TMI Blog1955 (6) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... rent suit against defendant No. 1 Sreemati Fulkumari Devi who was in occupation of one of the rooms as a tenant under the plaintiff and his predecessors, but the said defendant No. 1 denied the plaintiff's title and set up title in defendant No. 2, the present appellant, and disclaimed all relationship of landlord and tenant between her (defendant No. 1) and the plaintiff, whereupon the rent suit was dismissed. On account of this dismissal,, the present suit had to be brought against the two defendants. 3. The suit was contested only by defendant No. 2 who claimed title to the suit lands as a tenant under the admitted landlords Bejoy Kumar Banerjee and others, his case being that, upon the expiry o# Mahadev's lease from 1334 to 1338 B. S., he vacated the suit lands which were taken into khas possession by the landlord who settled the same with him (the contesting defendant No. 2) in or about 1340 B.S. The defendant also denied the story of holding over by Mahadev both on facts and as a matter of law, repudiating, inter alia, the Plaintiff's case of landlords' assent to his (Mahadev's) alleged continuing in possession after the expiry of his original lease fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any event, the point requires further elucidation and re-consideration. 6. Giving the matter my best consideration, I am unable to accept this appeal. The point of law, arising in this appeal, is undoubtedly one of some difficulty and if AIR1927Cal279 , had purported to lay down any broad proposition of law to the effect that mere continuance of possession for a long time without more would, as a matter of law, be sufficient to prove the necessary assent of the landlord under Section 116 of the Transfer of property Act, it would probably have been un-supportable and I would have been inclined to put it aside in the face of numerous authorities to the contrary, not excluding the Federal Court decision, referred to above, but, in my view, all that the case in AIR1927Cal279 , lays, down is that the assent of the landlord, as required by Section 116 of the Transfer of Property Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances which would either directly establish such assent or lead to a reasonable inference of it. To this proposition there can be no legitimate exception. It will be qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as to the correctness or otherwise or the binding force of the above two decisions, 18 Ind Cas 448 (Cal) (D) and AIR1927Cal279 . In the above view of the matter, I shall proceed at once to consider the legal position in the present case and, for that purpose I shall record a brief statement of my view of the relevant part of Section 116 of the Transfer of Property Act and advert to the salient features of this instant case. 9. Section 116 of the Transfer of Property Act runs thus: If a lessee or under-lessee of property 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, as specified in Section 106.'' 10. From the express terms of the section, it is obvious that mere continuance of possession after the expiry of determination of his lease would not entitled the tenant to claim a tenancy by holding over. Mere conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongful both in its inception and in its continuance, the quondam tenant's possession having had, on the other hand, a lawful origin though continuing in wrong after the termination of the lease and thus being rightful in its origin or inception, though wrongful in its continuance''; but the landlord's assent would convert this wrongful possession into a rightful one and, as I have already said, when this possession is suffered long without protest, very slight evidence may be sufficient to raise the necessary inference of assent on the landlord's part. (See in this connection Wood fall on Landlord Tenant 25th Ed (1954) 312 Sec also Kantheppa v. Sheshappa ILR 22 Bom 893 (E). 12. I do not think that the above exposition or statement of the legal position is opposed to any of the decided cases either under Section 116 of the Transfer of Property Act (Vide e. g. the case of Ratan Lal Gir v. Farshi Bibi ILR 34 Cal 396 same case in 11 Cal WN 826 (F) and the case of Paramananda Singh v. Syjou Singh 24 Cal LJ 30: (AIR 1917 Cal 219) (G) or under the closely related Article 139 of the Indian Limitation Act, to which also consideration of this part of the law or ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that the landlords who are undoubtedly supporting the defendant appellant have withheld their collection papers (including the real counter-foil books) which might have thrown some light on the state of things after the determination of Mahadev's original lease in 1931-32, and this they have done in spite of sufficient 'opportunity, particularly after the remand from this Court on the earlier occasion. It has also to be noticed that these counter-foils were called for from the landlords by one of the parties in the present suit. In these circumstances, I am not prepared to disturb the concurrent finding of the two courts below that the landlord's requisite assent to Mahadev's continuing in possession for the purpose of Section 116 of the Transfer of Property Act may be reasonably inferred in this case. The importance of the landlord's papers cannot be overlooked or minimised in this particular case, when it is remembered that the Original tenant is dead and his heirs are away and not easily available and the plaintiff is a subsequent purchaser from those heirs more than 12 years after the expiry of the original lease, and the withholding of these papers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the concurrent finding of the two courts below on the question of the landlords' assent to Mahadev's holding over after the expiry of the term of his original lease. This significant circumstance was expressly relied upon by the learned .Munsif, though with some amount of exaggeration, and although it was not specifically adverted to by the learned Appellate Judge, I do not think that it was altogether out of his mind when he referred to the entry in the Municipal Register and to the landlords' application for rectification of the same as circumstances, justifying inference of the necessary assent and sufficient overt act on the landlords' part. The present, therefore, is not a case of neither assent nor dissent. It is a case of assent which together with the tenant's continuance in possession constitutes a valid holding over in law under Section 116 of the Transfer of Property Act. In the above view of the matter, I am bound to hold that, after the expiry of his fixed term lease, Mahadev acquired a tenancy by' holding over under Section 116 of the Transfer of Property Act and that the courts below were right in so holding, 15. Once the above posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hya Narayan Singh v. Ram Rakshna Singh 55 Ind App 212: (AIR 1928 PC 146) (L). There the original lease was one for life and, therefore strictly speaking, there was no question of holding over, and, indeed, there can possibly be no holding over under Section 116 of the Transfer of Property Act except by the lease or the under lessee (Vide 55 Ind App. 212, already cited at p. 225): AIR 1928 PC 146 at p. 151 (L). The heirs who were the claimants in that case would not properly come under that section They could only acquire a new and independent tenancy. This was apparently in the minds of their Lordships of the Privy Council (Vide pp. 224, 225 (of Ind App): (at p 151 of AIR); vide also in this connection AIR1927Cal725 when they were dealing with question of holding over under Section 116 of the Transfer of Property Act. But they also pointed out that section (Section 116) was subject to an agreement to the contrary'' and, in that case, there was such an agreement (vide p. 225 (of Ind App): (at p. 151 of AIR) and, further, that the facts and circumstances of the case also militated against the creation of a new tenancy. In the result, they held that no subsisting tenancy had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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