P L D 1952 Dacca 256 (PLP)

CHOWDHURY J.

‑This appeal by defendants Nos. 2, 3, 8 and 10 to 12 arises out of a suit for rent of six fisheries des cribed in schedules No. 1 to 6 of the plaint for the year 1346 B. S. to 1349 B. S. at the rate of Rs. 220 per year and in the alternative for damages for use and occupation, in case, it is found that the tenancy of the defendants was legally terminated. Plaintiff's case shortly stated is as follows : The defendants Nos. 1, 2, 5, 6 and the predecessor of the other defendants took a lease of the disputed six fisheries for the year 1341 B. S., by a Kabuliyat Exh. 1, dated the 20th Agrahayan, 1341 B. S., in favour of the plaintiffs. This Kabuliyat was executed for the 8 annas share of the plaintiffs in the fisheries of schedules Nos. 1 to 3 and 2 annas share in the fisheries of schedules Nos. 4 to 6 on a Jama of Rs.

100. The term of the lease expired in the month of Chaitra, 1341 B. S., and the defendants held over the disputed fisheries to be followed by a Kabuliyat executed by them in favour of the plaintiffs which was ultimately not exe cuted by them. The tenant defendants did not pay the rent for the year 1342 B. S. for which the plaintiffs had to institute a suit and got a decree in the appellate Court. During the period of litigation, the rent for the year 1343 to 1345 B. S. became time‑barred. As the defendants did not pay the rent the plaintiffs settled the fisheries with the pro forma defendants but they were not allowed to possess the fisheries by the princi pal defendants. Thereupon the plaintiffs instituted the present suit for rent as stated above with alternative prayer for damages for use and occupation during the period in suit. The suit was contested by the defendants Nos. 1, 2, 3, 8 and 10 to

12. The defence is denial of the plaintiffs' title in the fisheries of schedule No. 3 which according to them exclusively belonged to Binode Behari and that the plaintiffs have only 4 piece share in the fisheries of schedules Nos. 4 to

6. They fur ther allege that they took settlement of these fisheries from Binode Babu, who is a co‑sharer of the plaintiffs in respect of the fisheries other than the fishery of schedule No. 3 and that plaintiffs suit is not maintainable without establishing their title in a properly constituted suit. Trial Court dismissed the suit holding that the defendants assuming them to be lessee by holding over after the termina tion of the leases possessed the fisheries against the express consent of the landlord and, therefore, in the eye of law they were trespassers and could validly put the plaintiffs to prove their title and they must first of all establish their title to the disputed fisheries in a properly constituted suit without which they were not entitled to get any decree either for rent or for damages for use and occupation of the disputed fisheries. On appeal by the plaintiffs, the lower appellate Court decreed the suit for rent in part holding that the defendants who were tenants by holding over after the expiry of the written lease, dated the 20th Agrahayan, 1341 B. S., and who were inducted on the lands by the plaintiffs as their lessees, could‑ not deny the title of the plaintiffs and the plaintiffs were entitled to rent and not to any damages for use and occupation. Hence the present second appeal by defendants. Mr. Rakshit, appearing on behalf of the appellants, raised four points on merits and his fifth point was in respect of the decree for costs on the entire claim against the defendants. His first point is that‑ the facts proved and admitted in this case, a tenancy by holding over was not made out as provided for in section 116 of the Transfer of Property Act. His con tention is that assent of the landlord for a tenancy by holding over is essential and in the present case it appears that the plaintiffs did never assent to the holding of the fisheries by the defendants as their tenants, on the expiry of the lease and on the contrary it appears that the plaintiffs let out the fisheries to pro forma defendants in 1346 B. S. and, therefore, it cannot be said that the plaintiffs assented to the possession of the fisheries by the defendants after the termination of the oral lease. According to Mr. Rakshit, plaintiffs' definite case is that after the termination of the written lease there was a verbal lease for one year, namely, for the year 1342 B. S. and the holding over, if any, must be after the termination of that lease and the rent suit instituted by the landlord for the rent of 1342 B. S. cannot be taken as their assent as contemplated in section 116 of the Transfer of Property Act and the inaction by the landlord since and after the expiry of the lease for the year 1342 B. S. cannot be held to be an assent by implication with the meaning of section

