(2012) 259 KLR 294
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934
Ex.FA.No. 8 of 2010 B
(AGAINST THE ORDER DATED 6.1.2010 IN E.A.NO.41/09 IN E.P.NO.7/08 IN FD.NO.953/74 IN OS.NO.1/1964 ON THE FILE OF THE DISTRICT COURT, PALAKKAD).
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2012 ALONG WITH EX.F.A. NOS.12/2010 AND 13/2010, THE COURT ON 29/06/2012 DELIVERED THE FOLLOWING:
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
Ex.F.A.NOS.8, 12 AND 13 OF 2010
Dated this the 29th June, 2012
J U D G M E N T
K.M. Joseph, J.
The Appeals being connected, they are disposed of by this common Judgment.
2. The three Execution First Appeals are filed by defendants 16 to 21 in O.S No.1 of 1964 on the file of the District Court, Palakkad. Ex. F. A. No.13/2010 is filed against the order in EA.No.33/99. Ex. F. A. No.8/2010 is against the order in EA.No.41/10. Ex. F. A. No.12/2010 is directed against the order in EA. No.38/09. The said Suit, OS.No.1/64 was one for partition. Following a preliminary decree, a final decree came to be passed. As per the final decree, the appellants who are, in fact, the legal heirs of the deceased first defendant, were alloted B Schedule property in Ext.C3 Report. The final decree is dated 21/02/2003. The appellants filed EP. No.7 of 2008 for taking delivery of the B Schedule property. According to them, they were constrained to seek police aid. When the Amin went to take delivery of the properties, delivery was obstructed by the respondents in the respective Appeals. The Amin returned the delivery warrant. It was thereafter that the Applications were filed by the respondents purporting to be under Order XXI Rule 99 of the C.P.C. Paragraphs (2), (3) and (4) of the common impugned order read as follows:
"2. EA.No.33/2009 is filed by one M/s. South Coast Spices Export (P) Limited represented by its Managing Partner. According to them, the properties scheduled to the petition having an extent 274.20 acres is a portion of 909 acres which originally belonged to Vengunad Kovilakam of Kollengode. That property was leased out to one William Espants Watts Esquire for a period of 75 years as per document No.2254/1897 with certain conditions. Subsequently the lease hold right was assigned to Anglo American Direct Tea Trading Corporation Limited. As per Document No.1098/1931 five acres of Bangalow site was also leased out by the Kovilakam in favour of Anglo American Tea Trading Corporation Limited for a period of 43 years. By Document No.20/1945, the Anglo American Tea Trading Corporation assigned their rights over the property in favour of the Amalgamated Coffee Estate Limited. While so, by Document No.2153/1969, Amalgamated Coffee Estate assigned 410 acres in favour of Mathew T. Marattukulam, 329 acres in favour of Mrs. Annakutty Mathew by Document No.2154/1969 and 175 acres in favour of Philomina Thomas by Document No.2155/1969. The above three persons assigned their right over the properties in favour of M/s. K.J. Plantations by Document No.953/1978. The partners of the above plantations executed a power of attorney in favour of one M.S.M. Haneefa authorizing him to sell the properties. Thereafter, Haneefa executed eight sale deeds namely Document Nos. 2781 to 2788 of 1990. Four documents were in favour of the petitioner and the remaining four were in favour of Meera Sahib, Biyathikannu, Shajahan, Beepathumma, Vijayan Nair, Liyakat ali Khan, Rehmath Beevi, Asgar and Anil. M/s. K.J. Plantations filed O.S.No.553/1991 in the Sub Court, Palakkad challenging the power of attorney executed in the name of Haneefa and also for setting aside the sale deeds executed. The Sub Court ordered to divide the properties involved in the above eight sale deeds into 100 equal shares and 40 such shares are be allotted to M/s. K.J. Plantation and 60 shares to the other assignees including the petitioner. So, according to the petitioners, M/s. K.J. Plantations are entitled to get 365.60 acres out of 914 acres. The petitioner is entitled to get 274.20 acres and the balance 274.20 acres to the other assignees. Out of the property described as item Nos. 1 and 2 in the B schedule in the E.P. they are entitled to get 274.20 acres and they are in possession and enjoyment of that property. The decree holders are not entitled to get delivery of that property and they are not entitled to dispossess the petitioner in execution of the decree. Hence, the petition is filed for declaring the title and possession of the petitioner over 274.20 acres of property described in the schedule.
3. E.A.No.38/2009 is filed by nine persons namely Asgar and others. They also raised identical contentions. They are the assignees of Haneefa who is the power of attorney holder of M/s. K.J. Plantations. According to them, four sale deeds executed by Haneef are in their favour and in the decree passed in O.S.No.553/1991 in the Sub Court, Palakkad, their right was declared and they are entitled to get 274.20 acres. They are in possession and enjoyment of that property and the decree holders are not entitled to get delivery of that property. So in order to declare their right over 274.20 acres of the land, they filed this petition. 4. E.A.No.41/2009 is filed by M/s. K. J. Plantation raising identical contentions. According to their contentions, they are the assignees of the property from Mathew T. Marattukulam, Annakutty Mathew and Philomina Thomas. They obtained the property by document No.953/1978 executed by the above persons. According to the petitioner, M/s. K.J. Plantations consists of three estates that is Mount Rubi Estate, which is item No.1 in the E.P., Saphire Estate which is item No.2 in the E.P. and Anamada Estate, which is allotted to defendants 7 to 10. They filed O.S.No.553/1991 in the Sub Court, Palakkad challenging the power of attorney in favour of Haneefs and also for setting aside the eight sale deeds executed by him as the power of attorney holder. By the decree passed by the Sub Court, the petitioner is entitled to get 40 shares out of 100 shares. That decree is challenged by the petitioner and that matter is pending before the Honourable High Court. According to the petitioner, the decree holders are not entitled to get delivery of the property which are in their possession. The decree holders are not entitled to get delivery of items No.1 and 2 in the E.P. Schedule and they are also not entitled to dispossess the petitioner. Hence they filed this petition for declaring their right over 914 acres of properties described as Item Nos. 1 and 2 in the E.P."
3. The Applications were opposed by the appellants. They filed objections which are substantially referred to in the order as follows:
"It is admitted that the property was originally leased out to William Espants Watts Esquire for a period of 75 years and it is also admitted that the property was vested with Anglo American Direct Tea Trading Company by Document No.1098/1931. The respondents also would admit that 5 acres of bungalow site was leased out to Kovilakam in favour of the above said Company for a period of 43 years. According to the respondents, the documents executed by Anglo American Direct Tea Trading Company are during the pendency of the suit namely O.S.No.1/1964. Those documents are executed without the knowledge of the respondents and without giving any notice to the receiver appointed by the Court in O.S.No.1/1964. The lease was not renewed. The subsequent documents are not genuine. The lease is terminated by efflux of time as per Section 111(g) of the Transfer of Property Act. The lease was not renewed and they have relinquished their leasehold right after the expiry of the period. Therefore, the lessors are entitled to re- enter the property as per the terms of the lease. The claimants are strangers and they have no independent right or possession. The decree in O.S.No.553/1991 will not bind the respondents, since they are not parties. The claimants have no subsisting right or possession or interest in the property. The property was in the possession of the Receiver appointed in O.S.No.1/1964 from 1964 onwards and he was administering the property. The Official Receiver appointed by the court was directed to recover dues from the respective lessees and he was also directed to take possession of the property and in pursuance to the direction, the Receiver took possession of the property from the lessees and thereafter the property was in their possession. Therefore, the petitioners have no possession over the property. The petitioners have no right or interest in the property and they are not entitled to obstruct the delivery. The decree holders are entitled to get delivery of the property in execution of the decree."
4. Counter affidavit filed on behalf of the appellants in E.A.33/2009 inter alia reads as follows:
There is no prima facie claim for the claimants in the matter. They are strangers and there is no lessor lessee relationship between the claimants and the appellants. It seems that the claimant has raised her claim on the basis of fraudulent document and the judgment in O.S.553/1991 to which the appellants and the original lessor were not made parties.
5. In the counter affidavit filed to E.A.41/2009 and E.A.38/2009 it is also inter alia stated that there are four boundaries mentioned in E.A.38/2009 as one and the same property claimed in E.A.33/2009 and E.A.41/2009 and therefore essentially the claimants are claiming the same property in their claim petitions. There are other contentions also which we need not refer to in the pleadings as the issues which are projected before us are dealt with us.
6. There was no oral evidence. Exts.A1 to A17 are photocopies marked with the consent of both the parties. A1 purports to be the lease of the year 1897. A2 is the copy of the agreement between the lessor and Anglo American Tea Trading Corporation Ltd dated 17.10.1931. A3 to A5 are the assignments in the year 1969 by Amalgamated Coffee Estate Ltd in favour of Mathew T. Marattukulam, Smt. Annakutty Mathew and Mrs, Philomina Thomas respectively. A6 purports to be the sale deed executed by the assignees under A3 to A5 in favour of M/s. K. J. Plantations. It is in 1978. A7 to A14 purport to be assignments by the power of attorney holder in favour of various persons.
7. We heard Shri H. Badruddin, learned counsel for the appellants and Shri G. Unnikrishnan, Shri G. P. Shinod and Shri P. R. Venkitesh on behalf of the contesting respondents/claimants.
8. Findings of the Execution Court: The total extent in items 1 to 3 in B Schedule would come to 725 acres. Item No.4 has an extent of 15.72 acres and item No.5 has an extent of 13.16 acres. It is found that the petitions are concerned with items 1 & 2 in B Schedule. Item No.1 is Mount Ruby Estate having an extent of 175 acres and item No.2 is Saphire Estate having an identical extent. Item No.3 is Karimala Estate having an extent of 375 acres. The 914 acres originally belonged to Vengunad Kovilakam of Kollengode. The partition suit was filed by members of the Kovilakam. As per Ext.A1, 909 acres of property was leased out in the year 1897 to William Espants Watts Esquire. The lease was for 75 years. Subsequently, the Anglo American Direct Tea Trading Corporation Ltd. obtained assignment of the leasehold right of the above 909 acres. By Ext.A2, the Kovilakam has leased out 5 acres of Bungalow site also in favour of the aforesaid company for a period of 43 years. Admittedly, the said Corporation was in possession of the properties and was paying premium to the lessors. Even before the expiry of the lease in the year 1972, in the year 1945, the Corporation assigned that property to Amalgamated Coffee Estate Ltd. The Amalgamated Coffee Estate Ltd. executed three assignments in the year 1969 in respect of 914 acres in favour of one Mathew T. Marattukulam, his wife and daughter by Exts.A3 to A5 documents. By Ext.A6, M/s. K. J. Plantations who is the respondent in Ex. F. A. No.8 of 2010, got assignment of the leasehold right of the entire property. This was in the year 1978. M/s. K. J. Plantations in turn executed a power of attorney in favour of one Haneefa and in pursuance of the power of attorney, Haneefa executed eight sale deeds which were produced and marked as Exts.A7 to A14. They are of the year 1990. Of the same, four sale deeds were in favour of the respondent in Ex.F.A No.13 of 2010. The remaining four were in favour of the respondents in Ex. F. A No.12 of 2010. There was reference to the litigation filed by M/s. K. J. Plantations challenging the power of attorney and the sale deeds. Ext.A15 is the judgment in the suit. The court ordered partition. Thus, it is stated that the respondent in Ex. F. A. No. 13/2010 is claiming 274.20 acres. The respondents in Ex. F. A. No. 12/2010 are also claiming 274.20 acres. There is also reference to appeal filed by M/s. K. J. Plantations before the High Court. It was noted by the court that the parties in OS. 1/1964 are not made parties in the suit filed by M/s. K. J. Plantations.
9. The contesting respondents are strangers to the suit. It is found further that a person who is in possession who claims independent rights can approach the court for establishing his right even before actual dispossession of the property. Though delivery was obstructed by the respondents, the appellants have not moved for applying for removal of the obstruction. There is no legal bar in the Applications filed by the respondents and their right can be enquired into in the light of the decisions reported in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal And Another (1997 (3) SCC 694) and also in Babu Raj v. Vasanthi Devi (2008 (4) KLT 761). By 1972, when the period of the lease expired, the property was changed to the hands of several persons. There was no objection from the side of the lessor at any point of time. The leasehold right as per Ext.A1 is an assignable right and there is no legal hurdle in assigning the same. The possession of the property by the respondents cannot be disputed in the light of the documents. Even after the expiry of the lease, there was no demand from the lessor for getting possession of the leased properties. There is nothing to show that the lessees had surrendered possession of the properties after expiry of the lease period. On the other hand, documents executed by them even after the expiry of the lease, indicate that they were in actual physical possession. It was found that though the appellants contested, the Receiver appointed by the court in OS.No.1/64 was in possession, it is not supported by any evidence. The copy of the Receiver's report is not produced and also there is nothing to show that the court ordered the respondents to surrender possession. If there was such an order, certainly the respondents could have appeared and contested. Ext.A16 possession certificate also supports the claim of possession by the respondents. The lease in favour of the predecessors of the claimants was even before the institution of the suit. The lessees were not made parties to the partition suit and, therefore, they are not bound by the decree in the suit. The appellants are not entitled to get actual physical possession from the respondents. For that, they have to file a suit impleading them also as parties. It is further found that from the documents produced in the case, it can be seen that they got assignment of the leasehold right and they are in physical possession of the properties and they cannot be dispossessed in execution of the decree. The respondents were able to establish that they have got subsisting interest and possession in the property and it was therefore found that the appellants are not entitled to get delivery of the actual physical possession of items 1 and 2 of B Schedule in execution of the decree. On this basis, the claim petitions filed by the respondents were allowed.
10. Contentions of the appellants:
(1) The Applications which are the subject matter of Ex.F.A.Nos.8 and 12 of 2010 are barred by limitation.
(2) The execution schedule property (B Schedule) covered three plantations, that is Mount Ruby Estate, Saphire Estate and Karimala Estate. Mount Ruby Estate and Saphire Estate form the subject matter of the Appeal. It cannot be said that the plantations, Mount Ruby Estate and Saphire Estate cannot be identified.
(3) The total extent of Mount Ruby Estate as per Ext.A4 document is 329 acres and the extent of Saphire Estate is 175 acres. In excess of 175 acres in Mount Ruby Estate, belongs to the sharers in A Schedule. That excess property is likely to be purchased by the appellants and the excess found in Mount Ruby Estate will be left for the share of the plaintiff and respondents 7 to 10 to whom A schedule is allotted and the respondents in these Appeals have no locus standi to raise the contention of ambiguity in the extent of M/s. K.J. Plantations described in the final decree as they are strangers and trespassers based upon Ext.A6 which is a void sale deed.
(4) The lessees had attorned to the lessor in respect of Exts.A3, A4 and A5 even prior to the execution of the sale. The rent and customary renewal fees were paid by the lessor until the leasehold right was transferred to the assignees under Exts.A3, A4 and A5. From 1969 onwards, neither rent, nor customary renewal fee had been paid by the aforesaid persons.
(5) Reliance was placed on condition (4) of Ext.A1 which, inter alia, provides that if the rent is in arrears for two consecutive years, the lessors would be at liberty to enter upon the said premises and whereupon the terms of 75 years would be absolutely determined. The argument is that in view of non-payment of rent for two consecutive years by the lessees from 1969, the lease was determined in the year 1971. Condition No.(8) of Ext.A1 obliging the lessees to pay customary renewal fees, is relied upon by the appellants and it is contended that from 1969, no customary renewal fees had been paid.
(6) The lease was determined in the year 1972 on the expiration of the fixed term and therefore the lessees' right came to an end. There is no notice under Section 106 of the Transfer of Property Act required for the reversion as per law.
