1. This is a second appeal by the defendants in a suit for ejectment from a shop and for arrears of rent. The relevant facts are briefly as follows. By a qabuliat dated Kunwar Sudi 8 Sambat 1966 Bhunni, the predecessor.in-interest of the defendants appellants, took on lease shop No. 88 from Gokaran Bam, the predecessor-in-interest of the plaintiffs-respondents. The material terms of the qabuliat were (a) the period for which the shop was-taken was one year beginning from Miti Kunwar Sudi 10 Sambat 1966 = 24th October 1909, up to Miti Kunwar Sudi 10, Sambat 1967, which corresponded with 13th October 1910, (b) the rent was Rs. 10 a year, (c) the rent was to be paid month by month, (d) if the rent was not paid in any month, the lessor was given power to eject the lessee and to take possession of the shop and further to recover the rent of the whole year from the lessee and his representatives. On 1st August 1935, the representatives of the lessor brought the suit which has given rise to this appeal. They alleged in the plaint that a notice to quit had been given to the defendants ending with the month of the tenancy and1 that rent for the last three years before the suit was in arrears. The defendants pleaded in their written statement that their father Bhunni had not taken the shop in suit from the plaintiff's predecessor-in-interest, that it was not correct that the tenancy began from the 24th day of each month, that the notice to quit was contrary to law, that the defendants had constructed the shop in dispute anew at a considerable expense and that the plaintiffs were not entitled to get possession of the shop without reimbursing the defendants for the construction of the shop. They also pleaded that the suit was barred by Section 11, Civil P.C., inasmuch as the plaintiffs had in 1929 brought a suit against the defendants in respect of this very shop and that that suit had been dismissed.
2. The trial Court of the Munsif found that the defendants' father had taken the shop on lease under the qabuliat mentioned above, that the notice to quit was according to law, that the defendants had failed to prove that they had rebuilt the shop and that the suit was not barred by rea judicata, inasmuch as the previous suit in 1929 was for possession against a trespasser and for the recovery of the price of certain materials wrongfully utilized by the defendants in reconstructing the shop. It may be noted that it was held in the previous suit that the defendants were really tenants of the plaintiffs and not their licensees. In the result the trial Court decreed the suit for ejectment as well as for arrears of rent. In appeal the learned Civil Judge agreed with the trial Court in regard to the decision about the validity of the notice and the suit being not barred. About the materials of the shop he held that the defendants must have used new materials when they rebuilt the shop and therefore allowed them to remove those materials within a month from the date of the appellate decree. As to costs the lower Appellate Court ordered that the parties should bear their own costs in both the Courts.
3. In this second appeal the defendants pray that the suit of the plaintiffs be dismissed with costs. Their contention is that the notice to quit was not valid and further that the defendants having been found to have rebuilt the shop, the original tenancy set up by the plaintiffs must be deemed to have come to an end. The plaintiffs have filed a cross-objection in which they take exception to the decision of the lower Appellate Court allowing the defendants to take away the materials of the shop and disallowing the plaintiffs the latter's costs of the litigation. As to the appeal, only one point has been pressed before me and that is about the validity of the notice. The argument of learned Counsel for the appellants is that the term of the original lease was for one year, that is from Kunwar Sudi 10 Sambat 1966 to Kunwar Sudi 10 Sambat 1967, corresponding to 13th October 1910, and when the lessee or his representatives were allowed to hold over, the new tenancy commenced from 14th October 1910, and therefore the notice given on the basis that the tenancy was from the 24th of each month was invalid.
4. As to this argument, I am of opinion that the tenancy having commenced from the 24th of October and having been a month to month tenancy, the initial date will stand after the term of one year for which the original lease was taken had expired and the lessee or his representatives were allowed to hold over. I do not take the lease as having been for the period up to 13th October 1910. It was for a period of twelve months beginning from 24th October 1910 and not from 24th October 1909 to 13th October 1910; consequently when the period of 12 months expired the date of the commencement of tenancy remained the same, namely the 24th of October. Apart from this the lease contained a clause to the effect that if the rent was not paid in any month, the lessor would be entitled to eject the lessee apparently without giving any notice. Under this term of the lease, the defendants who have admittedly not paid any rent for the last three years or so, are liable to be ejected without any notice, and consequently even if the notice given be assumed to have been invalid, the plea would not avail them in the suit for ejectment.
5. It is settled law that when the lessee holds over after the expiry of the term fixed by the lease, the relations between the parties are governed by the same terms as are embodied in the original lease : see Khuda Bakhsh v. Abid Husain (1902) 12 O.C. 279 and Lalman v. Mt. Mullo . It has also been argued on behalf of the plaintiffs that the defendants being the representatives of the original lessor were not entitled to any notice at all inasmuch as under Section 116, T.P. Act, the terms of the original lease govern only the lessee and the lessor or the latter's legal representatives, and if the legal representatives of the lessee come in they do so by sufferance and the lessor can eject them when, ever he likes. In support of this argument reference is made to the case reported in Zafaryab Hasan v. Umar Daraz Ali Khan : AIR1929All610 . It is not necessary to discuss this point as the appeal must fall on the two grounds mentioned in the preceding paragraphs of this judgment. As to the cross-objections I think they must be allowed. The trial Court found as a fact that the defendants had not rebuilt the shop. It remarked that
the plaintiffs' witness Motilal has stated that the shop was built 27 or 28 years ago and it was never demolished or built again and I see no reason to disbelieve the statement of this witness.
6. The lower Appellate Court seems to have based its finding on this point on mere surmise and inference. The relevant portion of the judgment of that Court is as follows:
We should not lose sight of the fact that in the previous suit Ram Bharosa, plaintiff, admitted that the materials which the defendants had taken away had been utilized by them in repairing the shop. I therefore agree with the defendants' counsel that the defendants must have used new materials when they rebuilt the shop.
7. I am unable to understand how this inference could be drawn from the statement made by Ram Bharose. It is quite possible to use old materials in repairing the shop without having to bring in new materials, and even if it be assumed for the sake of argument that some new materials were used, we do not know what they were and there can be no justification for the order of the Court below that the defendants could remove all the materials of the shop, that is the old as well as the new materials. As to costs also, I cannot find it possible to maintain the order of the lower Appellate Court. The plaintiffs have substantially succeeded in their claim for ejectment and arrears of rent, and the defence had failed almost entirely even in the lower Appellate Court. There was therefore no valid reason for disallowing the plaintiffs their costs of the case. In the result I dis. miss this second appeal with costs and allow the cross-objection with costs. The decree of the trial Court is restored. The plaintiffs will have their costs from the defendants in all the Courts. Leave to file a Letters Patent Appeal is refused.