant appellant determined in 1945 they became tenants at will. However, according to the finding of the lower appellate court the landlord assented to the continuance of the defendant appellant as tenants and the defendant appellate did not assert that they were continuing in possession as trespassers or that they were not recognising the right of the original landlord or the plaintiff respondents who are transferees from the original landlord. The finding of the lower appellate court in the circumstances of the case, is a finding of fact which is binding upon me in second Appeal, and has to be accepted. 14. In the result, the appeal fails and is dismissed with costs. The interim order dated 26.11.1976 is vacated.