(7) Shri Mathew T. Marattukulam and his wife and daughter had lost their leasehold right under Exts.A3, A4 and A5 properties after 1971 and they were, therefore, holding the properties in spite of cessation of the lease without any valid title and interest. Their continuance in possession after 1971 when the lease was determined, will amount to tenants at sufferance.
(8) Ext.A6 Sale Deed in the year 1978 executed by the transferees in Exts.A3 to A5 in favour of M/s. K.J. Plantations is void for the following reasons:
(i) The executants of Ext.A6 had no right, title or interest to assign and no scrap of paper was produced by the respondents to rebut the presumption and that the lease had come to an end in the year 1972 on the expiry of the lease.
(ii) No rent was paid and no renewal fee was also paid. Hence their status was shifted as trespassers or strangers as they lost their leasehold right by law, even though they were in possession of the property.
(iii) Possession by the transferees under Ext.A6 was never legalised or regularised.
(9) Reference was made to the statement in Ext.A6 that the vendors had got salable right, interest and possession over their respective properties, to contend that Ext.A6 was vitiated by fraud and illegality. Reference was placed under Section 23 of the Contract Act and other facts.
(10) The subsequent sale deeds and transfers are void. The right of the lessees under a fixed term lease would end with the expiry. After the lease, the person in possession without the consent or assent, it may be only a tenant at sufferance. Shri Mathew T. Marattukulam had become a tenant at sufferance after the determination of the lease in 1972.
(11) The non-impleadment of the respondent in OS. No.1/64 and E.P.No.7/08 cannot be attributed against the appellants. It is contended that the appellants are the legal heirs of the first defendant. They could not imagine or apprehend a portion of the plaint schedule property which was to be allotted to their share while passing of the final decree. Only at the time of passing of the final decree, the appellants became aware of the share of the scheduled property. It is contended that the Court of the District Judge was not bound to implead the strangers of trespassers, like the respondents, since they did not take steps to get themselves impleaded. It is contended that the trespassers of the plantations upto 1969 were valid lessees and assignees of lessees who had attorned the lease with the landlords by making payments of rent and customary renewal fees from time to time. Therefore, there is no merit in the argument of the respondents that the landlords were aware of the existence of the lease as it was stated in the written statement filed in OS.No.1/64 that the properties were leased. It is contended that the written statement was filed when there was a valid lease. There was no assent from the appellants or predecessors to allowing the respondents to occupy the plantations. The court should have decided the matter under Order XXI Rules 101 and 102 of the CPC instead of directing the appellants to file a fresh suit. Reliance was placed on the report of the special messenger deputed by this Court in the Appeals to the effect that the place of residence and the address shown in the claim petitions, particularly that of M/s. K.J. Plantations could not be traced out by his direct visit to Quilon. It is to be presumed that M/s. K.J. Plantations was not a legal entity, but it is only a stamp paper brand having no existence as per law.
(12) It is contended on the strength of Order 41 Rule 24 CPC that the Appeals can be disposed of on the available documentary evidence, i.e. from Exts.A1 to A14 marked by the court below and the appellants report that they are not pressing IA.No.1062/2011 filed under Order 41 Rule 27 and its contents. Exts.A16 and A17 are irrelevant. Ext.A15 is not binding.
(13) A tenancy created by holding over is a new tenancy. But, it requires a bilateral act. If there is no consent for possession after determination of lease, the lessee becomes a tenant at sufferance who has no right to a notice to quit before he is ejected. A tenant at sufferance cannot be transferred to another, nor does it pass on his death. Mere inaction on the part of the lessor does not result in holding over. It requires some positive act on the part of the lessor. The act of holding over does not necessarily create tenancy of any kind. A tenant at sufferance has a bare possession without any right. It is contended that the respondents in their claim petitions contended that they are entitled to leasehold right. There is no distinct explanation of the words "leasehold rights". The claimants in Ex. F. A. Nos. 8 and 13 of 2010 are assignees of tenants at sufferance under Ext.A6 whereas the claimants in Ex.F.A.No.12 of 2010 are not claiming any transfer of right to them either by the lessees or assignees of the lessees. They do not satisfy the requirements of the contract of lease. The respondents are not statutory tenants.
(14) A trespasser cannot create any interest in the property. Only persons who had been lawfully inducted to the property could acquire the legal status of tenancy.
(15) The assignee of a lessee is not a lessee. The respondents have no independent right, title or interest over the property.
11. Per contra, learned counsel for the contesting respondents/claimants would contend that the order of the court below is only to be sustained. According to the contesting respondents, it has been specifically pleaded in the claim petitions that they have leasehold right. It is submitted that the documents produced indeed show that they are in possession and it was correctly found by the court below that they have leasehold right. It is contended that even accepting the argument of the appellants that the lease came to an end by efflux of time specified in Ext.A1 in the year 1972, the lessees under Exts.A3 to A5 continued in possession till the year 1978 and they executed Ext.A6 and thereafter the assignees continued and there have been subsequent assignments. Admittedly, none of the assignees from Ext.A3 onwards are made parties. Therefore, they are strangers to the suit OS.No.1 of 1964. Ext.A1 does not prohibit any assignment of the leasehold right. Therefore, under Section 108 of the Transfer of Property Act, it is open to the lessees to assign. The long inaction on the part of the landlords to take any action indicates that there is a lease by holding over. It is further contended that a tenant upon determination of a lease would even if there is no holding over, be a tenant at sufferance. He cannot be evicted except by due process of law and separate suit is necessary as found by the court below. Reference was made to the written statement of the first defendant under whom the appellants claim and absence of challenge to Ext.A1 lease followed by the subsequent assignments to show that the parties to the suit who had, in fact, called in question various other transactions had accepted Ext.A1. It is contended that since there is no dispossession, it cannot be said that the claims filed by the respondent are barred under Article 128 of the Limitation Act. According to them, even if it is found that there is no specific pleading in regard to holding over, in the circumstances of these cases, opportunity may be given to amend the pleadings. It is further contended that the decree obtained in OS.No.1 of 1964 cannot be said to be a decree for recovery of possession. Reference is made to Order XXI Rules 35, 95, 97, 99, 101 and 102 of CPC to contend that once it is found that there is tenancy, actual delivery could not be made in the execution proceedings and what the court below has ordered is beyond reproach. Be it a tenant at sufferance or by holding over, it cannot be gainsaid that the contesting respondents are in possession and they are not trespassers. They can be ousted only as per law. Possession is part of the bundle of rights and it can be transferred.
12. Let us now examine the case law relied on by the parties. In Kunj Behari Lal Gupta v. Shri Shivji Maharaj, Birajman Mandir and another (AIR 1973 Allahabad 217), a learned Single Judge of the Allahabad High Court was dealing with a case under the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The Court, inter alia, held as follows:
"The definition of tenant in the Act is based on doctrine of privity of contract and not on privity of estate. It mentions of a contract express or implied as an exception to the liability for payment of rent, i.e., payability of rent arises out of a contract and is not based on some doctrine in equity such as privity of estate."
The learned Single Judge also proceeded to hold as follows:
"There is no provision in the scheme of the Act which describes a transferee or assignee of absolute interest of lessee in the property leased as a lessee or tenant, or merges the personality of the transferee into that of the lessee so as to vest in him the privity of contract also. Section 105 which confines the relationship of lessor and lessee to the parties to the contract places emphasis on contractual relationship."
In N.H. Thadani v. Chief Settlement Commissioner (AIR 1958 Punjab 314), a Bench of the Court has dealt with the distinction between a tenancy at will and a tenancy at sufferance. We will deal with the case later in the judgment.
13. In Baban Purnaji Kale v. Champabai and Ors. (AIR 1949 Nagpur 336), the Court, inter alia, held as follows:
"The question then is whether their failure to take any action against him immediately after the expiry of the lease can be construed as an assent to his continuing in possession even after the expiry of the lease. It has been held in Gopal Chandra v. Khater Karikar A.I.R. (17) 1930 Cal. 262 that the mere act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. Something more must be shown to establish that the lessor assented to the lessee or sub-lessee continuing in possession. Thus, if there is evidence to show that rent was demanded from the lessee or sub-lessee or a suit for rent had been filed against him or something of the kind was done, a presumption would arise under the section that the lessor assented to the lessee or sub- lessee continuing in possession. There is no evidence of this kind here and, therefore, it is clear that no liability can be fastened on the applicant by virtue of Section 116 T.P. Act."
In Gopal Chandra Rudra and Another v. Khater Karikar and Others (AIR 1930 Calcutta 262). the Court, inter alia, held as follows:
"The act of holding after the expiration of the term does not necessarily create a tenancy of any kind, it being in each case a question of fact, what the intention of parties was. At the common law, if the tenant continues in possession by consent of his landlord, he is deemed prima facie a mere tenant at will. In England in the absence of rebutting evidence, the inference arising from payment and acceptance of rent is that the tenancy is tenancy from year to year and prima facie the renewed tenancy is subject to all the terms of the expired tenancy which can be applied to a tenancy from year to year. But, these doctrines of English law are not applicable to the whole extent under the Bengal Tenancy Act."
In Firm Sardari Lal Vishwa Nath and Others v. Pritam Singh (AIR 1978 SC 1518), the Apex Court was actually dealing with the case of a statutory tenant and the question which arose was whether such a statutory tenant is entitled to notice under Section 106 of the Transfer of Property Act before an action for ejectment is commenced. The court held that the statutory tenant is not entitled to a notice under Section 106. The Court further held as follows:
"Where the lease determines by efflux of time and the tenant continues in possession under the protection of the Rent Restriction Act, he acquires a status of irremovability unless there is something to show that he is a tenant holding over, mere payment of rent without necessary animus not being sufficient. Such a tenant for the sake of convenience is described as a statutory tenant. It would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of the Rent Restriction Act, that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit."
In L. Suraj Bhan and Others v. Hafiz Abdul Khaliq (AIR (31) 1944 Lahore 1), the Divison Bench held that upon the expiry of a lease for a fixed term, the landlord is automatically entitled to eject the tenant. It was also held that there is no necessity to insert a provision to that effect in the lease deed itself. In Hukum Chand v. Smt. Begum and Others (AIR 1982 Allahabad 215), a learned Single Judge held as follows:
"A lessor having knowledge of the fact that only two days thereafter he will cease to be a lessor of which the lessee also had knowledge cannot execute a lease deed for a period subsequent to his ceasing to be the lessor and no reliance can be placed by the lessee on such a document and the transferee is not bound by the lease deed which is outcome of fraud. Where a party to the deed having full knowledge of the fact that the person executing lease in favour of the lessee, namely, the lessor would cease to have any interest in the property, gets the lease deed executed in his favour it is clearly an act of fraud per se and as such the subsequent transferee cannot be bound by such an act."
In Narayan Rana v. Balasore Municipal Council (AIR 2001 Orissa 1), a Division Bench of the Court held as follows:
"Under Sec.106 lease of immovable property for agricultural or manufacturing purposes where there is no contract to the contrary, shall be deemed to be a lease from year to year lease of immovable property for any other purpose shall be deemed to be a lease from month to month. In this case, provision of Section 106 of the T.P. Act is not attracted as the period fixed under the contract was more than one year and it cannot be held to be either a lease from year to year or month to month. Section 111(a) of the T.P.Act lays down that lease is determined by efflux of time limited by the contract. As the lease in question has come to an end by efflux of time, no notice as required under Sec.106 was necessary. There is no evidence that after determination of the lease the respondent received rent or agreed to the appellant's continuance in possession. The doctrine of `holding over' has no application when the person in possession is not a lessee or tenant. After the expiry of the lease, the appellant cannot be held to be lessee or tenant. Since the appellant has no right to continue to rear or catch fish after expiry of lease, the decree for eviction cannot be faulted with."
In Bishen Sarup v. M. Abdul Samad (AIR 1931 Allahabad 649), The Division Bench of the Court, inter alia, held that Section 106 does not apply to the case of a lease for a fixed term when the term has expired. It was also held therein that the provisions contained in Section 116 regulates the rights of a lessor and lessee, when a suit for ejectment is brought. In M/s. Jagatjit Industries Ltd., New Delhi v. Rajiv Gupta (AIR 1981 Delhi 359), the matter arose under the Delhi Rent Control Act. It is held that the lease stands determined on the expiry of the period and eviction notice was not necessary. In Mst. Sardaran and Others v. Sunderlal Baldeo Prasad and Others (AIR 1968 Allahabad 363), the Court, inter alia, held that when the plaintiff relied on a sale deed of 1896, the failure to prove the loss of the original rendered the tendering of certified copies to prove the contents of the sale deed impermissible.
14. We would consider the case law relied upon by the respondent. In Devaki Amma v. Ramachandra Kammathi (1955 KHC 37) a Full Bench of the Court proceeded to hold inter alia that all stipulations under an expired lease will be deemed to be imported into an implied lease by holding over unless they are altogether unconnected with the transaction of lease. That was a case where the expired lease contained a clause providing for security for the rent. The Court held the term of lease is within the meaning of Sec.106 of the Transfer of Property Act and the landlord would be entitled to enforce security in respect of arrears accruing after the expiry of the original term of lease and during the currency of lease by implication created by holding over. The Court further held as follows:
"The principle of implied tenancy from year to year on account of the assent of the landlord to the tenant continuing after the expiry of the period of a lease was being recognised and given effect to in India following the English Law before the enactment of the Transfer of Property Act. Sheikh Enayatoolah v. Elaheebuksh (1864 Weekly Reporter, Gap No.42, Nocoordas v. Jewraj (1874) 12 Beng. L.R. 263, Ram Khelavan v. Soondra (1867) 7 W.R. 152, Sayaji v. Umaji (1867) 3 Bom. H.C. 27, A.C., Chaturi Singh v. Makund Lall (1881) ILR 7 Cal. 710). Even payment of rent is not necessary to create a tenancy by holding over under S.116 of the Act as it only requires the consent of the landlord to continue the tenancy. AIR 1929 Calcutta 553 Soliman Moosaji Asmal v. Jatindra Nath Mondal."
In Subramonia Iyer v. Madhavi Amma (1963 KLT 1009) a Bench of the Kerala High Court was dealing with an appeal by an unsuccessful plaintiff in a suit for recovery of possession. It was found that the tenancy created under Ext.A1 in the said case was tenancy for a certain period. It is further held that if the tenant continued in possession thereafter he was holding the property as a tenant at will. It was further held as follows:
"9. S.116 of the Transfer of Property Act would imply that it is only if a tenant remains in possession after the expiry of the tenancy that the tenant can be said to hold over. In such a case if the landlord accepts the rent or otherwise assents to the tenant continuing in possession a case of tenancy by holding over will arise. But according to Ext.A1, the tenancy could be determined after the expiry of the period of 3 years only by a demand by the landlord. So long as there is no case that that demand was made the tenant must be deemed to be in possession under the terms of the tenancy created by Ext.A1. As that tenancy has not been determined the tenant was not really holding over but was in possession by virtue of the tenancy at will created by that document."
