Mahesh Chandra, J. - (1.) THIS is a Plaintiff's second appeal against the dismissal of the suit by both the courts below. The suit was brought by Amir Chand, Plaintiff -Appellant, for eviction of Sadhu Ram and Tara Chand, Defendants -Respondents. The Plaintiff -Appellant alleged that the Defendants Respondents were tenants of the premises from month to month at Rs. 5/ - per month and that he has obtained permission from the RC and EO to eject them who have not paid rent for the period of 11 -9 -19(?) to 24 -8 -58. The Defendants -Respondents denied that they were tenants of the Appellant and pleaded that the suit was time barred.
(2.) IT has been found by both the courts below that the tenancy expired on 6 -5 -1932 and that no rent had been paid thereafter, that there had been no admission by the Defendants -Respondents about their being tenants of the land in suit and that the suit was barred by efflux of time. Both the courts below accordingly dismissed the suit. The matter is concluded by concurrent findings of fact of both the courts below in so far as the non -payment of rent after the expiry of the period of tenancy in 1932 is concerned. Learned Counsel for the Appellant contends that the application of the Defendants -Respondents before the RC and EO saying that the Applicant wanted to have a rent note executed in his favour at an enhanced rate of rent to which opposite party did not agree and hence he has moved this application to vindicate his obstinacy and to wreak vengeance, amounts to an admission that they had been paying rent to the Appellant. This contention is without force. It is not denied that in the beginning Mangoo paid Rs. 3/8/ - as rent for one year till May 1932. The phrase "enhanced rate of rent" will, therefore, refer to the rate of rent paid by Mangoo in 1931 and part of 1932, or the rate of rent agreed upon between the Appellant and Mangoo. There is no admission any where in that application to the effect that rent at any rate whatsoever had been -paid after May, 1932. The courts below were, therefore, right in saying that the use of the phrase "enhanced rate of rent" did not imply any admission that before the demand of Rs. 5/8/ - as rent the Respondents had at all been paying any rent after May, 1932. The next contention of the Learned Counsel for the Appellant was that after the expiry of the period of one year Mangoo's tenancy had not terminated but they were holding over Under Section 116 of the Transfer of Property Act. This contention is without force. Section 116 of the Transfer of Property Act runs as follows: If a lessee or under -lessee of property remains in possession thereof after the determination of the lease granted to the lessee and the lesser or his legal representative accepts the rent from the lessee or under -lessee, 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. It is clear from the words of this section that a person would not be a tenant holding over merely because he continued in possession of the premises after the determination of the lease. What is necessary for the application of this section is that the landlord must have accepted the rent from the lessee or otherwise assented to his continuing in possession. In the absence of payment of rent or the acceptance of it by the landlord or anything to show that the landlord has assented to the lessee continuing in possession, the person concerned would not after the determination of the lease become a tenant holding over. The question of burden of proof does not arise at this stage. The parties have entered into evidence and it was found by both the courts below that no rent was paid after the determination of the lease. Nor was there any assent on the part of the landlord to the continuance of the tenancy. In these circumstances, the Defendant -Respondents or their predecessors Cannot by any stretch of imagination be said to be tenants holding over.
(3.) IT was also contended by the Learned Counsel for the Appellant that so long as the Respondents remained in possession of the property they could not be permitted to deny the title of the landlord, since they entered into possession as a tenant. This is true, but the question here is not one of adverse possession or of the Respondent's becoming owners of the property in suit. The question merely is that the suit is barred Under Article 139 of the old Indian Limitation Act. It runs as follows: All that this Article says is that the limitation for a suit by a landlord to recover possession from the tenant would be time barred if it is filled after the expiry of twelve years from the date of the termination of the tenancy. Thus, this Article 139 of the Limitation Act stands in the way of the Appellant's suit for eviction of the Respondents treating them as tenants.;