Dharani Baid vs Sadhu Charan Ram Biswakarma

Sarjoo Prosad, C.J.—This appeal arises out of plaintiff''s suit for evicting the defendant from a piece of land appertaining to holding No. 148 of Ward 4 of Nowgong town. The defendant was admittedly let into occupation of the land under a registered lease dated 12-9-1927 on an annual rent of Rs. 24/-. The lease was for a period of three years and on its expiry plaintiff''s case is that the defendant continued to be in possession on payment of rent to the plaintiff. A notice for ejectment of the defendant was duly served and the suit was instituted.

The defendant admitted having taken the land on lease for a period of three years under the registered document in question. But he set up a case of oral purchase on the expiry of the term of the lease and possession in his own rights as such by virtue of the purchase. The defendant thus denied the relationship of landlord and tenant between the parties and raised other pleas of misjoinder and nonjoinder of parties and invalidity of the notice to quit. He also took the plea that the suit was barred by limitation under Article 139, Limitation Act.

Both the Courts below have found in favour of the plaintiff so far as the plea of misjoinder or nonjoinder is concerned. The Courts below also disbelieved the question of purchase set up by the defendant. The trial Court however found that there was no relationship of landlord and tenant, that the notice to quit was invalid and that the suit was barred by limitation under Article 139, Limitation Act.

The lower appellate Court has affirmed these findings. The main question involved in this appeal is whether the relationship of landlord and tenant-subsisted between the parties, even after the expiry of the registered lease and whether the suit was barred by limitation under Article 139, Limitation Act. There is also the other question whether the notice to quit served on the defendant is valid.

It is contended on behalf of the appellant that the Court below has not applied its mind to the material evidence in the case in coming to its finding that the relationship of landlord and tenant did not subsist between the parties and that Article 139 Limitation Act had no application to the case. It has been also urged that the notice to quit was a valid notice. On the question of relationship of landlord and tenant the plaintiff adduced both oral and documentary evidence. He proved certain entries in his account books to show that there had been payment of rent by the defendant even after the termination of the period mentioned in the registered lease and therefore the relationship of landlord and tenant continued to subsist between the parties.

The earliest of the documents relates to an adjustment of account in the Khata of the plaintiff in 1990 Sambat. The case of the plaintiff is that the adjustment in question shows that a sum of Rs. 24/- has been paid towards the rent of the land and that the two Courts below committed serious errors or record in treating even these payments as on account of commercial transactions and not towards rent. This adjustment is evidenced by two documents Exs. 6 and 7. The lower appellate Court has not disbelieved the entries in these account books but has not relied upon them on certain grounds which are prima facie erroneous. The Court observed that the lease Ex. 1 was executed on 12-9-27 for three years at the rate of Rs. 24/- per annum.

He concludes that on this basis, in 1933 which corresponds to 1990 Sambat, the arrear of rent would come to Rs. 144/-, if there was no payment at all during the six years. To this sum if another sum of Rs. 30/- were added by way of interest, then the total dues would come to Rs. 174/- only whereas Ex. 6, the Khata account shows that the arrear till 1990 Sambat was a sum of Rs. 271/8/-. On this (sic) the learned Subordinate Judge infers that the acknowledgment in the account did not relate to the rent paid by Sadhucharan but it related to tome other commercial transaction between the two firms of "Jowarmall Jeskaram" and "Sadhu Charan Arghanan".

The above observation ignores the entries in the accounts themselves. The Khata Ex. 6, shows a credit entry of Rs. 127/8/-. The debit entry consists of two figures of Rs. 217/8/- with reference to p. 76 of the Khata and Rs. 54/- with reference to p. 51 of the Khata, totalling Rs. 271/8/- which after setting off the amount on the credit side leaves a balance of Rs. 144/- payable by the defendant to the plaintiff as acknowledged and signed by the defendant. Now the corresponding entry in Ex. 7 at p. 51 of the Khata which gives details of the amount of Rs. 54/- mentioned in Ex. 6 shows appropriation of Rs. 24/- towards the rent of the Golaghar.

If the Court below had examined the details in the document carefully, it would have been obvious by reading of the two together that there was payment of a sum of Rupees 24/- on the date of adjustment towards rent or at any rate that was acknowledged to be so. The other entries may have been payments in kind towards the rent as explained by the plaintiff in his evidence. But even if that part of his case is not accepted, the entry of the sum of Rs. 24/- towards the payment of rent could not be ignored. The plaintiff then relied upon two other entries in the account books Exs. 2 and 3. The Khata entry Ex. 2 shows payment of a sum of Rs. 10/- towards rent in Falgun 1993 Sambat corresponding to 6-3-1936.