116. In support of his contention Mr. Rohini Benode Rakshit, relied on the case of Rattan Lal Giri Sanyasi v. Farashi Bibee and others 11 C W N 826. and the case of Paramananda Singh v. Syjou Singh 24 C L J

30. These are cases in which the tenant defendants in a suit for eject ment set up a tenancy, by holding over and pleaded that inaction of the landlord for some time after the expiry of the original lease could be presumed as an assent by implication and it was held in those cases that there was no authority for the proposition that simply because a landlord did not, for a time, instituted a suit for ejectment after the expiry of the tenant's lease, the .presumption was that the tenant was allowed to Mr. Jnananrata Roy, appearing on the other side, contends that the admitted fact that the defendants who were inducted on the fisheries as tenants, possess thereafter the expiry of the written lease, Exh. 1 (though it is stated by the plaintiffs that there was an oral agreement for such holding over and to exe cute a Kabuliyat, which was ultimately not executed, by the defendants), and they continued to possess the same on the same terms and conditions as on the written lease, Exhibit 1 constituted a holding over under section 116 of the Transfer of Property Act on the expiry of the written lease, Exh. 1 and not a fresh lease on verbal agreement and the subsequent suit for rent for the year 1342 B. S. is the assent of the landlord as contemplated in section 116 of the Transfer of Property Act. Therefore, he contends, there was holding over as contemp lated in section 116 and once there was holding over nothing short of valid notice under section 106 of the Transfer of Property Act can terminate the tenancy. He further contends that inaction on the part of the landlord followed by the present suit for the rent of the period in suit will be an assent within the meaning of the section and the tenancy bean by holding over, will continue till it is terminated by valid notice. I think the contentions of the learned Advocate for the res pondents are of substance. I have already stated that the cases cited by Mr. Rakshit are the cases where the tenant defendant in a suit for ejectment set up a defence of tenancy by holding over because the landlord did not file a suit for ejectment even after the expiry of the written lease. The facts of the present case are quite disting uishable from the facts of those cases. In the present case the landlord was litigating for rent for the years 1342 B. S. during the pendency of which, the rent for the years 1343 B. S. to 1345 B. S., has become barred by limitation and for subsequent period the plaintiffs have instituted the present suit for rent admitting the defendants as tenants. Simple facts that they could not institute a suit for rent cannot be said to operate as their dissent in holding over the disputed fisheries by the tenants who were already in possession of those fisheries as tenants of the plaintiffs. In this connection reference may be made to the case of Munshi Safar Ali Master v. Abdul Majid 31 C W N

