PUSA MAL Vs. MAKDUM BAKHSH

JUDGEMENT

(1.) This appeal arises out of a suit to recover possession of a house arid Rs. 47-4 0 arrears of rent thereof for the period commencing from 17 October 1904 and ending 17 January 1907.

(2.) The facts are as follows: On April 17th, 1887, the plaintiff's father Bhopal Das leased this house to one Jhargarh, brother of defendants 1 and 2, and father of defendant No. 3 for a fixed period of one year at a monthly rental of Rs. 1-12. After the expiry of the term of this lease the lessee continued to hold over without the express assent or dissent of the lessor. He paid no rent. On the 18 February 1895, the plaintiff brought a suit for rent against Jhargarh in the Small Cause Court for a period commencing from September 1892, up to the date of suit. Jhargarh contested the suit on the ground that he had held adverse possession of the house for over 30 years and denied having executed the so-called kirayanamah and having paid any rent. The plaint was returned by the Small Cause Court for presentation to a proper court on the ground that a question of a proprietary title was involved. The plaintiff however did not prosecute the suit for reasons it is unnecessary to detail. The proprietary title passed from him by auction sale to others but was finally reacquired by him.

(3.) The present suit was instituted on 16 February 1907. The lower court has held that Jhargarh executed the kirayanama of 17 April 1887, for a period of one year. That after the expiry of that term Jhargarh (and after him the present defendants) paid no rent. That there was no assent or dissent express or implied on the part of the lessor and that the lessees therefore became a tenant by sufferance. That a period of more than 12 years having expired since the expiry of the lease, the suit was time barred under Art. 139, Schedule II, of the Indian Limitation Act of 1877. The plaintiff comes here in second appeal and it is urged on his behalf that the lower court has taken a wrong view of the legal position of the parties. That the possession of a tenant by sufferance is not that of a trespasser nor, as such wrongful in law. That where a landlord remains silent when his tenant holds over on the expiry of his lease, his silence must be presumed to be tantamount to consent and that a new tenancy commences and limitation does not begin to run until this new tenancy comes to an end either by the substitution therefor of a fresh tenancy or by the tenant setting up an adverse title.