P L D 1954 Lahore 796 (PLP)

The defence taken was that during the third year the relationship of landlord and tenant did not exist between the parties, that the plaintiffs were consequently co‑owners with the defendants and that for this period their remedy lay in a suit for rendition of accounts. This plea was accepted and a decree for rent for the first two years only was awarded to the plaintiffs. Both parties appealed to the High Court but while the appeals were pending the‑plaintiffs brought a second suit on the 31st of August, 1942, for the recovery of rent for the period between the 1st of September, 1938, and the 31st of August, 19‑

11. While this suit and the appeals against the previous decree were pending, the plaintiffs brought a third suit on the 31st of August, 1945, for the rent of the next three years ending with 31st August, 1944. In both these suits the plaintiffs prayed for two alternative remedies, the first being that if a suit for rent was not competent, then a decree for damages for use and occupation be awarded, the second being that if this remedy also was found unavailable, then a decree for rendition of accounts be awarded. As Mian Ghulam Farid had died in April, 1941, he had been substituted by his sons and grandsons. Muhammad Saeed, however, continued to be one of the defendants as before. He filed separate written statements in both cases and repeated his previous plea that since the 1st of September, 1937, the relationship between the parties had been one of co-owners and not one of landlord and tenant. For this he also relied on the finding of the original Court in the previous suit and pleaded it as res 9udicata. The remaining defendants in addition to these pleas took up the position that since August, 1938, when Mian Ghulam Farid had partitioned his property among his sons and grandsons, the two factories in question had fallen to the share of Muhammad Saeed who alone was, therefore, responsible to the plaintiffs for whatever was found due to them. Muhammad Saeed himself scrupu lously avoided reference to any such partition. While these suits were pending, the High Court, on the 8th of January, 1947, dismissed the appeal of the defendants in the first suit and accepted the appeal of the plaintiffs after having found that Muhammad Saeed and Ghulam Farid de fendants were tenants holding over within the meaning of sec tion 116 of the Transfer of Property Act for the year 1937‑38 and were "liable to pay the rent payable in the preceding year 1936‑37." The two suits were consolidated and the trial Court in a single judgment held that on two of the common issues, namely, whether the plaintiffs had 7/24th shares in the factories and whether they were landlords of the defendants for the year 1937‑38, the decision of the High Court operated as res judicata. It was further held that no partition had been effected by Ghulam Farid during his lifetime and that conse quently until his death in April, 1941, he was as much liable as a lessee as Mian Muhammad Saeed. In the second suit, therefore, he granted to the plaintiffs a decree for Rs. 6,404‑8‑0 against all the defendants to the extent of the property of Mian Ghulam Farid in their hands and for Rs. 1,033 against Mian Muhammad Saeed alone. In the third suit he granted a decree for Rs. 7,437‑8‑0 against Mian Muhammad Saeed alone. From these decrees Mian Muhammad Saeed alone has brought one appeal and Mian Muhammad Saeed with his brothers has brought another appeal. Mr. Yaqub Ali, who argued the case for both sets of appellants, contended in the first instance that Ghulam Farid had partitioned his property in August, 1938, and that if this partition is upheld, Mian Muhammad Saeed would become as assignee or Mian Ghulam Farid's share in the property, and since it is settled law that an assignee does not hold over as a tenant, the plaintiffs would not be entitled to a decree for rent at least so far as the share of Ghulam Farid went. His second contention was that the suit of 1939 (the first suit) had been decided by the High Court in favour of the plaintiffs on the ground that the defendants "had come into possession as lessees and there ought to have been something to indicate that thence forward they had changed their character or status". Mr. Yaqub Ali argued that the defendants having denied the relationship of landlord and tenant, in their written statement during the first suit, had sufficiently indicated that they were no longer the plaintiffs' tenants and that on the reasoning of the High Court judgment the relationship in question should be held to have terminated. On the first point we have not much to say. Mr. Yaqub Ali relied on a will which had been executed by Mian Ghulam Farid on the 1st of April, 1940, and where, without mentioning the present factories, the testator says that his sons had separated from him and were doing their separate business since the 31st of August, 1938. When, however, we pointed out to Mr. Yaqub Ali that the testator in his written statement in the first suit, which he filed on the 11th of April, 1940, ten days after the execution of the will, had taken up the position that during the third year the plaintiffs were co‑owners with him and his son Muhammad Saeed, Mr. Yaqub Ali, realising what an untenable position the defendants had taken, told us that he was not pressing the point any further. For if it is true that on the 31st of August, 1938, Mian Ghulam Farid had transferred his share in the factories to Muhammad Saeed, then in the written statement he would make it clear that he himself had no share in the factories and that Muhammad Saeed had succeeded to his rights. As regards the second point, the decision rests on the language of section 116 of the Transfer of Property Act which is as follows :‑ "If a lessee or underlessee 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 underlessee, 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." If, therefore, (1) the lessee remains in possession, and (2) the lessor either accepts rent or otherwise assents to his continuing in possession, the lease is automatically renewed from year to year or from month to month according to the purpose stated in section

106. Unquestionably the defendants are continuing in possession. The plaintiffs cannot be said to have accepted rent, because no rent was paid to them, but they can be said to have "otherwise assented" because from time to time, as the situation required, they filed a suit for rent. A demand for rent or a suit for rent has been held as constituting circumstances from which assent can be inferred. Dougal v. McCarthy ((1893) 1 Q B 736.) Balaji v. Ramchandra (1903 27 Bom. 262.). According to section 106 of the Transfer of Property Act, lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either the lessor or the lessee, by a six months' notice expiring with the end of the year of the tenancy ; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable by 15 days' notice. Consequently, reading sections 116 and 106 together, the present is a lease renewed from year to year, terminable at six months' notice by either party. It does not terminate with anything said by, the plaintiffs in a written statement. Under section 106 a notice must be it writing signed by or on behalf of the person giving it and either be sent by post to the party concerned or be tendered personally. Mr. Yaqub Ali's argument that section 106 refers to lease defined in section 105 does not merit serious attention. Section 105 merely defines the term lease in general and section 106 prescribes the duration of leases in the absence of contract or usage. By a legal fiction a lease of immovable property for agricultural or manufacturing purposes is to be deemed to be a lease from year to year and by a legal fiction again a lessee holding over is to be deemed under section 106 to be holding a lease which is renewed from year to year. We hold that the defendants are still holding over, and dismiss the two appeals with costs. A. H. Appeals dismissed.