282. In this case the suit was instituted for ejectment after 11 years of the termination of the lease granted to the original tenant and it was held that in the circumstances, the Court was justified in drawing an inference that the tenancy did not determine and the possession of the defendant who must be taken to have been holding over was not that of a trespasser but of a person whose rights were to be determined on notice to quit. Mr. Jnanabrata Roy relied on the case of Rana Bahadur Kamakshya Narain Singh v. Harkhu Singh A I R 1949 Pat. 265 for his contention that once there is a tenancy by holding over nothing short of valid notice can determine the tenancy. In that case it has been held that a lease for year to year though a periodic lease is not a lease for a particular year to be renewed year after year but it is a periodic lease for an unstated period till it is terminated by one or the other of the parties giving notice to quit. On the basis of this decision Mr. Roy contends that leasing out the fisheries by the plaintiffs to a third party, the pro forma defendants who did not get posses sion, is of no consequence in the absence of valid notice under section 106 of the Transfer of Property Act. I think the contention of Mr. Roy is of substance. The defendants who are holding over as tenants cannot treat themselves as trespas sers, because the landlords tried to let out the land to a third party. The tenancy created by holding over will continue to be terminated by a valid notice. In support of this view reference may also be made to the case of Usharani Debi v. The Research Industries, Ltd. 50 C W N 461, where it has been held that a monthly tenancy is not a tenancy which commences or begins in one month and on the expiry a fresh tenancy is created in the following month or months but is ‑one tenancy for an unstated period which is determinable by one or other of the parties giving a notice to quit. I am of opinion that the tenancy of the defendant by holding over is not affected by the lease of 1346 B. S. in the absence of valid notice and the defendants are tenants of the fisheries under the plaintffs by holding over and liable to pay rent for the period in suit. Even on the contention of Mr. Rakshit that the tenancy was terminated by the action of the landlord, namely, by granting a lease in 1346 B. S. to the pro forma defendants, then also the defendants are tenants on sufferance and liable to pay rent. In this connection reference may be made to the case of K. K. B. Capadia v. B. J .H. Warden 53 C W N 73 (F,R), where it has been held that under section 116 of the Transfer of Property Act, a lessee or a sublessee who con tinued in possession of the demised premises even after determination of the lease and the landlord did not exercise his right to eject him, he became a tenant on sufferance who had no lawful title to the land but held it merely through the laches of Next contention of Mr. Rakshit is that the Court of Appeal below erred in law in holding that the judgment in rent suit for rent of the year 1342 B. S. will operate as res judicata and the defendants are precluded from disputing the plaintiffs' title. The lower appellate Court at page 9 of the Paper Book held that the defendants were precluded from denying the relationship of landlord and‑ tenant between the plaintiffs and the defendants. But it did not stop there and went on to say that the defend ants were precluded from disputing the plaintiff's title in the disputed fisheries by the doctrine of res judicata. This portion of his finding, Js wrong inasmuch as the question of title of the plaintiffs in the previous rent suit was incidentally gone into and the defendants are not setting up title to themselves but to a third party who were not parties to the suit and such a decision cannot operate as res judicata on question of title in subsequent rent suit. But the decision as to the relationship of landlord and tenant certainly operates as res judicata. After all, the defendants who were inducted on the fisheries as tenants by the plaintiffs are estopped from disputing the title of the lessors, the plaintiffs, in the fisheries. Even if there was no holding over after the termination of the written lease, the de fendants are possessing the lands as tenants on sufferance and they are not entitled to dispute the title of the plaintiffs until and unless they surrendered their possession to the plaintiffs. Refer ence may be made to the case of Muhammad Mujibar Rahman v. Sheikh Isab Surati 32 C W N 867, where it has been held that section 116 of the Evidence Act does not contain the whole law of estoppel and the tenants's estoppel from questioning his landlord's title at the time of the demise, operates even after the termination of the tenancy and no plea can be set up of which the necessary effect is to dispute the title of the person, who gave possession, at the time of the demise though he can show that the title of the landlord has determined subsequently Reference may also be made to the Privy Council case of Bilas Kunwar v. Desray Ranjit Singh and others 42 I A

202. So in any view of the matter the defendants are precluded from denying the title of the plaintiffs. Next contention of Mr. Rakshit is that the lower appel late Court has made out a new case that Binode Behari whom the defendants set up as their landlord in respect of the disput ed fisheries, is the Karta of the family and his settlement was a settlement on behalf of all including the plaintiffs. I think Mr. Rakshit's contention is correct. The plaintiffs' definite case is that the defendants are possessing the fisheries as tenants under them. There cannot arise any question of settlement by Binode Behari as a Karta of the family on behalf of all including the plaintiffs when separate possession by the plaintiffs specifically asserted in the plaint and the case pro ceeded on that basis. The other contention of Mr. Rakshit that the present suit for rent and in the alternative for compensation for use and occupation by the plaintiffs is not maintainable without estab lishing the title of the plaintiffs in a properly constituted suit impleading all parties interested in the fisheries is of no substance. I have held that the defendants are precluded from disputing the title of the plaintiffs in the fisheries in suit till they surrender their possession in favour of the plaintiffs. The last contention of Mr. Rakshit that though the lower appellate. Court allowed the claim of the plaintiffs in part, yet decreed the cost on the full claim instead of proportionate cost is without any foundation. It appears from the ordering portion of the judgment of the lower appellate Court that the appeal was allowed with costs and the judgment and decree of the trial Court were set aside and the suit decreed for Rs. 400 with corresponding costs, in other words, the appeal in the lower appellate Court was allowed with full costs but the suit was decreed with proportionate costs. Therefore, I do not think that there is anything wrong in the decree. The result is that this appeal is dismissed with costs. In view of my finding that the defendants are tenants by holding over under the plaintiffs there is no substance in the cross‑objection which is in respect of the plaintiffs' alternative claim for damages for use and occupation. The cross‑objection which was necessitated by way of safeguard against an adverse decision as to rent is, accordingly, dismissed without costs. A. H. Appeal and cross