In Cherooty alias Kuttappan and Others v. Sarada Amma and Others (1972 KHC 280 = 1972 KLJ 373) the tenant under a fixed term remained in possession after the term. A learned Single Judge of this Court held that a tenant holding over with the assent of the landlord would have the rights of a tenant recognized under the Transfer of Property Act and he will have alienable and heritable right and therefore his legal representatives would be holding the property as tenants. The Court inter alia held as follows:
"5. When a lease for a term is granted, on the expiry of the term the lease determines. S.111 provided for circumstances under which a lease of immovable property would be determined. Sub-s. (a) provides that such lease determines by efflux of time limited by the lease. When a lease is so determined the continuance in possession of the lessee is no longer as a tenant. No doubt the term tenancy at sufferance is a well accepted concept under the English law. But into the scheme of the Transfer of Property Act 1882, it is not necessary to import this term. The plain terms of the Transfer of Property Act make it evident that if the lease be for a term and that term expires and nevertheless the lessee remains in possession thereafter he would continue on the same terms of lease provided the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession. In that event the tenancy would continue as if renewed from year to year or from month to month according to the purpose for which property is leased. A tenant holding over with the assent of the landlord would, for all purposes, have the rights of a tenant recognised under the Transfer of Property Act. He will have an alienable and heritable right. Therefore his legal representatives Would be holding the property as tenants. In the case of a lease for a term if it is shown that the tenant continued to hold over the property after the expiry of the term with the assent of the landlord and subsequently on his death his legal representatives continued to hold such possession the plaintiff can sue to recover the property even beyond the period of 12 years from the date of death of the tenant. It is sufficient if he shows that the tenancy which continued With the legal representatives was determined only within a period of 12 years prior to the date of suit."
We may also notice paragraph 7 which reads as under.
"7. The term of the lease, Ext.A1, expired on 16- 4-1943. The tenants lived nearly for 5 years thereafter: In a case where the landlord sets up a plea that the tenants continued to hold over as tenants with the assent of the landlord, the burden of showing that, notwithstanding the determination of the tenancy by efflux of time, the tenants continued to be so hold over is on the landlord. It is for him to show in such cases that there has been assent by him to the continuance of the tenant under the tenancy. Assent may be shown when there is proof of receipt of rent from the tenant for the period subsequent to the expiry of the term. This is only one of the modes of showing assent to the continuance. If such assent could be shown otherwise that too would be assent. But mere silence of the landlord cannot be taken as amounting to an assent. What could amount to such assent cannot be attempted to be defined as it would be a matter for inference on the facts and circumstances of each case. If the landlord succeeds in establishing such assent the tenancy will be taken to have continued and it will then be for the tenant to show that such tenancy arising by reason of holding over with the assent of the landlord was terminated later and that beyond 12 years prior to the date of suit.
In Jacob Philip v. SBT and Others (1972 KLT 914 FB = 1972 KHC 203) a Full Bench of the Kerala High Court repelled the contention of the appellant that the clause providing for liability to surrender and right to evict, if rent for two consecutive months was defaulted would have operation only during the currency of the lease. It was held that it would apply when there was a tenancy by holding over and notice to quit is not necessary as the term is also statutorily incorporated into the tenancy by holding over. In Union of India v. Andhra Bank Ltd.(AIR 1976 Mad.387) a Bench of the Madras High Court while dealing with the distinction between tenant at will and tenant at sufferance held as follows.
"7. What then is the position, if a tenant holds over in the sense 'continues in possession of the demised premises' after the determination of the lease. One such method by which such assent could be presumed is by acceptance of rent? In other respects, there should be reasonable, but acceptable proof that the landlord has otherwise assented to the tenants continuing in possession after the termination. In all such cases, the act of the tenant is described as a tenant holding over. By such continuance in possession after determination, the person in occupation is called a tenant at sufferance. If such possession is attributable to the consent of the landlord given either expressly or by necessary implication, then he is called a tenant holding over or a tenant at will. But if in a given situation, such consent is not proved, then, he is called a tenant by sufferance."
In Devaki v. Alavi (1979 KHC 12) the Court was dealing with the question whether the suit for recovery by the plaintiff without quit notice under Sec.106 of the Transfer of Property Act is maintainable. The Court inter alia held as follows.
"4. During the continuance of the lease, the lessor is not entitled to recover possession of the property leased. He can recover possession of it only on the determination of the lease. A lease for a term is determined by efflux of time. A lessee remaining in possession of the property after the lease has determined is a tenant at will or a tenant at sufferance depending upon whether his continuance in possession is or is not with the assent of the landlord. A tenancy at sufferance is therefore, obviously, not consensual in character and arises only implication of law. This term is used to distinguish the quondam tenant who came into possession rightfully but remains in possession wrongfully from a trespasser whose entry into possession as also continuance of possession are wrongful. A tenancy at will is a new tenancy created by a bilateral act of offer and acceptance lessee's offer of taking a new lease evidenced by the lessee remaining in possession of the property' after his term was over' and acceptance of that offer by the lessor evidenced by 'a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise': Bhawanji v. Himatlal (AIR 1972 SC 819). Under the English law a tenancy at will is determinable at the will either of the landlord or of the tenant, and so the expression tenant at will. "A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant ; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every tenancy at will must in law be at the will of both parties (a) Like other tenancies a tenancy at will arises by contract binding both lessor and lessee (b), and the contract may be express ) or implied." (Hill and Redman's Law of Landlord and Tenant, 15th Edn.-p.35)."
"A lessee who, with the consent of the lessor, remains in possession after his lease has expired, by effluxion of time and otherwise than in reliance of some statutory provision protecting him from eviction, is tenant at will until some other interest is created, until, for instance, the tenancy is turned into a yearly by payment of rent. (Ibid)."
"A tenancy at will is where lands or tenements are let by one man to another, to hold at the will of the lessor; in this case the lessee is called tenant at will, because he has no certain or sure estate; for the lessor may put him out at any time he pleases. Either party may at any time determine a strict tenancy at will, although expressed to be held at the will of the lessor only, and the landlord may determine it by a demand of possession or otherwise without a previous formal notice." (Wood fall on Landlord and Tenant Twenty Sixth Edition. Para 739, pp.306-307."
The Court agreed with the proposition of law laid down in Subramania Iyer v. Madhavi Amma (1963 KLT 1009.) In Jagdish Balwantrao Abhyankar v. State of Maharashtra (FB) (AIR 1994 Bom. 141) the Court relied on the proposition that the Court has power to grant relief by disregarding the 'nomenclature' of the petition/application. The decision in Mohammed v. Unni (1999 (1) KLT 756 =(1999 KHC 174) was rendered by Justice P .K. Balasubramanyan (as his Lordship then was). Therein the learned Judge has held that the landlord cannot re-enter the premises or deprive the tenant or the former tenant of his possession without recourse to law and by taking up the stand that the tenancy has terminated by efflux of time. The Court held as follows:
"Learned senior counsel Sri.S.Venkatasubramonia Iyer raised a contention that the plaintiff at best was a tenant or a sub tenant whose tenancy or sub tenancy has determined by efflux of time. Counsel submitted that there was nothing to show that the Kerala Buildings (Lease & Rent Control) Act applied to the building during the relevant time. According to counsel thereof, such a tenant who claims to be in possession after the period of his lease has expired and who has not been able to establish a tenancy by holding over, would not be entitled to a decree for injunction against the owner of the building especially in the light of the principle recognized in Premji Ratansey Shah v. Union of India (1994 (5) SCC 547). With respect to learned counsel, I am not able to see much merit in this submission. Even when a tenancy expires by efflux of time, it is not the law in India that the landlord has the right of reentry. The landlord has still to seek recovery of possession from the tenant whose tenancy has expired either by approaching the concerned court or the concerned Tribunal. It is not open to a landlord to re-enter the premises or deprive the tenant or the former tenant of his possession without recourse to law and by taking up the stand that the tenancy has terminated by efflux of time. To permit such a course would be encouraging lawlessness and would be the very negation of the rule of law which we have given unto ourselves when we became a Republic. The title as a tenant, even if the period of tenancy has expired, is sufficient in law to clothe the tenant with a right to retain in possession until evicted by due process of law and to get a decree for injunction against the landlord so as to protect his continued possession. (See State of Uttar Pradesh v. Dharmander Prasad Singh, AIR 1989 SC 997). It is therefore, not possible to accept the contention that even if the plaintiff was a tenant as admitted in the written statement he would still be not entitled to a decree for injunction against the defendant, the landlord of the building, because of the fact that the period of the lease has expired. All that the Supreme Court has now indicated in the series of decisions commencing from Premji Ratansey Shah v. Union of India (1994 (5) SCC 547) is that the decree for injunction should not be granted by the court unless the person who claims the injunction has a colour of tide or right to be in possession. Even a tenant whose tenancy has determined by efflux of time-assuming that he is not a statutory tenant in this case, there being no material either way would have sufficient title to seek a decree for injunction to protect his possession even against the owner of the building whose right would only be to get recovery of possession of the building from him by approaching the appropriate court or Tribunal. I have therefore, no hesitation in rejecting this argument. I may also notice that the case that the tenancy of the plaintiff has come to an end by efflux of time, was not an aspect that was projected before the Courts below and possibly could not have been projected in the light of the specific plea raised in the written statement of a positive surrender of the tenancy in favour of the defendant."
In Ittiyachan v. Tomy (2001 KHC 677) a Bench of the Kerala High Court held that in proceedings under Order 21 Rule 97, Order 21 Rule 99 the claimant must establish a right of possession independent of the judgment debtor and the mere possession by the claimant would not be sufficient. It may be necessary to refer to paragraphs 5 and 6 as the facts are emphasized by the contesting respondents to distinguish the said case.
"5. An obstruction under O.21 R.97 of the Code of Civil Procedure or for redelivery under R.99 of O.21 of the Code of Civil Procedure, can be maintained by a person who is not bound by the decree or who claims an independent right over the property. After the amendment of the Code in the year 1976, mere possession by the claimant would not be sufficient. The claimant has also to show a right to possession independent of the judgment debtor. In that situation, it is necessary for the claimant in the present case, to show that he has got a right in the property which is not affected or which cannot be affected by the decree, in execution of which it was delivered. The claimant makes the claim based only on the recital in the settlement or partition deed under which portions of item No.1 therein were allotted to the sons of Mariya, including the judgment debtor. Party No.1 to that document is the claimant father. Four items were involved in that document. We are concerned with item No.1 therein. Item No.1 was divided into four plots. The northern most 21 cents was allotted to a son, Joy. The portion immediately thereafter and to its south was allotted to another son, Babu. 21 cents to the south of that plot was allotted to the judgment debtor, son. 21 cents to the south of that plot was allotted to another son Johny. Regarding item No.1, the provision was that the sons, to whom portions of the same had been allotted, would have right to sell the property only after the death of the father and if the property was to be sold during the life time of the father, the junction of the father in the sale deed was also necessary. We may notice here that the father, the claimant, was not given any right over the property, even to take the income therefrom during his life time. The only stipulation was that the property could not be sold during his life time without his consent and without his joining the sale deed. But, by the prior clause in the deed, there was an absolute allotment of portions of item No.1 in favour of the sons, including the judgment debtor. The cause that the property could not be sold till the life time of the father or that the father should join the deed if a sale deed is to be executed during his life time could be said to be repugnant to the grant already made. We may notice here that the property that was the subject matter of the settlement or partition was the property left by Mariya, the wife of the claimant and the mother of the judgment debtor. It apparently also included an item of property acquired by Mariya along with her husband, the claimant. In the properties thus set apart to the sons, the claimant had no subsisting right or outstanding claim of right, on the terms of the settlement deed.
6. This is, therefore, really a case where the claimant has no title over the property that was conveyed by the decree for specific performance. He had only a right to join any voluntary alienation by his son without having any right in or over the property. Of course, the argument that the sons could have entered into an agreement for sale only with the junction of the father in terms of Ext.A1 may be correct going strictly by the terms of the said settlement deed. But, since on the scheme of O.21 R.97 and 99 of the Code of Civil Procedure the claimant could get relief only on establishing a right to possession over the property, it has to be held on a true interpretation of the settlement deed that the claimant is not entitled to maintain his claim or obstruction."
In Ramesh Dutt & Ors. v. State of Punjab & Ors. (JT 2009 (12) SC 532) the Apex Court inter alia held as follows:
"15. Title in or over an immoveable property has many facets. Possession is one of them. Unless there exists a statutory interdict, a person in possession may transfer his right, title and interest in favour of a third party. (See Avinash Kumar Chauhan v. Vijay Krishna Mishra (JT 2009 (1) SC 656: 2009 (2) SCC 532)."
Apparently, this decision is cited to support the contention that be even if it is a right of possession which was with the transferees they had right to transfer the said right to the 3rd party. In Rajan and Another v. Soman and Others (2010 (4) KHC 927) the learned Single Judge of this Court held that to attract Sec.53 (2) of the Transfer of Property Act the transfer must be without consideration and with intention to defraud subsequent transferee and transaction is only voidable not void. It was further held that the transaction to be voidable must be intended so by instituting a suit and all ingredients of Sec.53 (2) must be pleaded and proved. The Court held as follows:
"11. The plea of fraud, undue influence and other vitiating circumstances has to be clearly made out in the pleadings. In United India Insurance Co.Ltd. v. Andrew Vivera, 1989 KHC 422: 1989 (2) KLT 348: 1989 (1) KLJ 614: ILR 1989 (2) Ker.482: AIR 1990 Ker. 139 : 1989 (66) Com. Las. 807: 1989 (3) Cur CC 320, it was held: "6. Order 6 Rule 4 CPC provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. The position admits no doubt that allegation of fraud, undue influence and coercion must be set-forth in full particulars and not vaguely. The allegation must be fully stated so that the case can be decided on the particulars pleaded. There cannot be any departure from what has been ordained under Order 6 Rule 4."
"In Bishundeo v. Seogeni Rai, 1951 KHC 252: AIR 1951 SC 280; 1951 SCR 548: 1951 ALJ (SC) 127: ILR 30 Pat. 947 it was held that in cases of fraud, undue influence and coercion, the parties pleading it must set-forth full particulars and the case can only be decided on the particulars as laid."
It was further held that the weakness of the opposite party's case would not be a substitute for discharging the burden of proof cast on the party and it is well settled that without necessary pleadings any amount of evidence would not be a substitute. We would advert to further case law at the appropriate juncture.
(1). Whether the claims are time barred ?
Proceeding on the basis that an application is maintainable we must first consider whether the application filed by the respondents are time barred. According to the appellants, it is barred by limitation for the reason that the application ought to have been filed within 30 days as provided under Article 128 of the Limitation Act. Article 128 of the Limitation Act reads as under:
Article 128 of the Limitation Act no doubt provides for period of limitation of 30 days. The starting point of time is date of the dispossession. Now as held by the Apex Court it is open to a party who has been dispossessed to move the court under Order 21 Rule in which case, no doubt, the period of limitation prescribed under Article 128 of the Limitation Act would apply. In this case, admittedly there cannot be any dispute that the respondents have not been dispossessed as such. Therefore, we find it difficult to apply Article 128 and hold that the application is barred by limitation. If that be so, the question of invoking Article 128 does not arise. No doubt, it is also not entirely irrelevant to bear in mind the principle that citing of wrong provision as such may not disentitle the party to seek support of the correct provision. It cannot be the region of doubt that the decree holder cannot seek a re-issue of warrant under Order 21 Rule 35 when there is resistance. Instead he is to move the court under Order 21 Rule 97. The respondents have clearly a right to be heard and the right adjudicated. It is not a case where they have been dispossessed and therefore Article 128 would not apply.
(2). Whether there is determination of lease under Sec.111 (g) of the Transfer of Property Act ?
Another contention raised by the learned counsel for the appellants is that the lease is determined by virtue of Sec.111 (g) of the Transfer of Property Act. Sec.111 (g) reads as follows:
111.Determination of lease.__A lease of immovable property determines--
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(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
(3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
According to him, there is a breach of condition to pay rent and the original lease deed contemplated the right of re-entry. It is also complained that condition No.(8) providing for payment of customary renewal fees was violated from 1969. This argument is met by the contesting respondents by pointing out that clause 'g' of Sec.111 cannot apply for the reason that the lessor or his transferee must give notice in writing to the lessee for determining the lease which was not done. We are in agreement with the contention of the contesting respondents that it may not be open to the appellants to contend that there is a determination of lease within the meaning of Sec.111 (g) in view of the fact that there is no case for the appellants that they have given any notice in writing of their intention to determine the lease. Without giving such a notice we are of the view that it is not open to the appellants to contend that there was determination of the lease.
