Amberson Marten, Kt., C.J.
1. There are two points in this second appeal. The first one is a point of procedure, namely, that the plaintiff ought not to have been allowed to make a case of adverse possession, seeing that it was not pleaded, nor was there any express issue about it. But it is clear that the point was expressly raised and argued in the trial Court, and, so far as we can see, without objection. No objection was taken to it in the memorandum of appeal to the lower appellate Court. The point was again argued there apparently without any objection. So, too, in the memorandum of appeal to us there is no point taken that it was not permissible to the plaintiff to raise the point of adverse possession. We are, accordingly, of opinion that the defendant-appellants have suffered no hardship in this respect, and that it is too late now to raise this particular point.
2. The next point relied upon by the appellants is one of law, namely, that it is not shown that the plaintiff obtained a title by adverse possession within the meaning of Article 144 of the Limitation Act, They point out, and we think correctly, that Article 139 technically does not apply because this is not a suit by a landlord to recover possession from the tenant, but is a suit by an ex-tenant to recover possession of the land.
3. Now, on the facts it is clear that for a large number of years one Shammahomed, who had been granted a rent-note in 1888, Exhibit 97, was in possession of the land after the expiration of that rent-note, and that he paid no rent for the land, It is argued by the appellants that mere non-payment of rent under such circumstances does not amount to adverse possession. Certain authorities in Gangabai v. Kalapa Dari Mukrya I.L.R. (1835) 9 Bom. 419 Prasanna Kumar Mookerjee v. Srikantha Rout I.L.R. (1912) Cal. 173 and Archbold v. Scully (1861) 9 H. L. C. 360 are relied upon in support of that contention.
4. Now, I can well understand that where the term of a lease is still continuing, mere non-payment of rent, without any thing more, would not amount to adverse possession. And, when those three cases, I have just mentioned, are looked at, it will be found, I think, that in every one of them the lease or tensncy had not in fact expired. But that is not the case we have to deal with. We have to deal with a case where the fixed period of three years elapsed so long ago as 1891 or thereabouts. What then was the legal position of Sham-mahomed at the end of that fixed period Here I think the two cases in Kantheppa v. Sheshappa I L.R. (1897) 22 Bom. 893 and Chandri v. Daji Bhau I L.R. (1900) 24 Bom. 504 are distinctly in point, as showing that at the expiration of the fixed period of three years, and in the absence of any proof of a fresh tenancy, the lease must be taken to have determined, and the possession of the former tenant became a wrongful one. Even if he may be called a tenant on sufferance, that, as pointed out by Sir Lawrence Jenkins, merely makes him a tenant by the laches of the true owner and does not create any privity of estate between them. He may, there fore, be ejected forthwith, Mr. Justice Candy in the same case (Chandri v. Daji Bhau), at p. 509, expressly states that possession of such a person holding over is wrongful.
5. That being so, it seems to us to follow that if the possession at the expiration of the three years was wrongful, then it became adverse within the meaning of Article 144 of the Limitation Act, and, consequently, time began to run against the alleged true owner as from that date. It is clear that far more than the period of twelve years has expired. Consequently, Shsmmahomed acquired in course of time a title by adverse possession. The plaintiff succeeds through him ; and the re suit is that, in our opinion, the judgment of the lower appellate Court was correct in finding that the plaintiff had made out his case. Accordingly, I would dismiss the appeal with costs.
6. I concur.