- (1.) THIS is an appeal by the plaintiff appellants Hindu Singh and others against the judgment and decree of the District Judge, Balotra in a suit for arrears of rent and ejectment.
(2.) THE material facts are these. THE case of the plaintiffs was that their ancestor Bulidan Singh (who is the father of the plaintiffs Hindu Singh and Roop Singh and grand-father of Narain Singh son of Hindu Singh) let out the piece of land, which is called Bara, situate in the town of Barmer, to defendants Mana and his sons who are the respondents under a rent-note Ex. P. 1 dated Posh Sudi 5 Smt. 1986 executed by Mana on behalf of himself and his sons in favour of the said Bulidan Singh. By this rent-note, the respondent Mana said that he had taken the Bara on rent at an annual rent of 1/4/- and that he would vacate it whenever the landlord so wished. THEreafter the boundaries of the Bara were specified, and it was further recited that "therefore we shall enjoy it for a period of 12 months and thereafter whenever you will so ask, we shall vacate it and hand it over to you. " THE plaintiffs' case further was that the respondents had paid rent upto Smt. 2000 (corresponding to 1943 A. D.) to their deceased ancestor Bulidan Singh who died some time in that year, but thereafter the respondents did not pay any rent whatsoever. THE plaintiffs then gave a notice to the defendants respondents on the 2nd March, 1951, to pay six years' arrears of rent amounting to Rs. 7/8/-and also to vacate the Bara. As the defendants did not do so, the plaintiffs brought the present suit on the 24th April, 1951, claiming arrears of rent amounting to Rs. 7/8/-and ejectment. The defendants, though not in so may words, virtually admitted to have executed the rent-note in suit, but their case was that the plaintiffs' ancestor Bulidan Singh had not made over possession of the Bara in question to the former and that the defendant Mana had even approached Bulidan Singh and informed him of true position whereupon the latter said that Mana need not mind and that he would destroy the rent-note. The defendants also contended vaguely that the suit was barred by time. The Munsiff, Barmer, who tried this suit decreed it in toto. The defendants went in appeal to the learned District, Judge Balotra who reversed the decision of the trial court and dismissed the plaintiffs' suit on the ground of limitation though the learned Judge on all other matters in controversy between the parties concurred in the findings of the trial court. The plaintiffs have now come in second appeal to this Court against the above judgment and decree. It may be stated at once that there is overwhelming evidence on the record to show that Mana had execated the rent-note Ex. P. 1 in favour of Bulidan Singh, ancestor of the plaintiffs, appellants. This evidence consists of the statements of P. W. 1 Brijlal who is the scribe of the rent note, and P. W. 2 Hiralal who identified the thumb mark of Mana thereon, and P. W. 3 Rikhabdas and P. W. 4 Rajmal who respectively identified the attestation of their deceased fathers Rajmal and Dermal on it. It may be mentioned that Mana on his deposition at the trial denied that he had executed Ex. P. 1. This denial was entirely futile because a little later in his cross-examination he did admit that Bulidan Singh had asked him to execute a rent-note and he had put his thumb mark upon it. I am, therefore, satisfied that the finding of the trial court on the question of the execution of the rent note by Mana is perfectly correct and this finding does not appear to have been challenged in appeal by the defendants before the District Judge. The execution of the rent note in question, therefore, is proved to the hilt. As to the next question of fact, namely whether the defendants had been put in possession of the bara in suit, the finding of both the courts is against the defendants, and that finding is based on the evidence of a number of witnesses namely, P. W. 6 Kesrimal. P. W. 7 Rai Singh and P. W. 8 Hindu Singh, plaintiff himself, apart from the evidence furnished by the document Ex. P. W. 5/1 which was a sale-deed obtained by one Roop Singh with respect to a plot of land which was situate to the east of the Bara with which we are concerned. The trial court had considered the evidence of the defendants' witnesses D. Ws. Magna, Sona, Rama, Rawta and Mana defendant himself in this connection and came to the conclusion that that evidence was not worthy of belief as compared with the evidence of the plaintiff Hindu Singh and his witnesses. The position, therefore, is that the finding that Mana had been put into possession of the bara in a suit must be accepted as final for the purposes of the second appeal. The only question which then seems to have been taken up before the learned District Judge was that the suit was barred by limitation. The learned Judge held that the proper article which