The learned Subordinate Judge has not specifically dealt with these entries. Except noting the arguments of the plaintiff on the point, he appears to have come to no finding on these documents. He threw them overboard presumably because ho felt unable to act upon Exs. 6 and 7 the earlier entries for reasons already discussed by mo above. Then the plaintiff also relied upon Exs. 4 and 5 which are late to Aghan 1999 Sambat where also it was alleged that a sum of Rs. 20/- was paid towards rent. The entry of course does not specifically mention that the payment was towards rent but there is the oral evidence of the plaintiff on the point.

If all these entries are considered in the light of the oral evidence adduced by the plaintiff, there is little doubt that the defendant had paid, from time to time, rent for the occupation of the land In question. I find no discussion of the oral evidence in the judgment under appeal. Whether the entire rent had not been paid is not material. The only point which was essential to consider is whether even alter the expiration of the period given in the lease the relationship of landlord and tenant subsisted between the parties.

The evidence given on the point does bear out the case of the plaintiff that the relationship had subsisted and that rent had been from time to time paid by the defendant to the plaintiff.

Unfortunately the lower appellate Court does not appear to have examined these materials independently for himself and seems to have accepted all that the learned Munsiff observed in regard to those documents. Both the Courts below apparently erred in assuming that the entries aforesaid related to some other commercial transaction on assumption contrary to some of the specific entries themselves. The Courts below therefore entirely misdirected themselves on the evidence and the appellate Court does not appear to have appraised all that evidence independently.

One observation which the learned Munsiff makes in this connection is that the transactions which have been shown by the plaintiff from his account books are in the name of the firm ''Sadhu Charan Arghanan'' which is the name of the firm of the defendant. The learned Munsiff thinks that because the name of the firm appears therefore the evidence was of no value in determining the relationship of landlord and tenant between the plaintiff and the defendant, the tenancy being in the personal capacity of the defendant.

The entries as I have shown above may be with reference to the plaintiff''s firm or the defendant''s firm. But even then the payment of rent by the defendant may relate to the land of which the defendant was in occupation, and the case of the plaintiff should not have been thrown out merely on that account without carefully examining the entries themselves as also the oral evidence bearing on that point.

Another reason which the learned Munsiff has given is that even if it were assumed for the sake of argument that the amount mentioned in Ex. 3 was towards rent for the suit land corresponding to 6-3-3936, there being no payment towards rent thereafter, the suit would be barred by limitation.

He also suggests that the amounts mentioned in Exs. 4 and 5 if taken to have been paid towards rent on 8-10-1942 corresponding to Sambat 1999, they must be assumed to have been adjusted towards old arrears and in that event also the suit would be barred by limitation. I am unable to accept these reasonings as legally tenable. The point was not whether all the arrears of rent had been paid and how the payments of rent had been adjusted; but the point was whether even after the expiry of the lease the relationship of landlord and tenant subsisted between the parties. The learned Munsiff appears to have lost sight of this point in dealing with the question of limitation.

It has been urged on behalf of the respondent that the period given in the lease having expired by efflux of time after three years, time began to run under Article 139, Limitation Act immediately from the date of expiry of that period. The argument assumes that on the efflux of time given in the lease, the tenancy itself was determined and the plaintiff had to sue the defendant for eviction within twelve years from that date, unless it was shown that the tenancy had otherwise continued to subsist. Much discussion prevailed at the bar as to when the tenancy terminated and the period from which limitation should begin to run under Article 139, Limitation Act.

Article 139 provides that in a suit by landlord to recover possession from a tenant, the suit should be within twelve years from the date when the tenancy is determined. The question arises therefore when does the time begin to run in other words'' when is the "tenancy determined". Now u/s 111 T.P. Act a lease of immovable property determines by efflux of time limited thereby. In this case the period given in the lease under which the defendant admittedly came into occupation of the disputed land was three years. Therefore the lease expired or to use the language of Section 111 "was determined by efflux of time" on the expiry of that period.

The question however still remains whether the tenancy itself was determined on the expiry of the lease or it continued to subsist unless proved to the contrary. u/s 116, Evidence Act the tenant would be estopped from denying the title of his landlord unless he surrendered possession, of the land to his landlord on which he was admittedly inducted under the registered lease in question. Besides his possesion should be attributed to a lawful title, unless it is proved to the contrary. Therefore the presumption arises in law that the possession of the tenant qua tenant continues even after the expiry of the period given in the lease if the tenant continues to occupy the land of which he got possession from his landlord, unless the tenant proved that he had at some stage repudiated his landlord''s title and thereby severed that relationship. Mere non-payment of rent even for any long period would not deprive the landlord of his rights to the land.

