Mitharam vs Deochand

T.C. Shrivastava, J.—The suit out of which this second appeal arises was filed by the appellants for recovery of possession of a house and arrears of rent from the respondent. The suit was decreed by the trial Court, but it has been dismissed by the lower appellate Court.

The plainiff appellants alleged that the house in suit belonged to their father Pandu (deceased) who have leased it to the defendant in 1918 on rent at Re. 1/ per month and then in 1920 and 1922 at Rs. 2/- per month. It was also alleged that after the expiry of the lease granted in 1922, an oral agreement took place on 20-6-1923 between Pandu and the respondent that he would continue as a tenant at Rs. 2/- per month. Plaintiffs gave a notice to the respondent on 13-10-1955 to vacate the house by 19-11-1955; but the defendant failed to do so. Accordingly, the suit was brought for possession of the house and for recovery of arrears of rent for three years.

The defendant pleaded that the house was not taken at any time on rent by him from Pandu or the plaintiffs. He stated that the house was purchased by him in 1918, but the sale deed was executed in the name of plaintiffs'' father Pandu benami; that he never paid any rent to Pandu; and that the rent-notes, dated 17-6-1918 (Ex. P-2) and 29-6-1920 (Ex.P-4) were executed in favour of Pandu nominally to save the property from the creditors.

Both the Courts below have found that Pandu was not the benamidar of the defendant and that the rent-notes of 1918 and 1920 were genuine documents. These findings are now binding on the parties in second appeal.

The trial Court found that the defendant was a tenant of the appellants and the tenancy was validly terminated by the notice. The claim was, therefore, decreed for ejectment and arrears of rent. The lower appellate Court, however, found that although the defendant was initially a tenant of the plaintiffs'' father Pandu, that tenancy terminated in 1923. Thereafter, there was no fresh tenancy and the suit was therefore barred under Article 139 of the Limitation Act.

Shri V.S.Pandit for the appellants contends that once the relationship of landlord and tenant had been established between the parties, it was not open to the defendant to deny the title of the landlord, Accordingly, even if no rent was paid and there was no fresh contract of tenancy, still the defendant continued as a tenant. Particular reliance was placed by him on the following observations in Ramlal vs. Chetu `.

The possession of a tenant is permissive and unless he can prove that he had disclaimed the title of his landlord openly and to his knowledge for more than 12 years, he cannot claim adverse possession against the landlord. The mere fact that he stopped paying rent at some subsequent time would not be enough to show that he had started possessing adversely to his landlord.

These observations have no application to the present case, as the tenancy created by Ex. P-5, dated 30-6-1922, was only for 11 months and the lease came to an end by efflux of time. The burden of proving that the tenancy had terminated within the meaning of Article 139 of the Limitation Act lies on the tenant; but in the instant case this is discharged by Ex. P-5 which has been produced by the plaintiffs.

Section 116 of the Transfer of Property Act cannot be relied upon by the appellants to press the contention that the tenancy continued. For the application of that Section, one of the two conditions must be satisfied, namely, either the landlord should have accepted the rent from the lessee, or should have assented to his continuing in possession as a tenant. It is only on showing that one of these two conditions has been satisfied that a presumption regarding the tenancy being continued from month to month can arise. As neither of these conditions has been satisfied in the instant case, there is no substance in the contention that the defendant continued as a tenant after 1923. The Courts below have come to the conclusion that the oral agreement of lease which is alleged by the plaintiffs to have taken place in 1923 has not been proved. Nor has it been proved that the defendant paid rent to the plaintiffs at any time after 1923. These are findings of fact. But Shri V. S. Pandit for the appellants contends that the lower appellate Court has not appreciated the evidence properly. He has particularly referred to paragraph 16 of the judgment of the lower appellate Court. But the observation therein only means that there is no evidence to show that any rent was paid from 1922 till the death of Pandu which occurred in 1940. The statement of Ram Chandra (P.W.4), who said that rent was paid 8 years ago, has been expressly referred to in paragraph 11 of the judgment; but as the discussion in paragraph 17 would show it has not been accepted as true. The lower appellate Court found the evidence on the question of payment of rent unsatisfactory and, after discussing the question in detail, concluded that the plaintiffs had failed to prove that fact. I see no reason why that finding of fact should not be accepted in second appeal. Article 139 of the Limitation Act provides for a limitation of 12 years in a suit "by a landlord to recover possession from a tenant". The starting point of the limitation is "when the tenancy is determined". For the application of this Section, it is not necessary that the tenant should claim adverse title to the landlord. All that is necessary is that the tenancy should have come to an end. Of course, if it is deemed to be continued u/s 116 of the Transfer of Property Act, the limitation provided by this Article will not start. However, in the instant case, the tenancy was definitely determined in 1923 (Ex. P-5). No rent was paid after that date; nor did the parties agree to the status of landlord and tenant being continued between them. Accordingly, the lower appellate Court was right in holding that Article 139 of the Limitation Act applied to the case and the plaintiffs'' right to eject the defendant became barred by limitation of 12 years after the determination of the tenancy.

In the result the appeal is dismissed with costs.