was applicable to this suit was Art. 139 of the limitation Act and he further found that the lease Ex. P. 1 was a lease for a fixed period of one year and therefore, it came to end by efflux of time in accordance with clause (a) of S. 111 of the Transfer of Property Act, and the plaintiff had brought their suit after 12 years of of the determination of the tenancy in Smt. 1987, corresponding to some time in 1930 A. D. In this connection, the learned District Judge also found in agreement with the view held by the Munsiff t|hat there was no satisfactory evidence to prove that any rent was paid by the defendant Mana, after the date of the lease, and he further found that there was no evidence on the record to show that the defendants had continued in tenancy of the bara in question after Smt. 1987 with the consent of the plaintiffs. Reliance was placed by the learned Judge on Sitharamiah vs. Ramaswamy (1) and Veerayya vs. Subhamma (2) and he eventually came to the conclusion that the tenancy in this case had been determined in Smt. year 1987 within the meaning of Art. 139 of the Limitation Act and consequently the plaintiffs' suit was barred by limitation and on that view, he dismissed the same. I have heard learned counsel for the parties at length and have carefully perused the rent-note Ex. P. 1 the principal terms of which I have already recited above. The crucial question for consideration in this case is when the alleged tenancy came to an end, and whether the finding of the learned District Judge that it did come to an end in Smt. 1987 or 1930 A. D. is well founded. Now, as I look at the matter, the decision of the aforesaid question in turn depends upon what was the precise nature of the tenancy which was brought into existence by the rent-note Ex. P. 1 which has been held to have been executed by Mana in favour of the plaintiffs' ancestor Bulidan Singh. By this rent-note, Mana agreed to give an annual rent of Rs. 1/4/- to Bulidan Singh, and it was immediately thereafter started that he would vacate the bara whenever the landlord so wished. Then, the rent note went on to mention the boundaries of the bara and thereafter it was stated that the lessee would remain in enjoyment of the bara for a period of 12 months and what then follows is indeed very important. The exact expression used is this: - Mijkar vki dslks mlh oä [kkyh dj vkius lqiqnz dj nslkaa** In other words Mana agreed that at the end of the aforesaid period of 12 months he would vacate the bara and make it over to the landlord whenever the latter would ask him to do so. To me it appears that there is more than one way of looking at this document. In the first place, it may be said that the undertaking which the lessee gave in the very initial part of the rent-note governed everything which came thereafter. Interpreted in this way, the position that would be arrived at is that the lessee agreed that he would vacate the bara as soon as the landlord might ask him to do so. If this way of reading the rent-note is correct in the sense that it overrides all what has been stated in the subsequent part thereof, then there can be no doubt that the rent-note in question brought about a tenancy between the parties which was not at all a tenancy for a fixed period but was a tenancy at will, pure and simple. Learned counsel for the respondents, however, suggests that such an interpretation does not take sufficient notice of and give full effect to what was stated in the subsequent part of this rent-note wherein it was stated that the lessees would remain in enjoyment of the bara for a period of 12 months. In other words his contention is that this was an essential part of the entire arrangement arrived at between the parties and the intention undoubtedly was that the lessees could not be asked to quit the bara within the stipulated period of 12 months, and, therefore, what was stated earlier, namely, that the lessees would vacate the bara whenever the lessors would ask them to do so should be read subject to what was stated later,and that, read in this way and as a whole, the document clearly intended that the tenancy was one for a fixed period of 12 months. I have given the matter my very careful and anxious consideration, and I am free to confess that it is possible to read the rent-note in question as bringing about a tenancy for 12months certain;but that by no means amounts to a tenancy for a fixed period as would be clearly evident from the subsequent wording of the rent-note to which attention has already been drawn above. This part of the rent-note is worded like this: - Mijkar vki dslks mlh oä [kkyh dj vkius lqiqnz dj nslkaa** In other words, the lessees clearly undertook that after they had enjoyed the use of the bara for a period of 12 months, they would vacate it whenever the landlord would ask them to do so and thus the tenancy was to continue unless the latter notified