P L D 1970 Peshawar 146 (PLP)

Limitation Act (IX of 1908), Arts. 110 & 116 read with Transfer of Property Act (IV of 1882), S. 116‑Period of registered lease expiring Relationship between parties regulated by S. 116, Transfer of Property Act and not by written and regis tered contract‑Suit for arrears of rent by lessor for period of holding over by tenant‑Held, governed by Art. 110 and not

116. Seydarakath Kakkachi and others v. Valiarath Muhamad Kutti and another 6 1 C 754; Mamambath Pettiyeth v. M. M. Cheria Uthalamma and others 16 I C 560 and K. Ganandadesikam Pillai and others v. Antony Benathu Boopalarayar A I R 1934 Mad. 458 fol. Vasanji Kallianji Uka v. Eruchshaw Dessabhai Mai‑war A I R 1935 Bom. 203; Muhammad Siddiq and others v. Muhammad Nuh A I R 1930 All. 771; Tricomdas Cooverji Bhoja v. Sri Gopinath Jiu Thakur A I R 1916 P C 182 and Ram Raghubir Lal and others v. United Refineries (Burma) Limited and others A I R 1933 P C 143 distinguished. ANWARUL HAQ, J.‑This judgment will dispose of two cross‑appeals bearing Nos. 248 and 257 of 1959. The relevant facts are that by means of a deed executed on the 15th of May and registered on the 6th of July 1944 Mirza Fazal‑ur‑Rehman, defendant No. 2, mortgaged the property in suit with possession to the plaintiff-appellant Abdul Aziz in the sum of Rs. 5,000 for a period of three years. By another registered deed the mortgagor took the property on lease for the same period, agreeing to pay rent at the rate of Rs. 60 per mensem, provided that the rent would be reduced to Rs. 44 per mensem in case pay ment was made regularly every month. It was stipulated that in case of default for three successive months the full rent at Rs. 60 per mensem would become payable.

2. On the 4th of February 1946, the property was sold by Mirza Fazal‑ur‑Rehman, along with some other property to Khan Bahadur Mian Feroze Shah (appellant in R. S. A. No. 257 of 1959). On the 23rd of June 1949 the mortgage Abdul Aziz brought a suit under Order XXXIV, rules 4 and 5 of the Code of Civil Procedure against Mian Feroze Shah and Mirza Fazal‑ur‑Rehman for the recovery of the mortgage money and the arrears of rent at the rate of Rs. 60 per mensem from 15th of May 1944 to the 15th of June 1949. He also claimed further rent at the same rate from the date of the suit till the date of the recovery of the amount in dispute. A preliminary decree was granted by the trial Court on the 10th of November 1950, for the recovery of Rs. 7,640, but future rent was disallowed and it was observed that Abdul Aziz could bring a fresh suit for this amount. There upon the mortgagee went up in appeal which was partly accepted by the then Judicial Commissioner at Peshawar and the decretal amount was enhanced by Rs. 1,020, but the lower Court's view disallowing the future rent was upheld.

3. It was in these circumstances that Abdul Aziz filed a fresh suit on the 5th of October 1955, claiming an amount of Rs. 3,944 as mesne profits for the use and occupation of the property for the period 16th of June 1949 to the 7th of December 1954 at the rate of Rs. 60 per mensem. It may be stated that the amount decreed in the previous suit was deposited in execution proceedings on the 7th of December 1954 and, therefore, the property stood redeemed from that date. The suit was contested on behalf of the vendee and the mortgagor mainly on the grounds that it was barred by time and by res judicata under section 11 and Order II, rule 2 of the Civil Procedure Code. Certain other technical objections regarding the competence of the suit were also raised. The learned trial Judge found, without specifying the Article concerned, that the period of limitation in this case was six years, and that the suit was not barred by the principle of res judicata or by the provi sions contained in Order II, rule 2 of the Code of Civil Procedure. He accordingly decreed the suit for the amount claimed, namely, Rs. 3,944.

4. The vendee Mian Feroze Shah went up in appeal against this judgment and decree. The main contentions raised in appeal related to the question of limitation and the suit being barred by Order II, rule 2 of the Code. The learned Additional District Judge found that the suit was not barred as contended, as the plaintiff Abdul Aziz had not omitted to include the present claim in the previous suit, and the Court had definitely allowed him to bring a fresh suit in this behalf, however, on the question of limitation the learned Additional District Judge took the view that the Article applicable was 10) of the Limitation Act which prescribed a period of three years from the date when the profits were received by the defendant. Accordingly, the learned Additional District Judge reduced the decretal amount to Rs. 2,160.

5. In R. S. A. No. 248 of 1959 brought by the mortgagee Abdul Aziz, it is contended that the learned Additional District Judge has erred in thinking that the matter of limitation was governed by Article 109 of the Schedule to the Limitation Act, as in fact the Article applicable is 116 (which prescribes a period of six years), for the reason that the relationship between the parties was governed by a contract in writing and registered, namely, the lease deed executed on the 15th of May 1944 and registered on the 6th of July 1944. In the counter appeal filed by the vendee Mian Feroze Shah the contention is that although the learned Additional District Judge was right in thinking that the period of limitation in this case was three years, yet he overlooked the fact that the arrears realizable in the suit were these falling due from the 5th of October 1952 (i.e. three years before the institution of the suit) up to the 7th of December 1954 when the mortgage was redeemed, and not up to the 5th of October 1955, i.e. the date of the institution of the suit. It is submitted that on this basis the arrears due would be only for two years and two months and would amount to Rs. 1,560 instead of Rs. 2,160 as allowed by the learned Additional District Judge. 6 In order to determine the period of limitation applicable in this case it is necessary first to see the nature of the relation ship which continued between the parties after the expiry of the period of the registered lease. We have already stated that the lease was for a period of three years only and, therefore, expired on the 15th of May 1947. As, however, the mortgagor continued in possession of the property as the lessee under the mortgagee with the latter's permission, the relationship was clearly governed by section 116 of the Transfer of Property Act, namely, that the lessee was holding over on the same terms and conditions until the mortgage was redeemed on the 7th of December 1954. This statutory relationship under section 116 of the Transfer of Property Act cannot, however, be regarded as one under the registered contract of lease, for that contract had already expired. The relationship which subsisted between the parties after the expiry of the registered lease and until the redemption of the mortgage was, therefore, independent of the registered contract.

