(1) The only question in this second appeal is whether the suit is barred under Art. 139, Limitation Act.
(2) The facts found by the Courts below may be briefly stated. In a partition that was effected in 1927, the plaint schedule property fell to the share of the plaintiff. He leased it to the defendant's husband, late Baliah, is June 1927 at a monthly rent of Rs. 0-4-0 for a period of three years. After the expiry of the period of 3 years Baliah continued to be in possession and, after his death, the defendant, his widow, continued to be in possession of the land. There is no evidence to show that the defendant paid any rent to the plaintiff, nor is there any evidence to establish that the landlord otherwise assented to the continuance of the defendant as a tenant. The suit was filed by the lanlord for evicting the defendant on 24.8.1948, i.e., clearly beyond twelve years from the date of expiry of the leasedeed. Both the Courts held that the suit was barred by limitation under Art. 139. Limitation Act. Hence the second appeal. Article 139, Limitation Act reads :
'By a landlord to recover possession from a tenant -- Twelve years -- When the tenancy is determined'.
Mr. Kondiah, the learned counsel for the appellant, contends that the burden is upon the defendant to establish that the tenancy has been determined beyond twelve years prior to the date of the suit. In support of his contention he relied upon the decisions in -- 'Taishibhai Naranbhai v. Ranchhod', 26 Bom 442 (A) and -- 'Tiruchurna Perumal v. Sanguvien', 3 Mad 118 (B). It is not necessary to consider these decisions in detail, as the proposition laid down therein is unexceptionable. The defendant-sessee who seeks to establish that the suit is barred by limitation is certainly bound to prove that the lease has been determined beyond twelve years prior to the date of the suit. But in the present case, the lease-deed, which has been held by the Courts below to be genuine, 'prima facie', establishes that the term of lease had expired in June 1930. The burden thereafter shifts on theplaintiff to allege and prove that notwithstanding the expiry of the term fixed in the lease-deed, the defendant continued to be a tenant holding over within the meaning of S. 116, Transfer of Property Act. In this case, there is no evidence to the effect that either the defendant paid rent to the plaintiff or the plaintiff by some other act recgonised the defendant as his tenant. If so, it follows that a suit filed beyond twelve years from the date of the termination of the tenancy is clearly barred by time under Art. 139, Limitation Act.
This conclusion is supported by two decisions of the Madras High Court, namely, -- 'Sudalaimuthu Thevan v. Sappani Thevan', AIR 1925 Mad 446 (C) and -- 'Sitharamiah v. Ramaswamy', AIR 1938 Mad 73 (D). In the first of the two decisions cited above, Venkatasubba Rao J., under similar circumstances, held that the suit was barred by limitation. The learned Judge observed at page 446 as follows :
After the determination of the lease in 1902, no new tenancy was created because neither the lessor nor his legal representative assented to the lessee continuing in possession. Under S. 116, Transfer of Property Act, if a lessee remains in possession after the determination of the lease and the lessor accepts rent from thelessee or otherwise assents to his continuing in possession, the lease is renewed from year to year or from month to month according to the purpose for which the property was originally leased. No new tenancy having, therefore, been created, the article directly applicable is Art. 139, Limitation Act
So too, Horwill J. in AIR 1938 Mad 73 (D) held that a suit filed by a landlord after the expiration of twelve years from the date when the tenancy was terminated was barred by limitation under Art. 139, Limitation Act. When a similar argument now raised before me was argued before the learned Judge (Horwill J.) he observed at page 74 as follows :
There is no evidence that the defendants paid rent, nor is there any evidence that the plaintiff assented to the possession of the defendants after 1909 or that the defendants accepted the title of the landlord.
When the question of onus of proof was passed on the learned Judge, he observed at a subsequent stage as follows :
Where a question of limitation is involved the burden is on the defendants to prove when the tenancy was determined : but they have done so in this case by reference to Ex. A itself which shows that the tenancy that the plaintiff relied on ceased in 1909. If any tenancy arose after 1909 the plaintiff, would have to prove it. If they could do so, 'then the defendants will have to prove when that tenancy was determined
I learned Judge and they directly apply to the facts of this case. The learned counsel strongly relied upon the decision of a Division Bench of the Madras High Court in -- 'Adimullam v. Pir Ravuther', 8 Mad 424 (E). The passage relied upon is found at page 427 of the report. It reads :
By Art. 139, Act 15 of 1877, the landlord has a right to sue to recover possession from a tenant any time within twelve years from the determination of the tenancy. It is for the person who resists the right to show that the tenancy has determined. All that is shown in this case is that the tenancy for the term has determined, for aught that appears, the tenancy by sufferance subisted up to the date of the suit
No doubt, the proposition so stated 'prima facie' supports the contention of the learned counsel for the appellant. But what the learned Judges meant by tenancy by sufferance is indicated at an earlier stage of the judgment at page 426. There, the learned Judges stated :
Where a person who has been let into or allowed to remain in possession as a tenant for a term of years holds over, he becomes a tenant by sufferance.
They are equating a tenant holding over with a tenant holding over by sufferance. If the defendant was a tenant holding over within the meaning of S. 116, Transfer of Property Act, I entirely agree with the conclusions arrived at by the learned Judges, for, in that case, the tenancy had not been determined by any of the modes prescribed by law. I may also point out that the view of the learned Judges in regard to tenancy by sufferance has been dissented from in subsequent Bench decisions in -- 'Vadapalli Narasimham v. Seetha Ramamurthy', 31 Mad 163 (F) and in -- 'Subravoti Ramiah v. Gundala Ramanni', 33 Mad 260 (G) I would, therefore, agreeing with the Courts below, hold that the suit is barred by limitation.
(3) In the result, the second appeal falls and is dismissed with costs. Leave granted.
(4) Appeal dismissed.