GHULAM GHOUSE SAHEB Vs. CHOWDRI DRAJA RAO

JUDGEMENT

(1.) THE appellant was directed by the House Rent Controllor to give possession of the house in which he lived to his landlord, the respondent, on 8 August, 1946. He did not obey the order and the respondent accordingly filed an execution petition in which he prayed for his eviction. On 3 September, 1946, however, the appellant paid Rs. 44 to the respondent in respect of two months rent and obtained a receipt. Having done this he filed a counter affidavit in the execution proceedings in which he maintained that a new tenancy had been created by his payment of the two months rent so that he was not liable to be evicted. This contention was rejected by the Principal Judge, City Civil Court, Madras, and this appeal is laid against his order. THE contention that a new tenancy was created is based on the supposition that the facts and circumstances of the case bring it under Section 116 of the Transfer of Property Act. This, however, is not the case. THE appellant is not a lessee remaining in possession of the property after the determination of the lease. He is a person wrongfully remaining in possession beyond the date on which he had been directed by the House Rent Controller under the provisions of Madras Act XV of 1946 to give possession to his landlord. No new tenancy was, therefore, created ; and on the facts there seems to be no reason to differ from the conclusion reached by the learned Principal Judge, that the respondent received payment of the rent without undertaking not to evict the appellant. He filed the execution petition for the eviction of the appellant on the day after the date on which the appellant should have given possession, and he proceeded with it in spite of the payment made by the appellant.

(2.) THE appeal is dismissed with costs.