otherwise. It is clear, in my opinion, that the fallacy in the argument of learned counsel really lies where he considers this wording to be entirely superfluous or vague, and, therefore, of no effect. With this latter submission I am entirely unable to agree. The rent-note, putting the most favourable construction thereon so far as the defendants-respondents are concerned, created a tenancy, in my opinion, which was to ensure for a period of 12 months certain, but thereafter it was to be a tenancy merely at will. Admittedly, we are not concerned in this case with the period between 1986 to 1937, which was a period of 12 months for which the respondents, according to their submission, could, in no case, be evicted from this bara. So far as the period subsequent to Samwat year 1987 is concerned, however, there came into existence, to my mind, a further tenancy between the parties, which was a tenancy at will, and I have no doubt that this tenancy did come into existence by the very terms of the rent-note in question, because it is nobody's case that the lessors had asked the lessees to get out or the lessees had themselves quitted the land. In this view of the matter, I am disposed to come to the conclusion that so far as the period subsequent to Smt. 1987 goes, a tenancy at will came into existence between the parties and this could by no stretch of imagination be characterised as a tenancy for a fixed term. If this view of the whole matter is correct, as I have no doubt that it is so then the conclusion of the learned District Judge that this was a case of a tenancy for a fixed term which entailed in its consequence the determination of that tenancy by sheer efflux of time cannot possibly be sustained as correct. The period of 12 years under Art. 139 of the Limitation Act begins when the tenancy is determined. When did the tenancy determine in this case? Certainly not at the end of Smt. year 1987. The correct position is that it could only be determined either by the landlord sending out a demand for possession to the lessee or by the death of the tenant or the landlord whichever is earlier. So far as the demand is concerned, the plaintiffs appellants gave notice to the respondents to vacate the bara on the 2nd March, 1951, and ordinarily the tenancy would have come to an end on that date; but there is an earlier point of time at which the tenancy can be said to have been determined in the present case and that was when the lessor Bulidan Singh died. It is not in dispute that Bulidan Singh died on Jeth Vadi 10 Smt. 2000 (corresponding to some time in June, 1943 ). At the earliest, therefore, the tenancy can be taken to have been determined in the present case in June, 1943 and not earlier. The present suit was brought on the 24th April, 1951, and is, therefore, clearly within limitation. I hold accordingly. On the aforesaid finding, the suit for recovery of possession must be decreed. As for the arrears of rent, learned counsel for the respondents suggests that no decree for rent as such can be passed in favour of the heirs of the original landlord. That, to my mind, is a sheer techn (icality and if a decree for rent as such cannot be passed, certainly one for damages for use and occupation could be passed, and I pass it accordingly.
(3.) THE result is that I allow this appeal, set aside the judgment and decree of the learned District Judge and hereby award a decree that the defendants respondents shall be evicted from the Bara in suit and that they shall make over possession of the same to the plaintiffs appellants and further that they shall pay a sum of Rs. 7/8/- (Rupees seven and annas-eight) as damages for use and occupation thereof for six years preceding this suit. THE defendants respondents shall bear the costs of the plaintiffs appellants in all the courts. Before parting with this judgment, I should like to point out that the legal controversy which has occupied a good deal of time this Court as well as, I dare say, of the court below, need not have been allowed to be raised at all because the case of the defendants in the trial court was substantially this that the relationship of landlord and tenant never come into existence between the parties by virtue of the rent not in suit and it never was that the tenancy between the parties was a tenancy for a fixed period and as such had come to be determined at the end of the period of twelve months fixed by the rent note, and, therefore, the plaintiffs' suit which was brought beyond 12 years of that point of time was barred by time. As the point was, however, allowed by the District Judge to be raised before him; and, not only that, as the submission of the defendants on that point prevailed in the lower appellate court and the plaintiffs' suit was dismissed on that ground, it became necessary for this court to deal with the point at length. Leave for further appeal refused. .;