(3). Arguments of appellants based on statutory tenancy
We may also deal with the argument of the learned counsel for the appellants on the strength of concept of statutory tenancy. We would think that statutory tenant is one who is entitled to continue as a tenant despite expiry of the contractual period. The Kerala Buildings (Lease & Rent Control) Act provides for an example of statutory tenant. One of the questions which has arisen in respect of such statutory tenancy is whether there is a need to give notice under Sec.106 of the Transfer of Property Act. The matter is no longer res integra as it has been held by the Apex Court and by other Courts that such a notice is not necessary. (See the decision of the Apex Court in 1978 SC 1518). The Apex Court held as follows.
"Where the lease determines by efflux of time and the tenant continues in possession under the protection of the Rent Restriction Act he acquires a status of irremovability unless there is something to show that he is a tenant holding over, mere payment of rent without necessary animus not being sufficient. Such a tenant for the sake of convenience is described as a statutory tenant. It would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of the Rent Restriction Act, that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit........................Where on the expiry of the period reserved by the lease, the tenant continued in possession and except for the acceptance of rent after the lease was determined by efflux of time, nothing was pointed out to show that the lessor had otherwise assented to the lessee continuing in possession so as to infer the renewal of lease, the lessee is indisputably a statutory tenant and cannot seek any assistant from the provisions contained in S. 116. An action for ejectment against such tenant under S.13 of the E. P. Urban Rent Restriction Act cannot fail for want of notice under S. 106, T. P. Act."
In the decision of the Apex Court in Bhawanji v. Himatlal (AIR 1972 SC 819) , it was inter alia held as follows:
"Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, (Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947) cannot be regarded as evidence of a new agreement of tenancy. If the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it . Where he fails to so establish it cannot be said that there was holding over by him.".
A statutory tenant is a tenant who continues as a tenant and is liable to be evicted only on certain stated grounds. It is in the said context that the court has laid down principles as we have referred to above. It may not be correct to describe a tenant by holding over as a statutory tenant. We repel appellants' contention in this regard.
(4) Whether Exts.A3 to A5 are valid?
We may at this juncture deal with the arguments of the learned counsel for the appellants that lease in favour of Mathew T.Marattukulam, his wife and daughter in the year 1969 itself cannot be accepted. In this context we may notice that in O.S.1/1964 number of transactions (leases) were impugned. The persons concerned therein were made parties The lease of 1897 under which the parties claim in this case was not the subject matter of any challenge. The lease was accepted. Sec. 108 of the Transfer of Property Act deals with the rights and liabilities of the lessors and lessee. Sec.108 (j) reads as follows:
"108.Rights and liabilities of lessor and lessee.__In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:--
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(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
xx xx xx xx"
The appellants have not established before us that there was any contract to the contrary by which the lessees were prohibited from transferring the property. If that is so, the transfers in the year 1969 could not be said to be illegal.
(5): Whether the principle of Sec.116 of the Transfer of Property Act will apply in regard to agricultural lease in view of Sec.117 Act ?
The lease in question is a lease for agricultural purposes. Sec.117 of the Transfer of Proper Act no doubt provides as follows:
"117. Exemption of leases for agricultural purposes.__None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication."
But there we may notice that the principle of Sec.116 would apply even to agricultural leases on the basis of it embodying principles of equity, justice and good conscience. In this connection we may refer to a Bench decision of the Delhi High Court in Amrit lal v. Mamleshwar (AIR 1973 Del. 75). The Court held as follows:
"16. Shri Bindra placed reliance on Section 117 of theTransfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Ct. In Anantmal v. Lala, AIR 1964 Raj 88, it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu, AIR 1955 Mad 206 it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable to the new situation. Therefore, clause 9 must be held to be one of the terms of the tenancy by holding over. The tenancy must be held to be one subject to the covenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in Krishna Shetti v. Gilbert Pinto, ILR 42 Mad 654-= (AIR 1919 Mad 12), Gangamma v. Phommakka, (1910) ILR 33 Mad 253, Mt. Kesarbai v. Rajabhau Sadasheo Rao, AIR 1944 Nag 94 , ) Nanjappa Goundan v. Rangaswami Goundan, AIR 1940 Mad 410, E.W.C. Moore v. Makhan Singh, AIR 1919 Pat 254, Eayo George v. Kacki Muthaliyar, AIR 1953 Trav-Co 299, Bainani Properties Private Ltd. v. M.Gulamali Abdul Hossain and Co., AIR 1967 Cal 390 and Namdeo Lokman v. Narmadabi AIR 1953 SC 228."
In this connection we may also bear-in-mind the decision reported in Devaki Amma v. Ramachandra (AIR 1955 TC 146 (FB) which we have already extracted.
16. Accordingly, we are of the view that if the other contentions are satisfied it may be open to the respondents to claim the benefit of the principle of tenancy by holding over.
(6):Whether the Receiver had assumed possession?
One of the questions which was raised by the appellants is that the court below erred in holding that there is nothing to show that actual possession was taken by the Receiver. According to them, the Receiver had indeed taken possession. We are not impressed by the said argument. Nothing is produced before us to indicate that the Receiver had taken possession. Ext.A1 lease was not impugned in OS.No.1/64 and there is also nothing to indicate before us that the Receiver had actually taken possession of the property in question and, therefore, the property was not custodialegis. We cannot appreciate the contention when the lease of 1897, photo copy of which is produced as Ext.A1 was not challenged in the suit and it is not clear how the Receiver could have taken possession of the property covered by the said lease. There may not be also merit in the contention of the appellants that the assignments covered by A3 to A5 in the year 1969 and the earlier assignments in favour of Anglo American Tea Trading Corporation Limited and by the subsequent assignees are during the pendency of the period of suit instituted in the year 1964 could be hit by lis pendens as none of them were made parties to the suit. As already noted there is nothing to indicate that the Receiver has taken possession of the properties besides as noted by the court below the respondents have also produced A16 possession certificate. Accordingly, we repel the said contention.
(7): Whether relegation of appellants to file fresh suit is correct?
Sri. Badruddin, learned counsel would point out that even going by the orders of the Apex Court the court below has clearly erred in relegating the appellants to file a fresh suit against the claimants. He would submit that even under Order 21 Rule 101 it was the bounden duty of the Court to decide the issues raised by the parties. Per contra, the learned counsel for the contesting respondents would contend that the finding is unexceptional having regard to the provisions of Order 21 Rule 35, 36 , Rule 95 and 101 of the Code of Civil Procedure. It is contended that even assuming that a decree for partition is a decree for recovery of possession if the property is in the possession of a tenant, actual delivery cannot be effected. If the finding of tenancy is sustained then the court below was full justified in further relegating the appellants to institute fresh proceedings as it is beyond the scope of the final decree for partition to obtain relief against the tenant. It is contended that Order XXI Rule 101 only contemplates decision of all questions which arise between the parties and which are relevant to the adjudication of the application.
17. Order XXI Rule 35 provides inter alia that when a decree is for delivery of immovable property possession is to be given and the court may remove any person bound by the decree and refuse to vacate the property. However, Rule 36 provides as follows:
"36. Decree for delivery of immovable property when in occupancy of tenant.__Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property".
18. We are of the view that once the execution court in a proceeding of the nature we had called upon to decide comes to the conclusion that the claimants are indeed lessees it may not be correct or legal for the court to proceed against the tenant on the strength of final decree for partition. Admittedly, the respondents/claimants are not parties to the decree. They are not bound by the decree. If it is found that they are lessees indeed they had an independent right. The law does not recognize the right of re-entry even as against a former tenant continuing in possession. Proceedings must indeed taken against the tenant or former tenant. It is pertinent to note the following decision in this regard. State of U.P. v. Dharmander Prasad Singh (AIR 1989 SC 997). In that case, the Apex Court inter alia held as follows:
"A lessor, with the best of title, has no right to resume possession extrajudicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law......."
19. If that be so, if we affirm the finding that the respondents are lessees then we may not be in a position to fault the execution court for the view it has taken that separate proceedings are necessary against the respondents. No doubt, it will ultimately turn on the question whether the respondents have established their leasehold right.
(8): Whether the decree obtained by the appellants is not a decree for possession ?
One of the contentions of the learned counsel for the contesting respondents is that a decree for partition is not a decree for possession. Order XXI Rule 35 CPC refers to a decree for delivery of immovable property. Order XXI Rule 97 contemplates, inter alia, resistance or obstruction against a decree holder who has obtained a decree for possession of immovable property. Reliance is placed by the learned counsel on the Judgment of the Madras High Court in D. Nataraja Achari v. Balambal Ammal (AIR 1980 Madras 222). There, the Court drew a distinction between a decree for possession passed under Order XX Rule 12 CPC and a decree for partition and separate possession under Order XX Rule 18 CPC. The Court was really concerned with the question whether the grant of mesne profits could be challenged. In this case, as noted in the impugned order, under the final decree the appellants were allowed to get separate possession of their share. Therefore, the reference by the respondents to Order XX Rule 12 CPC and Rule 18 may not bear any significance as far as the crucial question whether the decree is one for recovery of possession. The decree is indeed for recovery of possession. No doubt, the party respondents may not be party to the decree and in that sense they may not be bound by it. But, for the purpose of Order XXI Rule 97 or Rule 99 CPC, there is indeed a decree for recovery of possession. Equally, it could be said that for the purpose of Order XXI Rule 35 CPC, there is a decree for delivery of property. We cannot overlook the effect of such an interpretation on the decree holder in a suit for partition and separate possession, in that, anybody set up by the judgment debtor can compel the decree holder to resort to a separate suit, depriving the decree holder of the benefit of Order XXI Rules 35 and 97 CPC.
20. Learned counsel for the contesting respondents would also contend that Sec.37 of the Kerala Court Fees and Suits Valuation Act providing for partition suits would also show that the decree obtained in the partition suit in this case could not be treated as a decree for recovery of possession. It is no doubt true that Sec.37 provides that fee is to be computed on the market value of the plaintiff's share where the prayer is for partition and separate possession by a plaintiff who has been excluded from possession. It is also true that under Sec.37, when the plea is that the plaintiff is in joint possession and the prayer is the same, fee is at a reduced rate as indicated in Sub-Sec 2. However, we are of the view that we cannot hold that the suit is not one for recovery of possession.
(9): Whether the respondents are entitled to set up a claim on the basis that they are having leasehold right and whether there is lease by holding over, what is the distinction between tenancy by sufferance and holding over and whether tenancy at sufferance is transferable?
Application of the principles to the facts:-- This is a case where undoubtedly the property is a part of 909 acres which originally belonged to Vengunad Kovilakam of Kollengode. It also appears beyond doubt that the property was leased out to one William Espants Watts Esquire for a period of 75 years as per document No.2254/1897. There is also a subsequent lease to the Anglo American Direct Tea Trading Corporation Limited. An extent of five acres of Bangalow site was also assigned to Anglo American Tea Trading Corporation Limited. It would further appear that by document No.20/1945 the Anglo American Tea Trading Corporation assigned their rights over the property in favour of the Amalgamated Coffee Estate Limited. O.S.1/1964 in the mean time came to be filed in the Court of District Judge, Palakkad for partition. It would appear that by document No.2153/1969 the Amalgamated Coffee Estate assigned 410 acres to one Mathew T.Marattukulam, 329 acres in favour of Mrs.Annakutty Mathew by document No.2154/1969 and 175 acres in favour of Philomina Thomas by document No.2155/1969. According to the claimants, while on the strength of document No.953/1978 the aforesaid persons purported to assign their rights in favour of M/s.K.J.Plantations by document No.953/1978. Subsequently, according to the claimants, the partners executed a power of attorney in favour of M/s.Haneefa to sell the properties and he executed eight sale deeds and there is no doubt litigation in regard to the power of attorney with which we may not be concerned. Learned counsel for the appellants would contend that the lease executed in favour of the original lessee in the year 1897 being for a term of 75 years came to an end in 1972 and what is more it in fact expired even earlier in 1971 for the reason that there was non-payment of rent of two consecutive years by the lesssee in 1969 in violation of condition No.4 of Ext.A1 lease entitling the lessors to enter upon the premises and therefore the claimants have no right over the property. According to the claimants, they are lessees. According to the contesting respondents, they are entitled to be treated as lessees. According to the contesting respondents they must be treated as lessees by holding over or at any rate they would point out that they are tenants at sufferance. Whichever way it is looked at it is their case that they cannot be evicted on the strength of decree for partition to which they have not been made parties and separate proceedings have to be launched against them and this is what the lower court has ordered.
21. "Lease" is defined in Sec.105 of the Transfer of Property Act. Sec.105 reads as follows:
"105.Lease defined.__A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
Sec.108 of the Transfer of Property deals with rights and liabilities of the lessor and lessee. Sec.111 provides for determination of the lease. Sec.116 deals with effect of holding over. Sec.116 reads as follows: 116. Effect of holding over.__If a lessee or under- lessee 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 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.
22. One of the issues which is raised by the learned counsel for the appellants is that the original lease namely the lease of the year 1897 expired in the year in 1972 by efflux of time. Learned counsel for the appellants then poses a question as to what was the right which remained with the transferees ? He contends that there is no specific case for the contesting respondents that they are tenants by holding over. If that be so, he would complain that there was no basis for the lower court to come to the conclusion that the claimants have leasehold right. He would emphasize that there is no case of payment of any rent. There is also no indication that the lessor in any other way assented to the claimants continuing in possession. He would then contend that tenant at sufferance does not have any estate. He may have only bare possession. Mere possession cannot confer a right on a person who resists a decree holder who has obtained a decree for possession under Order 21 Rule 97 or Rule 99. A tenant in sufferance does not have any heritable right. He does not have a right which can be the subject matter of a valid transfer. If that is so, he poses a question when A1 lease expired in the year 1972 what was the right which the transferees obtained in the year 1969 which they could have transferred to M/s.K.J.Plantations ? What is the right he poses again which M/s.K.J.Plantations could have transferred to anybody else. He would contend that there was no right which is transferable and therefore the transactions are all void. They are also affected by the vice of fraud, it is submitted. The party intending to transfer a right which he knows he does not have, can only be attributed with fraudulent intention and the basis of that claimants' case is vitiated by fraud, he contends.
23. We have already repelled the contention of the appellants that the lease must be treated as determined in the year 1971 under Sec.111 (g) of the Transfer of Property Act. There can be no quarrel with the contention of the appellants that the right which was obtained by assignees under Ext.A3 to A5 indeed expired in the year 1972 for the reason that Ext.A1 lease of the year 1897 was for 75 years and the right which could be assigned under Exts.A3 to A5 could not have over shot the period of 75 years calculated from 1897. Therefore, we can safely conclude that the lease was determined by efflux of time in the year 1972. According to the appellants, the assignees under Exts.A3 to A5 would become tenants at sufferance. Going by Ext.A6 executed in the year 1978 the assignees under Exts.A3 to A5 have purported to assign their rights (the exact contents we would notice later) in favour of M/s.K.J.Planatations, a firm. There is a power of attorney executed by the partners on the strength of which Exts.A7 to A14 have been executed. This is the foundation of the claim of the respondents. They would contend that they are lessees.
