1. The plaintiff brought this suit on a kabulayat dated 30th June, 1890, to recover rent from the defendant as his tenant for the years 1897-98, 1898-99, and 1899-1900, in respect of his (the plaintiff's) one-tenth share in a khoti takshim. The kabulayat sued on was for live years.
2. The defendant pleaded in answer that the period of the kabulayat having expired on the 30th of June, 1895, the relation of landlord and tenant between the plaintiff and himself ceased after that date. That would be so, no doubt, according to the decisions in Kantheppa Raddi v. Sheshappa (1897) 22 Bom. 893 and Chandri v. Daji Bhau (1900) 24 Bom. 504 where it was held that where a tenancy for a fixed period expires, and the tenant continues in possession on such expiry his possession is only by sufferance, and no relation of landlord and tenant can after that subsist in the absence of anything from which a new tenancy can be inferred.
3. Section 116 of the Transfer of Property Act provides that where a 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 otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, &c.; In the present case, then, though the kabulayat expired on the 30th of Juno, 1895, the relation of landlord and tenant would continue after that date if the plaintiff assented to the defendant's continuance in possession.
4. But it is contended for the defendant that there was no such assent and that, as a matter of fact, the defendant's possession commenced from that date in the character of managing Khot. We are asked to infer from that that the defendant's tenancy which existed in respect of the plaintiff's share in the khoti merged in or was extinguished by the defendant's possession as the managing Khot. We cannot, however, draw any such inference, having regard to certain admitted facts. Those facts are that though the kabulayat had expired on the 30th June, 1895, the plaintiff sued the defendant in 1897 for rent under it for the years 1892-93 to 1896-97 and a decree was passed against the defendant. That was an adjudication that) the defendant continued in possession after the date of the expiry of the kabulayat as a tenant from year to year and was liable to payment. Having that decree against him, which stands unreversed, the defendant cannot in the present suit fall back on the 30th June, 1895, or any period covered by the decree and say that he is not the plaintiff's tenant, unless he shows that he determined the tenancy, after the decree, 'by some intimation conveyed to the lessor and put him in the way, if he desired it, of acting on that intimation by a re-entry on the premises.' (per Wext, J., in Venkatesh Narayen Pai v. Krishanji Arjun (1875) 8 Bom. 160. Mr Bodas has argued that the defendant's written statement in the suit of 1897 was such intimation, put it cannot be treated as such because that would be going behind the decree in that suit. In Balaji Sitaram v. Bhikaji Soyare (1881) 8 Bom. 164 a similar objection was overruled by Westropp, C.J., who held that the mere denial in a previous suit cannot operate as such notice.
5. The defendant, then, would be liable to pay rent to the plaintiff unless he proves that after the decree in the suit of 1897 he gave such notice to the plaintiff as would in fact terminate the tenancy and unless he put the plaintiff in the way, if he desired it, of acting on that notice by receiving from the defendant as managing Khot what the plaintiff whould be entitled to receive in the tenancy by sufferance had continued.
6. Neither of the Courts below has approached the case from this point of view. The lower Appellate Court has rejected the plaintiff's claim on the ground that the tenancy cased on the expiry of the kabulayat. That, for the reasons above set forth, is erroneous. We must, therefore, reverse the decree and remand the case for disposal with reference to the above remarks. Costs to abide the result.