For these reasons it appears to me prima facie that in such cases unless the tenant definitely makes out as to when the tenancy was actually determined by repudiating his landlord''s title or otherwise, the burden to prove which would be on the tenant, it must be assumed that his possession of the land is in the capacity of a tenant. Therefore in order to take advantage of Article 139, Limitation Act it seems to me that it was for the tenant to prove when after the expiry of the lease the tenancy was in fact determined in order to make the plea effective against the right of the landlord to a suit in ejectment.

Mr. Medhi appearing on behalf of the respondent has directed our attention to a number of cases in support of his contention that the tenancy was determined on the expiration of the period given in the lease, and that being so the suit should have been instituted within twelve years from that date. He further contends that in order to avoid the running of limitation under the Article in question it was necessary for the landlord to show u/s 116, T.P. Act that the tenant held over within the meaning of that section.

Now Section 116 T.P. Act says that where a lessee or under-lessee remains in possession thereof after the determination of the lease granted to the lessee and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased.

According to the contention of the learned Counsel Section 116 requires either acceptance of rent from the tenant or otherwise assenting to his continuing in possession by the landlord. Mere possession of the tenant therefore according to his submission does not amount to holding over within the meaning of Section 116. He therefore argues that there must be some overt act on the part of the landlord showing that he had otherwise assented to the tenant''s continuing in possession or there should be definite evidence to prove that the landlord had accepted rent from the tenant. He points out that in this case the finding as to payment of rent was against the landlord and so far as his otherwise assenting to the defendant''s continuing in possession is concerned, there is no evidence on that point.

I do not consider it necessary to examine in detail at this stage the legal implications of the point urged by the learned Counsel before us, It seems to me that the question of otherwise assenting to the tenant''s continuing in possession can be proved by evidence and circumstances in the case as also by legal-presumptions. Presumption is also a mode of proof. ''Prima facie'' it appears to me that such an assent could be proved also by the presumptions arising out of Section 116, Evidence Act and the general presumption in law that the tenant''s occupation of the land has to be attributed to some lawful title unless it is proved or shown to be otherwise.

In any case here the learned Advocate appearing on behalf of the appellant has rightly contended that the adverse finding on the question of payment of rent could not be sustained in view of the errors of record committed by the two Courts below. I have already held that the Courts below did not carefully examine the entries in the various books of accounts which have not been found to be forged or otherwise unreliable by either of the Courts below, but have been discarded on grounds which are not sustained by the entries themselves.

That being so, we are inclined to hold that in this case acceptance of rent by the landlord from the defendant has been adequately (proved and therefore the bar of limitation under Article 189, Limitation Act does not arise in the case. The defendant is not entitled to rely merely upon the position that the period given in the registered lease had terminated, because it must be held that there was payment of rent even alter the determination of the period which proved the subsistence of the relationship of landlord and tenant between the parties.

That being so, even u/s 110, T.P. Act the defendant would be deemed to be holding over and the plaintiff was entitled to sue for ejectment of the defendant after giving a valid notice to quit. In the view which I have taken of the matter it is unnecessary to examine the various cases cited by the parties in support of their respective contentions on the application of Article 139, Limitation Act.

The next question which arises is whether the notice to quit is a valid notice. From the findings of the two Courts below it is clear that the lease was a lease from month to month terminable by fifteen day�s notice expiring with the end of the month of the tenancy. The month of the tenancy in the case began on the 12th of each month. The notice Ex. 20 purported to ask the defendant to quit with the end of 13-9-1950. There is no independent discussion of the matter by the Courts below; but the trial Court appears to have held that because a new month of tenancy commenced on 13-9-1950, therefore the notice to quit was not valid as required by law.

Under Section 110, T.P. Act the date from which the tenancy commences is to be excluded in computing the period of limitation. That being so, the 12th of the month had to be excluded from computation and the notice served in this case would J be quite in order.-- AIR 1932 279 (Privy Council) It should be therefore held that the notice to quit was a valid notice.

The decisions of the Courts below therefore have to be set aside. The appeal is allowed. Plaintiff''s suit is decreed but in the circumstances of the case we will make no order as to costs.

Deka, J.

I agree.