24. The time is now ripe for us to delve into the concepts of lease under the Transfer of Property Act. A lease under Section 105 of the Transfer of Property Act is a transfer of right to enjoy immovable property. It is a transfer of interest in immovable property. Unlike a licence the lessee has an interest in immovable property. Subject to a contract to the contrary the rights and liabilities of the lessor and lessee are seen dealt with in Sec.108 of the Transfer of Property Act.
25. The heading of Section 116 of the Transfer of Property Act provides for the effect of holding over. It is apposite in this context to remember that upon expiry of a lease there is a duty on the part of the lessee to surrender possession back to the lessor. In fact, this principle has been incorporated in Sec.108 (q). Sec.108 (q) provides that of course in the absence of a contract to the contrary upon determination of lease the lessee is bound to put the lessor into possession of the property. However, on the determination of a lease the lessee may hold over. In other words, he may continue to retain possession of the leasehold property. When he holds over there can be two legal consequences. He will continue as a tenant at sufferance or he may become a tenant by holding over. If, after determination of the lease the tenant pays rent, intending it to be for the creation of a fresh tenancy and the rent is accepted by the landlord it may give rise to a fresh tenancy and that is what is a tenancy by holding over. Apart from payment of rent creating a fresh tenancy by holding over, a fresh tenancy by holding over may be created by the assent given by the landlord. Assent of the landlord may be express or implied. Creation of tenancy by holding over is a bilateral act as it creates a fresh tenancy. The creation of tenancy is normally and ordinarily a bilateral act. The tenancy by holding over is also a bilateral act as is indeed the original tenancy which also is a bilateral act.
26. Though number of decisions have been cited before us, we need refer to few decisions of the Apex Court and High Court which we consider apposite. In Bhawanji v. Himatlal (AIR 1972 SC 819) the Apex Court inter alia held as follows:
"9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Baj Jerbai Hirjibhoy Warden, 1949 FC 262 = (AIR 1949 FC 124), the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it."
27. We have already noted the decision of the Full Bench reported in Devaki Amma v. Ramachandra Kammathi (1955 KHC 37) wherein it has been held that all stipulations under an expired lease will be deemed to be imported into an implied lease by holding over unless they are altogether unconnected with the transaction of lease. A tenant by holding over would have an alienable and heritable right. Now time is ripe for us to consider whether the respondents have established a case of lease by holding over. There is no pleading as such of a lease by holding over, runs the argument of the learned counsel for the appellants. We have already noticed the nature of the pleadings. The respondents have contended that after referring to the transactions from 1897 that they are having leasehold right, and that they cannot be evicted. The prayers sought in the claim petition is inter alia for establishing their leasehold right. In this context we must examine what is the law relating to pleading required in the case of lease by holding over. We may notice the judgment of the learned Single Judge reported in 1998 (2) KLT SN Harimurali v. U C O Bank. We notice that Justice A. S. Venkatachala Moorthy has elaborately surveyed the case law on the point and inter alia held as follows:
"11. The basic question is as on whom the burden of proof lies namely who should prove the overtacts by which the relationship of landlord and tenant revived and tenancy by holding over has come into existence. The answer in this question can be found in the ruling reported in Zaffar Hussain v. Mahabir Prasad and others (AIR 1957 Patna 206 (209). Paragraph 25 of the said judgment reads as follows:-
"In my opinion, therefore, the mere claim for rent, for the period after the expiry of the period of tenancy, after the notice to quit, will not amount to conclusive evidence of the intention of the landlord petitioner to renew, or revive, or continue the old tenancy, or create a new tenancy by waiver of the notice to quit, or by holding over, as the case may be. The onus is on the tenant to prove that the landlord agreed to the holding over of the tenancy, or to a new tenancy coming into existence after the expiry of the previous tenancy. In the absence of such an evidence, the mere claim of rent after the notice to quit for the period after the expiry of the term of the lease, though the tenant may be continuing in possession, would not necessarily establish the requisite consensus ad idem between the parties to renew the lease, or treat the lease as subsisting, or create a new tenancy coming into existence; and would not thus operate, either as waiver of the notice to quit under Sec.113, or a renewal f the tenancy, or holding over, under S.116 of the Transfer of Property Act, 1882.
Hence the burden is only on the lessee to prove.
12. In the decision reported in Karnani Industrial Bank Ltd. v. The Province of Bengal & Others (AIR 1951 SC 285) the Apex Court held that he payment of rent and its acceptance should be made at such a time and in such a manner as to the landlord assenting to he lessee continuing in possession or in other words the circumstances in each case must be borne in mind by the court before deciding whether there was a clear and definite consent on the part of the landlord.
13. The legal position that the mere claim of rent after the expiry of the term of the lease, though the tenant may be continuing in possession, would not necessarily establish the requisite consensus ad idem between the parties to renew the lease and will not amount to conclusive evidence of the intention of the landlord to renew is laid down in the ruling already referred supra namely AIR 1957 Patna 206.
14. In the decision reported in Bhagwan Das Sukul v. Dhananjoy Paul and another (AIR 1963 Assam 137) the Division Bench of that court ruled thus:-
"Before Section 116, can be attracted it is first necessary that the lessee after the determination of the lease remains in possession and secondly that the lessor or his legal representative either accepts rent or otherwise assents to his continuing in possession. The acceptance of rents is thus also regarded as an assent to the continuance of the tenant in possession. The tenant when he remains in possession after the determination of the lease, makes an offer by giving the rent to remain in possession on same terms or payment of rent and when the rent is accepted by the lessor, he assents to his continuing in possession and that brings about the completed fresh contract of tenancy. In order that the acceptance of rent should therefore, amount to an assent of the lessor to retain the lessee in possession of the property, it has to be established that the offer of rent was made on the express ground that he lessee intended to continue his lease and when the acceptance was made it was done with the full knowledge of the nature of the offer. This is question of fact which will have to be determined from the circumstances of each case and as the point was not raised in the present case, the courts below did not go into that question and have given no finding that the payment of money was as rent and there was an assent of the lessor to the holding over."
15. The next important ruling of the Apex Court is one reported in Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others (AIR 1972 SC 819). It is necessary to extract the relevant paragraph of the judgment which reads as follows:--
"Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purpose of Sec.116. We are not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the determination of the tenancy. Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262- (AIR 1949 FC 124) is correct and does not require re-consideration."
16. A Division Bench of the High Court of Himachal Pradesh in Tralok Chand and another v. Arjun Singh and others (AIR 1978 Himachal Pradesh 2) has taken the view that the implied agreement must be pleaded and the attention of the parties should be focussed on that plea so that both the parties have ample opportunity to prove respective stands with regard to this plea. The relevant portion of the judgment reads as follows:
"On perusal of the pleadings of the parties we find that this contention is not available to the defendants-respondents. If again a reference is made to the original written statement as well as the amended written statement filed by the defendants, it will become evident that nowhere therein the defendants have raised the contention relating to holding over. The principle of holding over as found enacted in S.116 of the T.P Act rests on an implied agreement between the landlord and the tenant concerned regarding the continuation of the tenancy rights even after the original tenancy has come to an end. Under the circumstances, this implied agreement must be pleaded and the attention of the parties should be focussed on that plea so that both the parties have ample opportunity to prove their respective stands with regard to this plea. Now if the reference is made to both the written statements filed by the defendants, it will be evident that they have nowhere said that after the expiry of the fixed term of tenancy as evidenced by the last rent note, there was an implied agreement between the parties to continue the tenancy rights in favour of Kartar Singh. The only and the simple plea which is raised by the defendants in their written statements is that from the very beginning the tenancy rights were acquired by the joint Hindu family of Kartar Singh, and, therefore, the other male members of the family of Kartar Singh were entitled to enjoy these tenancy rights even after the death of Kartar Singh. Therefore, if the defendants fail in proving this specific plea, which is raised by them in their written statements, they cannot fall back upon a fresh plea, involving certain disputed questions of facts.
17. In a decision reported in Md. Ahmed Amolia and others v. Nirmal Chandra Roy and others (AIR 1978 Calcutta 312) the Division Bench of that court took the view that courts have to look into the pleadings by the lessee and that mere claim of rent does not amount to conclusive proof of the intention of the lessor to renew or revive or continue the lease or create a new lease or tenancy by holding over. Paragraphs 25 and 33 of this judgment may be referred in this regard.
"25. It is for the appellants to prove that (1) the lessee remained in possession after determination of the lease and (2) the lessor or his legal representatives accepted rent from them or otherwise assented to their continuing in possession. No oral evidence was given by the appellants or any of the heirs of the lessee on the points. Further the case of tenancy by holding over as provided under Section 116 of the Transfer of Property Act has not been made in the written statement of defendant No.9 or of the Receiver. Only the defendants Nos.2, 3 and 4 who are the appellants have made this case. Admittedly, no rent was accepted by the plaintiffs from the month of March, 1961. So the question is whether the legal representatives of the lessor otherwise assented to the defendants' continuing in possession of the property.
"33. In Deo Nandan Pershad v. Meghu Mahton, (1907) ILR 34 Cal. 57 at p.62 this court held:
" A mere demand for rent is not sufficient to create the relationship of landlord and tenant which is a matter of contract assented to by both parties."
Thus, mere claim of rent does not amount to conclusive evidence of the intention of the lessor to renew or revive or continue the lease or create a new lease or tenancy by holding over."
18. In Khudiram Mukherjee v. Samsul Bari and others (AIR 1983 Calcutta 303) a Division Bench of the Calcutta High Court in paragraph 8 of the judgment observed as follows:- "In our view Section 116 of the T.P.Act provides that it is only acceptance of rent by way of assenting to the lessee's continuing in possession as a lessee which constitutes holding over. Mere acceptance of rent by itself would not be sufficient unless such acceptance indicates an animus on the part of the lessor to continue the lease or renew the same.
While holding the same, the Division Bench also referred to the ruling of the Supreme Court in the case of Karnani Industrial Bank v. The Province of Bengal (AIR 1951 SC 285).
19. In a decision reported in M/s.Sudarshan Trading Co.Ltd. , Bangalore v. Mrs. L.D'Souza (AIR 1984 Karnataka 214) the Division Bench (which consisted of Mr.Justice M.N.Venkatachaliah as he then was and Mr.Justice D.R.Vithal Rao) ruled that pleadings of the parties as a whole must be looked into and there must be a consensual bilateral act necessary to bring a new month to month tenancy by holding over. Paragraphs 12 and 13 of this judgment reads thus:--
"12. .......It is as much necessary for the tenant to accept a tenancy by holding over as it is for the landlord to assent to it either expressly or by acceptance of rent, as rent, or otherwise. The negative implications of the assertion by the appellant of a larger right, in our opinion, excludes a consensual bilateral act necessary to bring a new month to month tenancy by holding over into being. The specific case of the appellant and the rights asserted by it as regards the nature and character of its possession subsequent to the expiry of Ext.P1 are,indeed, inconsistent with and exclude the possibility of the coming in to being of a contractual tenancy by holding over.
13) But here, the assertion of the respondent that there was a month to month tenancy is not an admission of a fact. It is an expression of what, according to respondent, was the nature and character of a legal relationship. That is a mixed question of a fact and law. No tenancy by holding over can come into existence by a unilateral assertion of either the erstwhile landlord or tenant. Appellant's stand has, throughout, been one which is inconsistent with and would clearly exclude a case of tenancy by holding over. In such a case the statement by the respondent would not by itself bring about that legal relationship and the averments in the plaint are not decisive.
..................If as in the present case, there is no fresh contract of tenancy between the parties - and such a contract cannot come into existence without the consent of both- the position is that the position clearly falls under Section 111 (a) T.P. Act, and no notice under Section 106 becomes necessary as there is no month to month tenancy by holding over. This would be so notwithstanding the unilateral assertions of the respondent in the plaint that there was a month to month tenancy. In all such cases the respective cases of both parties and their pleadings as a whole had to be examined and a conclusion arrived at as to the existence of a holding over tenancy on the basis of the material on record."
In paragraph 21 the learned Single Judge found as follows:
"To summarise the legal position it can be stated as under:--(1) The burden is on the lessee to prove that from the overtacts on the part of the parties the relationship of landlord and tenant revived;
(2) It must be shown that the offer of rent was made on the ground that the lessee intended to continue the lease (as a tenancy by holding over) and the acceptance by the lessor was made with the full knowledge of the nature of the offer;
(3) Mere acceptance of rent by the lessor though raise a presumption that the lessor consented for the revival of the tenancy is not the conclusive proof;
(4) The consent contemplated in the Section must be by both the parties;
(5) The consent must be in the nature of definite consent and it must be a consensus bilateral one and not merely a unilateral intendment by one of the parties;
(6) The time and manner of acceptance in the circumstances of the case has to be considered and the acceptance must be attributable only to the landlord assenting for a revival or a new tenancy; and
(7) Since the lessee claims an implied agreement by the conduct of parties, it must be specifically pleaded by the lessee in his plaint or written statement."
In N.H. Thadani v. Chief Settlement Commissioner (AIR 1958 Punjab 314), Justice A.N. Bhandari CJ. with whom the other learned Judge agreed, held, inter alia, as follows:
"If a tenant under a lease for a definite term retains possession of the premises after the expiration of the term without a new agreement, it is open to the landlord either to treat him as a tenant or to turn him out as a trespasser. If the landlord manifests his intention clearly effect must be given to it, for it is the intention of the landlord alone which determines the subsequent nature of the relationship between the parties. If the landlord agrees to the continued occupancy of the tenant, the tenancy is one at will. If, however, the landlord omits to indicate his intention and neglects to disturb the tenant's possession a tenancy at sufferance arises. It comes into existence only out of the laches of the owner and is regarded as the most shadowy estate recognised at common law. The difference between a tenancy at will and a tenancy by sufferance is that in the one case the tenant holds by right and has an estate or term in the land, precarious though it may be, and the relationship of the lessor and the lessee subsists between the parties; in the other, the tenant holds wrongfully and against the will and permission of the landlord, and has no estate at all in the occupied premises. A tenant at sufferance comes in by right and holds over without right. He stands very nearly on the same footing as a trespasser. He is a wrong doer; he has no term and no estate or title; he has the mere occupancy or a naked possession without right and wrongfully. He stands in no privity with the owner who may re-enter when he pleases and so terminate the tenancy without notice. He cannot grant lease in respect of the property of which he is in possession for he has no estate that can be granted to a third person. He is not liable for rent and is not entitled to notice to quit and his continued possession is due wholly to the forbearance of the landlord in not evicting him. Two features distinguish the holding by a tenant at sufferance from the possession of a trespasser. The first is that the landlord may by his acquiescence at any time base on the tenancy at sufferance the relation of landlord and tenant which he cannot establish at law against a trespasser. Secondly, the tenant cannot be subjected to an action for trespass before entry or demand for possession. A tenant at sufferance cannot, by any stretch of reasoning, be regarded as being in lawful possession of the immovable property occupied by him. A tenant who continues to remain in possession of the leased premises after the expiry of the lease does not continue to be a tenant unless the landlord consents to his holding over. Such consent may be express or implied but it must be established before the relationship of landlord and tenant can continue. It is true that the consent of the landlord is often evidenced by payment and unconditional acceptance of rent. The payment of rent, however, raises only a presumption in favour of the subsistence of the relationship, but this presumption may be rebutted by the other facts and circumstances of the case and in particular by the conduct of the landlord."