7. It was submitted by Mr. Abdul Majid, the learned counsel for the plaintiff‑appellant Abdul Aziz, that irrespective of the expiry of the period of the registered lease the relationship between the parties must be considered to be governed by the terms of the registered contract for the reason that section 116 of the Transfer of Property Act contemplated that the tenant holding over would do so on the same terms and conditions. In support of this proposition the learned counsel referred us to Vasanji Kallianji Uka v. Eruchshaw Dessabhai Mai‑war (A I R 1935 Bom. 203) and Muhammad Siddiq and others v. Muhammad Nuh (A I R 1930 All. 771). A reference to these two authorities, however, shows that they relate to entirely different facts. In the first mentioned case it was observed that "where a mortgage deed containing the personal covenant to pay the mortgage money is registered, the Article applicable to a claim based on the personal covenant to recover the balance due to the mortgagee after the sale of the mortgaged property is Article 116". It will be seen that the claim in this case arose out of the registered contract itself and there could be no question but that the appropriate Article was Article

116. In the second case referred to by Sh. Abdul Majid the relevant observations relied upon by him are: --‑ "If a statute says that a certain covenant should necessarily be implied in a certain contract and that contract itself is in writing and registered, Article 116 applies, and if the contract is under section 55, Transfer of Property Act, and the vendee is put in possession and dispossessed; the time begins to run from the date of dispossession." Mere again, the breach was of something which was necessarily implied in the registered contract. This is a situation completely different from the one obtaining‑in the instant case, where the subsequent relationship is not the result of any necessary implication of the registered contract, but is the creation of a statute, namely, section 116 of the Transfer of Property Act.

8. Mr. Abdul Majid next referred to Tricomdas Cooverji Bhoja v. Sri Gopinath Jiu Thakur (AIR 1916 P C 182) and Ram Raghubir Lal and others v. United Refineries (Burma) Limited and others (AIR 1933 P C 143), both of which lay down the principle that in a suit for rent due under a registered lease or in respect of liability of the vendee arising upon a contract in writing registered, the Article applicable is 116 of the Schedule to the Limitation Act. These judgments do not, in any manner, advance the case of the plaintiff‑appellant as they relate to suits which arose directly out of contracts written and registered.

9. Of direct relevance in the present context are three cases mentioned by Mr. Yunas Shah, the learned counsel for the vendee Mian Feroze Shah. They are Seydarakath Kakkachi and others v. Valiarath Muhammad Kutti and another (6 I C 754), Mamambath Pettiyeth v. M. M. Cheria Uthalamma and others (16 I C 560) and K. Ganandadesikam Pillai and others v. Antony Benathu Boopal arayar (A I R 1934 Mad. 458) all of which lay down the principle that where a registered lease has been determined and the tenant holds over, the claim for rent for the period during which the tenant has held over is not a claim for compensation for the breach of the contract in writing registered. We are in respectful agreement with this view for the reason already stated by us in an earlier f part of this judgment, namely, that after the period of the registered lease has expired, the relationship between the parties is regulated by the statutory provision contained in section 116 of the Transfer of Property Act and not by the written and registered contract.

10. On this view of the matter, it is clear that Article 116 which deals with a suit for compensation for the breach of a contract in writing registered is not applicable in this case, nor is Article 109, relied upon by the learned Additional District Judge. This last Article deals with a suit for the recovery of profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant. In view of the statutory relationship between the parties in terms of section 116 of the Transfer of Property Act, the suit brought by the plaintiff' Abdul Aziz was clearly one for the arrears of rent and was, therefore, governed by Article 110 of the Schedule to the Limitation Act which, no doubt, prescribes the same period of three years as obtain under Article 109.

11. As the suit was brought on the 5th of October 1955, the rent realisable would be for the period commencing from the 5th of October 1952. If the relationship had been in subsistence on the date of the institution of the suit, the arrears permissible would obviously have been for the full period of three years, but as the relationship of landlord and tenant between the parties had come to an end on the 7th of December 1954, on which date the amount decreed in the previous suit had been deposited in Court by the vendee Mian Feroze Shah, the plaintiff would only be entitled to recover the arrears for the period 5th of October 1952 to the 7th of December 1954, i.e. for two years and two months. Mr. Yunas Shah was, therefore, right in submitting that the learned Additional District Judge was in error in passing a decree for the full period of three years. The excess rent allowed by the learned Additional District Judge amounting to Rs. 600 has, therefore, to be deducted from the decretal amount.

12. For the foregoing reasons, the appeal filed by the mortgagee Abdul Aziz, namely, R. S. A. No. 248 of 1959, fails and is hereby dismissed, whereas the one filed by the vendee Mian Feroze Shah, namely, R. S. A. No. 257 of 1959, succeeds and is hereby accepted to the extent that the decretal amount is reduced from Rs. 2,160 to Rs. 1,

560. In view of the legal questions involved, the parties are left to bear their own costs in both the appeals. S. Q. Order accordingly.