28. On the other hand, learned counsel for the respondent relied on the following Judgment of a learned Single Judge of the Calcutta High Court in Ram Barai Singh v. Tirtha Pada Misra (AIR 1957 Calcutta 173):
"Mere continuance of possession after the expiry or determination of his lease would not entitle the tenant to claim a tenancy by holding over. Mere continuance of possession without more would not be sufficient for the purpose. There must also be the landlord's assent to such possession by acceptance of rent or otherwise. Acceptance of rent, unless explained on any other hypothesis, would be evidence of such assent, but it is not the only relevant evidence on the point and such evidence may be furnished otherwise also, that is, by other circumstances. What has to be proved is assent of the landlord. In the absence of an agreement to the contrary, the tenant's continuance of possession after the termination of the lease, coupled with the landlord's assent, would constitute a tenancy by holding over and the lease would be renewed from year to year or from month to month, according to the purpose of the tenancy under S.106 of the Transfer of Property Act. The landlord's assent again may be express or implied and, even when there is not direct evidence, it may be inferred from circumstances. The length of the tenant's possession may have this importance that, then it is pretty long, slight evidence, circumstantial or otherwise, may be sufficient to tilt the balance in favour of the landlord's assent. Mere absence of dissent would not be enough to constitute assent, but if it continues for a sufficiently long period, it may, with the aid of other circumstances, and in the absence of any contrary indication, reasonably give rise to an interference of assent. The cumulative effect would be to give rise to an interference of assent as a presumption of fact which is certainly rebuttable, but which will prevail unless rebutted. The length of the period may only reduce the requirement of other circumstances to a minimum, so that when it is sufficiently long, only a slight aid will be necessary from the other circumstances and, to that extent, it may facilitate the drawing of the presumption."
29. According to the learned counsel for the contesting respondents, therefore, this is a case where there is a long inaction on the part of the lessor/decree holders in taking action against them and this is sufficient to indicate assent as held by the learned Single Judge. We may notice, however, that therein the case set up by the plaintiff in a suit for declaration of title and recovery of possession was that his predecessor was a tenant for a fixed term and upon its expiry, his predecessor continued to hold on with the landlord's assent and upon his death, the tenancy devolved on his heirs and thereafter it was, inter alia, sold to the plaintiff.
30. We may further notice that the learned Single Judge has also held as follows:
"The point of law, arising in this appeal, is undoubtedly one of some difficulty and if 31 Cal WN 282: (AIR 1927 Cal 279) (A), had purported to lay down any broad proposition of law to the effect that mere continuance of possession for a long time without more would, as a matter of law, be sufficient to prove the necessary assent of the landlord under S.116 of the Transfer of property Act, it would probably have been unsupportable and I would have been inclined to put it aside in the case of numerous authorities to the contrary, not excluding the Federal Court decision referred to above, but, in my view, all that the case in 31 Cal WN 282: (AIR 1927 Cal 279) (A), lays down is that the assent of the landlord, as required by S.116 of the Transfer of Property Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances which would either directly establish such assent or lead to a reasonable inference of it...................It is true that the length of the tenant's continuance in possession after the expiry of his lease was a material factor in that case for the ultimate conclusion of assent on the landlord's part, but I do not think that was the only factor and, even if it was, that decision, right or wrong, stands and it need not affect the present case one way or the other, where, as I shall presently show, the tenant's possession coupled with the other circumstances, may reasonably be held to justify an interference of the requisite assent on the landlords' part. (13) There is, admittedly, no agreement to the contrary, as mentioned in S.116 of the Transfer of Property Act. It has been sufficiently established also (i) that the original tenant Mahadeb continued in possession till his death in 1941-42, that is, for about 10 years after the determination of his fixed term lease in 1931-32, and, thereafter, his heirs and then their assignee, the present plaintiff, till about 1945 and that they continued to pay Municipal taxes and raised new structures to the full knowledge of the landlords; (ii) that the landlords never protested against their occupation or the entry or recording of Mahadev's name in the Municipal Register as occupier until possibly shortly before the present suit, although, for years in the meantime, they had full knowledge of the above entry in a context, which, as I shall presently explain in the course of this judgment was highly significant from the tenant's point of view, and the present appellant's story of Mahadev's leaving the suit property on the expiry of his fixed term lease and his further story of the landlords' taking over of Khas possession thereafter and payment of Municipal taxes by the landlords since about 1932, and settlement with him (appellant Defendant No.2) in 1340 B.S. or at any time whatsoever, have been found to be false by bother the courts below. It also appears that the landlords who are undoubtedly supporting the defendant appellant have withheld their collection papers (including the real counter-foil books) which might have thrown some light on the state of things after the determination of Mahadev's original lease in 1931-32, and this they have done in spite of sufficient opportunity, particularly after the remand from this Court on the earlier occasion. It has also to be noticed that these counter-foils were called for from the landlords by one of the parties in the present suit. In these circumstances, I am not prepared to disturb the concurrent finding of the two courts below that the landlord's requisite assent to Mahadev's continuing in possession for the purpose of S.116 of the Transfer of Property Act may be reasonably inferred in this case. The importance of the landlord's papers cannot be overlooked or minimised in this particular case, when it is remembered that the Original tenant is dead and his heirs are away and not easy available and the plaintiff as a subsequent purchaser from those heirs more than 12 years after the expiry of the original lease, and the withholding of these papers is a very material circumstances in this case and may justify the drawing of an adverse inference or presumption against the defendant appellant on the question of the requisite assent of the landlords, particularly in the fact of the fact that the landlords (one of whom has deposed in favour of the defendant appellant) have chosen to support the defence case and defeat plaintiff's suit by producing papers which have been found unreliable by both the Courts below. I do not also think that, in the above circumstances, the absence of direct evidence of any payment and acceptance of rent or express assent is of much consequence or militates against the drawing of a reasonable inference of such assent as has been drawn or made in this case, and I am even inclined to hold, in the facts and circumstance of the present case, that there was payment and acceptance of rent after the expiry of Mahadev's original lease upto about the time of his (Mahadeb's) death and that the landlord's papers, the real papers if produced would have sufficiently demonstrated the same.
The learned Judge further held as follows:
"(14) It is pertinent to point out here one other relevant particular which is rather of a telling character on the question of the landlord's assent. I have already referred to the fact that the landlords allowed Mahadeb's name to continue as the recorded occupier in the Municipal Register till long after the expiry of his lease. This by itself may not ordinarily have been very material as Mahadev was actually in occupation, but, when it is considered in the background of the landlord's application of 1844 B. S., that is, long after the expiry of Mahadev's original lease, for rectification of the Municipal Register, which, as the relevant Ext. 3-C shows, was for correction of the mistake in the owner's name in the Municipal Register and which as the landlord's evidence here shows, was not on the footing that Mahadev would properly be the recorded occupier only because of his occupation for that, no sort of title was necessary, and, indeed, the D. W. landlord's evidence shows that they (the landlords) would have certainly taken steps for deleting his (Mahadev's) name from the occupier's column, if this tenancy had terminated, without the slightest, I feel amplified about the correctness of the concurrent finding of the two courts below on the question of the landlord's assent to Mahadev's holding over after the expiry of the term of his original lease."
Therefore the said decision turned on the facts where, apart from the long possession of ten years, there were other circumstances. Further, the learned Single Judge was dealing with the matter in a Second Appeal where there were concurrent findings by the courts below that there was a lease by holding over.
31. Learned counsel for the contesting respondents would also rely on the Judgment of the Apex Court in Madan Gopal Kanodia v. Mamraj Maniram and Others (AIR 1976 SC 461) wherein the Court, inter alia, held as follows:
"26. In the written statement filed by the plaintiff under O.6. R.4 Code of Civil Procedure, the particulars and essential details of the 21 bales of cloth were clearly mentioned in Para.1(b). Further more, counsel for the plaintiff gave a statement before the Trial Court on September 5, 1952, where also all the essential details regarding the 200 bales of cloth were given. In the statement the counsel for the plaintiff admitted that the plaintiff had received the sale proceeds of 179 bales of cloth and that 21 bales of cloth remained unaccounted for. In the evidence also, the plaintiff has sought to move the very case set up in the plaint as also in the written statement filed later under orders of the Court. We are unable to see any substantial variation between the pleadings of the plaintiff and the evidence led by him at the trial. It is well settled that pleadings are loosely drafted in the Courts and the Courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case."
Reliance was also placed on the decision of the Apex Court in K.C. Kapoor v. Smt. Radhika Devi (dead) by Lrs. And Others (AIR 1981 SC 2128). Therein, the Apex Court, inter alia, held as follows:
"Before parting with the question of estoppel, we may briefly notice another contention put forward on behalf of the plaintiffs whose learned counsel urged that no plea of estoppel could be countenanced for the reason that no proper foundation was laid for it in the pleadings. A combined reading of paragraphs 14 and 16 of the written statement, however, furnishes a complete answer to the contention. The representation said to have been made by plaintiff No.1 is set out in paragraph 14 while the plea that she was estopped from contesting the same is taken in paragraph 16. It is true that the plea last mentioned is linked with the "the active consent and approval of plaintiff No.1" and not in so many words with the said representation. It can also not be disputed that defendant No.1 did not specifically state that he purchased the disputed property in the belief that the representation was true and that he would not have entered into the transaction but for that belief. This undoubtedly the written statement is inartistically draf6ted and leaves much to be desired, but then pleadings are not to be construed in such a hypertechnical manner and what is to be seen is whether the allegations made in paras 14 and 16 gave sufficient notice to the plaintiffs of what case they had to meet. In this connection we may refer to the significant fact that no objection to the lack of particulars was taken at the state when issues were framed or later when statements of parties counsel were recorded on a subsequent occasion or during the course of arguments addressed to the Trial Court, the District Judge and the High Court, even though the issue of estoppel was hotly contested before all three of them. All these circumstances unmistakably indicate that the case put forward by defendant No.1 was throughout understood by the plaintiffs to be that it was the belief induced in him by the representation of plaintiff No.3 which made him accept the title of defendant No.1 as being exclusive. In this view of the matter it is too late in the day for the plaintiffs to raise the contention under consideration and we have no hesitation in rejecting it as untenable."
32. It is contended that no contention is taken about the lack of pleading in the Execution Court and no plea is as such taken even in the Appeal Memorandum. But, this is a case where there is no pleading about the alleged lease by holding over. We would think that the decisions cited by the contesting respondents as to pleadings, turned on the facts presented therein. The matter is taken up before us, the first appellate court in this case. In Ext.A6 which is a copy of the sale deed executed in favour of M/s. K.J. Plantations, there is reference to the earlier documents including Exts.A1 to A3 and thereafter it is, inter alia, stated as follows:
"Whereas the vendors are absolutely entitled to and are in possession of the pieces and/or parcels of leasehold (regd. holding) described and detailed in the schedules attached hereto as A, B and C known respectively in the names of Anaimad Estate owned by Mathew T. Marattukulam, Mount Ruby Estate owned by Mrs. Annakutty Mathew and Saffire Estate owned by Mrs. Philomina Thomas..."
Reference is made to Exts.A3 to A5. It is further stated that the vendors have saleable title, interest, possession and power of alienation over their respective properties and it is further recited as follows:
"Now this deed of sale witnesses that in pursuance of the aforesaid agreement and in consideration of the sum of Rs.29,65,000/= (Rupees Twenty Nine Lakhs, Sixty Five Thousand only) out of which the vendors have already accepted Rs.2,00,000/= (Rupees Two Lakh only) as advance at the time of agreement of sale and the balance of Rs.27,65,000/= (Rupees Twenty Seven Lakhs, Sixty Five Thousand only) to be paid in the manner detailed below, the Vendors doth hereby convey and assign unto the purchasers all those pieces and/or parcels of land more particularly scheduled hereunder situated in the Sub District of Kollengode in the Registration District of Palghat with all standing trees, crops, portion of boundary wall, hedges, ditches, fences, ways, waters, watercourses, liberties, rights, lights, privileges, easements, advantages and appurtenances whatsoever to the said pieces and/or parcles of land or with the same now or heretofore occupied or enjoyed or known as part or parcel thereof or as appurtenant thereto and all the estates, right, title, interest, claim and demand whatever of the Vendors in and upon the same, to have and to hold the said pieces and/or parcels of land and all singular other premises hereinbefore expressed to be hereby convenyed and assigned unto the purchasers."
Ext.A7 purports to be the photocopy of a sale deed executed by the power of attorney holder appointed by M/s. K.J. Plantations. Reference is made to the earlier documents which we have already referred to, including Exts.A1 to A6. Reference is also made to Order dated 18.8.1976 of the Taluk Land Board, Chittur and it is stated that it is a plantation which has been declared and exempted as such. Ext.A14 appears to be on similar lines.
33. Now, let us examine the pleadings in the claim petition. In EA.Nos.41/09 and 33/09, the claimants would refer to the various transactions and thereafter claim that they have leasehold interest, and that the appellants are not entitled to get actual delivery of that property by dispossessing them and the right is only to get symbolic and actual delivery. The claimant in EA.No.33/09 would claim leasehold interest over 274.20 acres of property included in the schedule to the Execution Petition. The claimant in EA.No.41/09 who is in fact M/s. K. J. Plantations, claims leasehold right over item Nos. 1 and 2 in the E.P. scheduled properties. It is also stated that cause of action arose on 28.6.2009 when the Amin visited/alleged to have visited the properties to effect delivery and when delivery was resisted. In EA.No.38/09, the claimants would refer to the lease of 1897 and also Ext.A2. It is further stated that with the passage of time, the properties changed hands as per registered documents and finally, all persons in possession of different parcels of land conveyed their rights over their respective properties to M/s. K. J. Plantations. There is further reference to the power of attorney which is referred to in all the Claims and the eight sale deeds executed on the said basis. It is claimed that four were executed in favour of the claimants. They also claim leasehold right and interest over 274.20 acres of the property included in the schedule to the Execution Petition, and that the appellants are not entitled to get actual delivery and their rights, if any, is to get symbolic delivery. There is absolutely no pleading about any payment of rent within the meaning of Section 116 of the Transfer of Property Act or about the creation of lease by holding over by assent otherwise. We may refer to paragraph (2) of EA.No.41/09 which reads as follows:
"2. In O.S.1/64 besides the plaintiff and defendants 1 to 10 who are the sharers, lessees of the Kovilagam were made parties as defendants 11 to 14; these leases were challenged on the ground that they are illegal and improper leases of the vast forest land. None other leases including that of the claimants were attacked, as they were good leases binding on the kovilagam and the sharers. In the final decree proceeding the commissioners appointed divided such plantation and allotted to the various sharers. Except defendants 11 to 14, other lessees were not made parties to the suit at any stage; but while passing the final decree, it seems that the sharers were given the right to take possession, which is evidently bad in law, particularly when such lessees were not heard or made parties and those leases not attacked as improvident leases. It is learnt that there was resistance by the others and the Amin has reported about such obstruction in the delivery proceedings."
34. Apart from referring to the earlier transactions, all that is mentioned, as we have noticed is that they have leasehold right. Upon the expiry of a lease, if the lessee holds over, a new tenancy by holding over may arise only if there is payment of rent with the necessary animus and accepted by the lessor or assent in any other form. They are essentially questions of facts. Necessarily, there must be pleading. In this case, there is absolutely no case before us of any payment of rent by the claim petitioners. There is no evidence before us also to suggest the payment of any rent by the transferees under Exts.A3 to A5 or by the claimants. Learned counsel for the contesting respondents would point out that in point of fact, the lessor was in the habit of leasing out the properties and they were not actually cultivating the properties themselves and this fact may be borne in mind in appreciating the contention that there was a lease by holding over. No doubt, the case, inter alia, of the claimants in EA. No.33/09 and EA.No.41/09 is that the scheduled properties are plantations with coffee, cardamom, orange and pepper cultivation. The case of the claimants in EA. No.38/09 is that the properties scheduled are plantations and cultivation of crops, like cardamom, etc. is done in the property. They would also point out that the lessors were aware of the lease and it is stated in the Judgment in the partition suit itself. Despite knowledge, the lessors acquiesced and did not take any action for a long time indicating assent.
35. There is a case for the appellants that they came as legal representatives of the first defendant and it is only upon the passing of the final decree that they were allotted their share of property and it is only then the rights crystallized and they are fully accordingly justified in not taking steps. This is apparently in answer to the contention that there is long delay or inaction on the part of the lessor which necessarily impliedly spells out assent.
36. It is true that after referring to the transactions, there is reference to leasehold right. According to the contesting respondents, that is sufficient to show a lease by holding over. Also they point out that this is a case where there is no case of proceeding against them for a fairly long period of time. We are of the view that as held by the learned Single Judge which was reported in Harimurali v. UCO Bank (1998 (2) KLT SN 42 Case No.52) and the case law referred by him, the burden is on the tenant to set up a case, plead facts to bring him within the fold of a tenant by in holding over. There is absolutely no such pleading as to even who became entitled to a lease by holding over. There is no case at all that the assignees under Exts.A3 to A5 became tenants by holding over. Substantially, what is stated in the claims in regard to Ext.A6 is that all of them assigned their rights in favour of M/s. K. J. Plantations. If that be so, we are of the view that it is not open to the contesting respondents to contend that they are tenants by holding over. We will also proceed to consider the case of lease by holding over on merits. We may also notice that in fact the Execution Court has also not expressly found that the claimants are lessees by holding over. We will also proceed on the basis that the property changed hands to several persons by 1972 and there is no legal hurdle in assigning the leasehold right. Thereafter, essentially what is stated is only that after the expiry of the period of the lease, there was no demand from the side of the lessor for getting possession of the leased property and there is nothing to show that the lessees surrendered possession after expiry of the lease. It is also found that
"from the documents produced in this case it can be seen that they got assignment of the leasehold right.......".
It may be true that there is nothing to indicate that there was any demand for possession by the lessor or that the lessees had surrendered possession after the expiry of the lease. But, we are unable to subscribe to the view that the documents would show that the claimants got assignment of the leasehold right. The court did not proceed to consider that when the lease expired in the year 1972, what was the leasehold right which still subsisted which could have been assigned and whether there was a lease by holding over as such. There is no express finding that there was a lease by holding over.
37. It is also pertinent to consider as to who can claim a tenancy by holding over. Undoubtedly, only a person who was inducted as a tenant and whose lease has been determined and who continues in possession with the assent of the lessor, can claim the benefit of Section 116 of the Transfer of Property Act or the principle embodied therein. Proceeding on the basis that Exts.A3 to A5 shows the transfer of the leasehold right in favour of the assignees to Exts.A3 to A5, they became lessees. No doubt, there is a controversy raised by Shri H. Badruddin that the transferees may not become the lessees of the original lessor. But, there would be privity of estate between the assignees and the lessor. At any rate, even proceeding on the said basis, the lease of 1897 under Ext.A1 came to an end in the year 1972. Therefore, the only persons who can claim the benefit of lease by holding over would be the lessees under Exts.A3 to A5. They were in possession allegedly till 1978 when Ext.A6 was executed in favour of M/s. K.J. Plantations. A lessee by holding over being heritable and alienable would take in also any assignee from such a tenant. But, that is only if the former tenant became entitled to a new tenancy by virtue of holding over with the assent of the lessor. The creation of a tenancy by holding over in the facts of this case, if at all, could be claimed only by the assignees to Exts.A3 to A5. They were in possession for a period of six years after 1972. It may also be true that no action was taken during the said six years by the lessors. But, we must remind ourselves that the law as to creation of tenancy by holding over which is a tenancy by an implied contract, does not allow such a tenancy to arise by implication by the mere silence of the lessor (See the observations of this Court supra in Cherooty alias Kuttappan and Others v. Sarada Amma and Others 1972 KLJ 373). We also would think that the learned Single Judge of the Calcutta High Court on whose observations considerable reliance was placed by the learned counsel for the contesting respondents, does not hold that mere long possession by itself would suffice. We must also remind ourselves that the alleged possession by the assignees under Ext.A6 may not suffice to create a tenancy by holding over. They are not former tenants who were continuing in possession upon determination of the lease in their favour and it could not be said that if a tenancy by holding over had not been created, their possession is to be considered for holding that there was a lease by holding over.
38. The further question which arises is whether the respondents can be treated as tenants at sufferance. We have already referred to the position at law and the distinction between a tenant by holding over and a tenant at sufferance. In the case of a tenant by holding over, there is a fresh tenancy. His right as a tenant is both heritable and alienable. We may refer to the exposition of the law by a Bench of the Bombay High Court speaking through His Lordship Justice Chagla, CJ. in Brigadier K.K. Verma and another v. Union of India and another (AIR 1954 Bombay 358), as follows:
"Under the India law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under S. 9 of the Specific Relief Act, a tenant who has ceased to be a tenant, may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under S.9 and claim possession against the true owner. Therefore, the law makes a clear and sharp distinction between a trespasser and erstwhile tenant. Whereas the trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. It may or may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises and deprive the erstwhile tenant of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment."
39. We may further refer to the Judgment of the Apex Court in M. C. Chockalingam And Others v. V. Manickavasagam And Others (1974 (1) SCC 48). The said case arose under the Madras Cinema (Regulation) Rules, 1957. The Court was dealing with the expression "lawful possession". There was a lease of a cinema theatre to the respondent which had expired and the question arose whether the tenant was entitled to claim that he was in lawful possession. The Court has referred to the Judgment of the Bombay High Court which we have adverted to and proceeded to hold as follows:
"13. We are concerned in this case with the concept of `lawful possession' in the context of the Act with which we are concerned. As stated earlier, Rule 13 has got two parts and we are concerned in this case with the second part. A great stress has been laid by Mr. Setalvad on the decision of the Supreme Court in Lalu Yeshwant singh's case (supra) where this Court considered the possession of a tenant after expiry of the lease, as in this case, as a juridical possession in the context of a provision similar to Section 9 of the Specific Relief Act. He emphasises that such a juridical possession would be a lawful possession, as it is protected by law, namely, under Section 6 (new) of the Specific Relief Act. Mr. Setalvad submits that since even with the best of title to the property, the landlord cannot forcibly dispossess a tenant after expiry of the lease, his possession is lawful possession and the licensing authority was right in renewing the licence which the Board of Revenue had wrongly interfered with. After giving anxious consideration, we are unable to accept the submission of Mr. Setalvad. All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This Section has relevance only to the wrongful act of a person, even if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. The question of lawful possession does not enter the issue at that stage. All that the Court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months of the dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally in a regular civil suit if filed. Mr. Setalvad has drawn our attention to the definition of the word `juridical' in Black's Dictionary, Fourth edition, at page 990. There the definition is given as follows:
Juridical: "Relating to administration of justice or office of a Judge."
"Regular: done in conformity to the laws of the country and the practice which is there observed"
Mr. Setalvad submits that possession of the licensee in this case is in conformity with the provisions of the Specific Relief Act and what is juridical is also lawful.
In the same Dictionary at page 1032 the word `lawful' is also defined as follows:
Lawful: "Legal; warranted or authorised by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law"
It is difficult to appreciate how possession in the instant case can be said to be `warranted or authorised by the law' as per the above definition. On the other hand, what is `contrary to or forbidden by the law' is only the forcible dispossession of a tenant which may even engender breach of the peace. There is a very interesting discussion about the meaning of `lawful possession' in part II, Chapter I of Pollock & Wright's Book "An Essay on Possession in the Common Law", 1888 edition, at page 26.
According to the learned authors:
"Legal possession, the state of being a possessor in the eye of the law...but it may exist.....either with or without a rightful origin."
The illustrations given in the book at pages 27 and 28 are more interesting:
"A tailor sends to J. S.'s house a coat which J.S. has ordered. J.S. puts on the coat, and then has both physical control and rightful possession in law. J.S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the servant has physical control (in this connexion generally called `custody' by our authorities) and J.S. still has the possession in law. While the servant is going on his errand, Z assaults him and robs him of the coat. Z is not only physically master of the coat, but, so soon as he has. `Lawful possession' means a legal possession which is also rightful or at least excusable; this may be consistent with a superior right to possess in some other person."
The learned authors have further put in a word of caution observing:
"The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context."
The Court further held as follows:
"15. The word `lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant singh's case (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.
It was further held as follows:
"16. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession."
This decision has been followed by the Apex Court in R.V.Bhupal Prasad v. State of A.P. And Others ((1995) 5 SCC 698). The Court, inter alia, held as follows:
"8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical."
No doubt, both the decisions were rendered in the context of the Cinema Rules, and the element of public interest was present in the mind of the Court when it interpreted the words "lawful possession." The resultant position is that a tenant upon the determination of the lease, is bound to surrender possession to the landlord unless there is a contract to the contrary. If he were to continue in possession or hold over in circumstances in which he is not a tenant by holding over, he will be what is called a tenant at sufferance. His entry into the property is lawful unlike that of a trespasser. But, it cannot be said that his continuance is lawful or rightful.
40. We notice that in the decision in Badrilal v. Municipal Corporation of Indore (AIR 1973 SC 508), the Apex Court, inter alia, held as follows:
"But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance. The position at law was explained in Kai Khushroo Bazonjee Capadia v. Bai Jerbai Harijibhoy Warden. 1949 FCR 262 at p. 270 = (AIR 1949 FC 124) as follows: "On determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise his possession, a new tenancy comes into existence as is contemplated by Section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 116 of the Act."
41. We may also notice the Judgment of the Apex Court in Smt. Gorabai and Ors. v. Ummed Singh (Dead) by Lrs. and Ors. (2004 SAR (Civil) 441) (which is reported in (2004) 5 SCC 130 also). Therein, the Apex Court was dealing with the provisions of the Madhya Bharat Zamindari Abolition Act, 1951. The Court, inter alia, held as follows:
"16. The possession of the tenant after expiry of the term of lease is treated in law as unauthorised possession being against the consent and wish of the landlord. Such a tenant is called a tenant at sufferance and his possession is deemed to be almost like that of a trespasser. Mulla in the Transfer of Property Act, 9th Edn., at p.1013 explains the status of tenant at sufferance thus:
"A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It therefore cannot be created by a contract and arises only by the implication of law when a person who has been in possession under a lawful title continues in possession after that title has determined, without the consent of the person entitled. But the Act, as already observed is not exhaustive; and the term is a useful one to distinguish a possession, rightful in its inception but wrongful in its continuance, from a trespass wrongful both in its inception and in its continuance. A tenant holding over after the expiration of his term is a tenant at sufferance. If he holds over against the landlord's consent, he is a trespasser, and is liable for mesne profits."
Indeed his possession can be characterised as wrongful possession which is why he may become liable to be mulcted with mesne profits in an appropriately constituted proceeding by the landlord. While he is not a trespasser, the possession of a tenant at sufferance, is wrongful or unauthorised and it is deemed to be almost like that of a trespasser. At the same time, his possession is juridical which means that his possession is protected by law, in that, the landlord cannot evict him except by recourse to law which means that the landlord must take appropriate proceedings against him. We disagree with the decision in N.H. Thadani v. Chief Settlement Commissioner (AIR 1958 Punjab 314( (supra), in that, the Court therein held that the lessor has a right of re-entry. We are of the view that even in the case of a tenant at sufferance, the lessor must resort to lawful means.
42. A tenant at sufferance is in fact no tenant at all. He has no estate or right. He has bare possession. The possession is not accompanied by any further right. As already noted, his possession is in fact wrongful in law. But, he cannot be evicted except in accordance with law.
43. We may also notice that in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Others (AIR 1965 SC 414), in the majority Judgment of Justice J.C. Shah in a case which arose under the Bombay Rent Control Law, it was, inter alia, held as follows:
"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called "a statutory tenant".
Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after if it determined."
44. No doubt, learned counsel for the respondents would point out that the Apex Court has subsequently taken a different view in Damadilal v. Parashram (AIR 1976 SC 2229). The Apex Court after referring to Anand Nivas's case (supra) and taking note of the provisions of the Act considered in the said case proceeded to hold as follows, inter alia:
"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the status can only preserve his statute of irremovability and not the estate he had in the premises in his occupation......................."
The Court also noticed the distinction between the English Act which it considered and similar other Indian statutes. Reference is also made by the claimants to the judgment of the Apex Court reported in V.Dhanapal Chettiar v. Yesodai Ammal (AIR 1979 SC 745). The Court proceeded to hold inter alia that the tenant under the Rent Control Acts continues to be a tenant even though the contractual tenancy had been determined by giving valid notice under the Transfer of Property Act. The Court further noted the fact that the Rent Control legislation made a serious encroachment in the field of freedom of contract. In Smt.Gian Devi Anand v. Jeevan Kumar and Others ( AIR 1985 SC 796) a five Bench Judges of the Apex Court again reiterated that the provisions of the English Rent Acts are not in pari materia with the provisions of the Rent Acts in India. It further noted that the term statutory tenant is a creature of the English Rent Act and the provisions of the English Act being materially different from the Acts in India the decisions of the English Courts may not be an assistance in deciding the question involved which was whether the heirs of statutory tenant are entitled to the same protection against eviction as afforded to tenant under the Act. The Court inter alia held as follows:
"......It is not in dispute that so long as the contractual tenancy remains subsisting, the contractual tenancy creates heritable rights; and on the death of a contractual tenant, the heirs and legal representatives step into the position of the contractual tenant; and, in the same way on the death of a landlord the heirs and legal representatives of a landlord become entitled to all the rights and privileges of the contractual tenancy and also come under all the obligations under the contractual tenancy. A valid termination of the contractual tenancy puts an end to the contractual relationship. On the determination of the contractual tenancy, the landlord becomes entitled under the law of the land to recover possession of the premises from the tenant in due process of law and the tenant under the general law of the land is hardly in a position to resist eviction, once the contractual tenancy has been duly determined. Because of scarcity of accommodation and gradual high rise in the rents due to various factors, the landlords were in a position to exploit the situation for unjustified personal gains to the serious detriment of the helpless tenants................."
In Kalyanji Gangadhar Bhagat v. Virji Bharmal and Another (1995 (3) SCC 725) the question posed was whether a statutory tenant could assign his interest in the demised property. The Court, after referring to the case law including the decision of the Bench of Five Judges in ( AIR 1985 SC 796) (supra) held that the views expressed in Anand Nivas's case inter alia do not lay down the correct law. Lastly, in Om Wati Gaur v. Jitendra Kumar (AIR 2003 SC 229) also the Apex Court took the view that the decision in Anand Nivas case stands disapproved by the judgment in Damadilal v. Parashram (AIR 1976 SC 2229).
45. We are of the view that the principles laid down in Anand Nivas's case that a person remaining in occupation after the determination of the lease has no estate or interest in the premises occupied by him is still the law in regard to a tenant under the Transfer of Property Act. We would also think that the erstwhile tenant governed by the Transfer of Property Act has only a personal right (juridical right) and it is not capable of being transferred. The position no doubt under the Rent Control Legislation in India appears to be quite different as evident from the case law which we have adverted to. As far as the lessee under the Transfer of Property Act is concerned, we are of the view that the erstwhile tenant having no estate or interest capable of being transferred has only a juridical right which is a personal right to remain in possession unless he is evicted in accordance with law. The said right cannot form the subject matter of the valid transfer.
46. For the purpose of a lease under the Transfer of Property Act, we would think that the principle is that the tenant upon expiry of the lease who holds over will be a tenant at sufferance and such a tenant at sufferance has no estate or interest in property and he has only wrongful possession. His interest is described as the least and lowest interest which can subsist in reality (See Mulla on Transfer of Property Act), which has been referred to in Smt. Gorabai and Ors. v. Ummed Singh (Dead) by Lrs. and Ors. (2004 SAR (Civil) 441 (supra). However, this interest is not one which is transferable as "property". It is a right personal to the tenant at sufferance. He has no estate and he has only a personal right against forcible dispossession. No doubt, at any time when he continues as a tenant at sufferance either by payment of rent which is accepted as such with intention to create a fresh tenancy or by assent in any other form by the landlord, an implied contract or fresh tenancy by holding over may arise.
47. On this understanding of the law, let us examine whether the respondents can claim protection from eviction pursuant to the final decree in the partition suit obtained by the appellants. If the assignees in Exts.A3 to A5 were not holding over, as already noted by us, then concededly, they would be tenants at sufferance. They have purported to convey their rights in Ext.A6 executed in the year 1978 to M/s. K.J. Plantations. In Ext.A6, the vendors would claim that they are absolutely entitled to the properties. There have been subsequent assignments apparently on the strength of a power of attorney. The respondents claim under these assignments (Exts.A7 to A14).
48. We have already noted that the right which the tenant at sufferance has, is to continue in possession unless he is evicted in accordance with law. Learned counsel for the appellants would point out that in a proceeding under Order XXI Rules 97 and 99 CPC, mere possession of the claimant would not be sufficient. The Division Bench in Ittiyachan v. Tomy (2001 (3) KLT 117) held as follows:
"An obstruction under O.XXI R.97 of the Code of Civil Procedure or for re-delivery under R.99 of O.XXI of the Code of Civil Procedure, can be maintained by a person who is not bound by the decree or who claims an independent right over the property. After the amendment of the Code in the year 1976, mere possession by the claimant would not be sufficient. The claimant has also to show a right to possession independent of the judgment debtor. In that situation, it is necessary for the claimant in the present case, to show that he has got a right in the property which is not affected or which cannot be affected by the decree, in execution of which it was delivered."
49. Learned counsel for the contesting respondents, however, would immediately point out that the aforesaid declaration of the law, may not be divorced from the facts of the case which, in short, was as follows: There was a partition deed which provided that if during the life time of the father, the allottees wanted to dispose of their shares, they must do so with the consent of the father and with the junction of the father in the deed of sale. The father was the claimant. The Court found that he was not given any right over the property even to take the income therefrom during his life time. The Court found that in the said circumstances, the claimant had no title over the property which had been conveyed by the decree for specific performance. It is also found in fact that the very clause itself was invalid.
50. We may notice that in Sivjnanam Abraham and another v. Mathevan Pillai Bhoothalingam Pillai and others (AIR 1952 TC 359), a Bench of the said Court incidentally has made the following observation:
"Even if there had been a tenancy at sufferance, the tenancy is not that one that could be transferred". We may also notice the following statement of the law as contained in Hill and Redmans Law of Landlord and Tenant (15th Edition): "The tenancy arises by implication of law and cannot be created by contract between the parties. One tenant at sufferance cannot make another".
51. The right which the tenant at sufferance has, is a protection against unlawful eviction. We would think that this is a protection available to the concerned person, namely a former tenant. In other words, the right which was available to the assignees to Exts.A3 to A5 was the right to be not ousted from possession of the property except in accordance with law. The assignees to Exts.A3 to A5 as tenants at sufferance did not have any estate in the property. They had bare possession. While the law certainly would have protected their right, had they not given up their possession, we are of the view that the right to be in possession which was personal to them could not have been assigned, when they did not have any right in the property as such.
52. Learned counsel for the contesting respondents would rely on the Judgment of the Apex Court in Ramesh Dutt & Ors. v. State of Punjab & Ors. (JT 2009 (12) SC 532) wherein the Apex Court held as follows:
"15. Title in or over an immoveable property has many facets. Possession is one of them. Unless there exists a statutory interdict, a person in possession may transfer his right, title and interest in favour of a third party."
Under Section 6 of the Transfer of Property Act, Clause (i) reads as follows:
"Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee."
53. Learned counsel for the appellants would contend therefore that under this Clause, there is no authority to transfer the rights. We are of the view that there may not be any merit in the said contention. What is contemplated under Section 6(i) is only that a tenant having an untransferable right of occupancy cannot assign his interest as such tenant. If the tenant is a tenant by holding over and if the contract does not prohibit transfer of his right, then certainly such a tenant can transfer his right. The provision is intended to apply to cases where by virtue of the contract or even by law, the right of occupancy of the tenant is untransferable. As far as the tenant at sufferance is concerned, he cannot be treated as a tenant as such. He is only a former tenant who holds over. There is no case for the appellants that the respondents are lessees of an estate under the management of a court of wards. It may also not correct to characterise him as a farmer of an estate in respect of which default is made in paying revenue. As far as Clause (h) of Section 6 of the Transfer of Property Act is concerned, no doubt, a transfer cannot be made for an unlawful object or consideration within the meaning of Section 23 of the Contract Act, inter alia. Section 23 of the Indian Contract Act reads as follows:
"23. What consideration and objects are lawful and what not.- The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
Interestingly, we may notice Clause (d) of Section 6 of the Transfer of Property Act. It reads as follows:
"6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,- (d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred to him."
Therefore, an interest in property which can only be enjoyed by the owner personally cannot be transferred by him. No doubt, it deals with a case of an interest enjoyable by the owner.
54. A tenant at sufferance may not have any transferable interest in the property. He has bare possession. His possession is unauthorised and it is almost like that of a trespasser. The law recognizes a juridical right in him to remain in possession unless he is ousted in accordance with law. We would think that this is a right which is personal to him. In fact, it cannot be treated as property. In this connection, we may have to consider what is "property". The word "property" is not defined in the Transfer of Property Act. "Immovable property" is no doubt defined as not including standing timber, growing crops or grass. In Salmond on Jurisprudence (12th Edition), there is an interesting discussion which we may refer to as below:
"The term property, which we here use as meaning proprietary rights in rem, possesses a singular variety of different applications having different degrees of generality. These are the following:-
1. All legal rights. In its widest sense, property includes all a person's legal rights, of whatever description. A man's property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough in the older books. Thus Blackstone speaks of the property (i.e. Right) which a master has in the person of his servant, and a father in the person of his child.
"The inferior", he says (b) "hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior."
So Hobbes says ):
"Of things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree, in most men, those that concern conjugal affection; and after them riches and means of living".
In like manner Locke (d) tells us that "every man has a property in his own person", and he speaks elsewhere (e) of a man's right to preserve" his property, that is, his life, liberty, and estate."
2. Proprietary rights (dominium and status). In a second and narrower sense, property includes not all a person's rights, but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation. In this sense we may oppose to Locke's statement, that a man has a property in his own person, the saying of Ulpian: Dominus membrorum suorum nemo videtur (f). This is probably the most frequent application of the term at the present day, but in the case of a word having so many recognised varieties of usage it is idle to attempt to single out any one of them as exclusively correct.
3. Proprietary rights in rem (dominium and obligatio). In a third application, which is that adopted in this chapter, the term includes not even all proprietary rights, but only those which are both proprietary and in rem. The law of property is the law of proprietary rights in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage a freehold or leasehold estate in land, or a patent or copyright, is property; but a debt or the benefit of a contract is not.
4. Corporeal property (dominium corporis and dominium juris). Finally, in the narrowest use of the term, it includes nothing more than corporeal property- that is to say, the right of ownership in a material object, or that object itself. Thus property is defined by Ahrens (g) as "a material object subject to the immediate power of a person", and Bentham (h) considers as metaphorical and improper the extension of the term to include other rights than those which relate to material things."
55. We may now consider whether there is merit in the contesting respondents relying on the Judgment in Ramesh Dutt & Ors. v. State of Punjab & Ors. (JT 2009 (12) SC 532). That was a case where the appellants who were members of the Managing Committee of a School had obtained a decree for possession. An order of mutation was passed in their favour which, no doubt, was cancelled. The appellants sold a portion of the land to another. There was a FIR lodged. Appellants filed application under Section 482 Cr. P. C. to quash the proceedings. It was in that context that the Court made the observations made in paragraph (15).
56. We need not consider the case that the transfers are fraudulent. We take the view that there was no estate or property which could have been transferred either by the assignors in Ext.A6 or subsequent assignors on the said basis. Possession by itself may be treated as being changed hands unaccompanied by any legal right.
57. The Apex Court in its decision in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal And Another ((1997) 3 SCC 694), inter alia, held as follows:
"9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist should be condemned totally unheard. Such an order of the executing court, therefore, would fall also on the ground of non-compliance with basic principles of natural justice. On the contrary, the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves."
The Apex Court further referred to its earlier Judgment in Bhanwar Lal v. Satyanarain (1995 (1) SCC 6), wherein the Apex Court had found that the application under Order XXI Rule 35 for police assistance to remove the obstruction therein had to be treated as an application under Order XXI Rule 97 CPC. The Court also held in the aforesaid Judgment that each occasion of obstruction or resistance furnishes a cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person.
58. In the other decision referred to by the Execution Court, namely Babu Raj v. Vasanthi Devi (2008 (4) KLT 761), a learned Judge of this Court held, inter alia, as follows:
"11. Until the Apex Court gave an authoritative pronouncement on the real scope of O.21 R.99 C.P.C., the preponderance of judicial opinion was that a stranger to the decree and answering the description under O.21 R.99 C.P.C. could not object to the delivery of the property in execution, before delivery is effected and that his remedy was either to file a suit before delivery or to wait until he is dispossessed so as to make an application under O.21 R.99(1) C.P.C. Vide Prabhakaran v. Kuttian Prakashan (1985 KLT 225) and Augustin and Company v. Damodaran (1991 (2) KLT SN 11 (C.No.16). In other words, such a person had no right to obstruct the delivery in anticipation of dispossession in execution of the decree. But now, after the decision of the Supreme Court in Brahmadeo Chaudhary v. Rishikesh Prasad Jaiswal ((1997) 3 SCC 694), such a person need not wait until he is dispossessed in execution of the decree so as to stake his claim. Such a person also can resist or obstruct the decree holder or auction purchaser under O.21 R.97 C.P.C. complaining of such resistance or obstruction. If, instead of complaining of resistance, the decree holder or auction purchaser applies for re-issue of warrant for delivery of possession, then it could be treated as an application for removal of obstruction under O.21 R.97 C.P.C. and the Court will have to adjudicate upon the rival claims. (Vide - Paras 6 and 11 of Brahmadeo Chaudhary's case (supra)). Thus, now after the interpretation placed on R. 99 of O.21 C.P.C. a purported stranger to the decree has a right to obstruction or resistance even at the pre-delivery stage and upon such obstruction or resistance, the decree-holder or auction purchaser will have to move the court under O.21 R.97 C.P.C. whereupon the Court will have to adjudicate upon the rival claims within the ambit of R.101 of O.21 C.P.C. Such a stranger can also apply under O.21 R.99 C.P.C. after losing possession of the property. (Vide para 9 of Bramadeo Chaudhary (supra)). The questions which are relevant for such adjudication by the Court on applications filed both under R.97 and 99 are indicated under O.21 R.101 C.P.C."
59. The upshot of the above discussion is that we are inclined to reverse the findings and the decision rendered by the court below. We hold that the respondents cannot claim as tenants by holding over. Nor can they claim any right as tenants at sufferance. The result is that while they may have possession, it is unaccompanied by any right as is held necessary by a Bench decision in Ittiyachan v. Tomy (2001 (3) KLT 117).
60. However, there is a case for the contesting respondents that the appellants have not filed any application under Order XXI Rule 97 CPC. It is the respondents who came forward with the claims citing Order XXI Rule 99 CPC and at worst, only their claims can be rejected which would not mean that the appellants will be entitled to a direction to put them in possession. It is also submitted that at any rate, the Court may bear in mind that the claimants would be entitled to compensation under the Kerala Compensation for Tenants Improvement Act, 1959. They also invoked Section 51 of the Transfer of Property Act. It is also contended that as an equitable principle, they are entitled to compensation. According to the claimants, the compensation will become due only on eviction and it is their case that at present they have set up the case that they are tenants and if the finding of tenancy which, in fact, has been entered by the execution court was sustained, then they cannot be evicted. The submission as to compensation for improvements is made alerting us to the consequences of there being no petition under Order XXI Rule 97 CPC. Learned counsel for the appellants would point out that such a case is not there in the claims and they cannot raise such a claim. He would also submit that the claimants cannot be treated as tenants under the Compensation for Tenants Improvement Act, 1958 and they are not entitled to the value of improvements.
61. Now we may consider the prayer in the Appeals. The prayer in the Appeals is to allow the Appeals and direct the court below to remove the obstructions with police aid by receiving applications from the appellants for exercising such powers through Amin deputed by court. But, the learned counsel for the appellants, in the argument note, would pray that the Appeals may be allowed by dismissing the claim petitions. There is no petition filed under Order XXI Rule 97 CPC by the appellants as is clear from the finding in paragraph 11 of the impugned order. The order that may be passed under Order XXI Rule 99 CPC is as indicated in Rule 100 of Order XXI. Either the application may be allowed and the dispossessed party may be directed to be put in possession or the court may dismiss the application. The court may also pass such order as in the circumstances of the case it may deem fit. Learned counsel for the claimants, as we have already noted, would reiterate that no petition has been filed under Order XXI Rule 97 CPC. It is pointed out that there is no decree as against them and they are not parties in the execution petition. Learned counsel for the appellants would submit that the appellants will take steps as per law. As far as the question of compensation for improvements argued by the learned counsel for the claimants is concerned, we may notice the definition of the word "tenant" under the Kerala Compensation for Tenants Improvements Act which reads as follows: "
"tenant" with its grammatical variations and cognate expressions includes- (i) a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee of land, is in possession thereof;
(ii) a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste-land, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator; and
(iii) a person who comes into possession of land belonging to another person and makes improvement thereon in the bona fide belief that he is entitled to make such improvements."
Section 4 of the Act, inter alia, provides as follows:
"4. Tenant entitled to compensation for improvements.- (i) Every tenant shall, on eviction, be entitled to compensation for improvements which were made by him, his predecessor-in-interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation had not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court."
"Eviction" is defined under Section 2 (a) of the Act as follows:
"2. Definitions: In this Act, unless the context otherwise requires, (a) "eviction" means the recovery of possession of land from a tenant;"
Section 5 provides for the procedure to be followed in a suit for eviction against a tenant wherein the tenant has established the claim for compensation. Section 5(3) provides for power to revalue the compensation.
62. We feel that we need not go into this question, as it is not a question which arises from the order on the claim petitions. In fact, whether the respondents/claimants can raise the said issue, are all matters which we will not pronounce on. We also do not pronounce on the question whether the appellants ought to file a petition under Order XXI Rule 97 CPC. We have noticed the stand of the appellants that they will take steps as per law. We would think that we only need to hold that the claim that the claimants are having leasehold right, is without merit and, therefore, the claims filed by the claimants cannot be allowed.
63. We would think that having regard to the stand of the parties and the law applicable, the Appeals are to be disposed of as hereunder:
The Appeals will stand allowed, the impugned order will stand set aside and the claim petitions filed by the contesting respondents will stand dismissed. In the circumstances of the case, the parties are directed to bear their respective costs. However, having regard to the facts and issues raised, we direct further that our Judgment will be kept in abeyance for a period of five weeks from today.
Sd/= K. M. JOSEPH, JUDGE
Sd/= M. L. JOSEPH FRANCIS, JUDGE
kbk/ms. //True Copy// PS to Judge