1. This appeal arises out of a suit brought by the plaintiff-respondent for ejectment of the defendant-appellant. It is not now disputed that the plaintiff-respondent is the owner of the house in dispute. It was occupied by one Mazhar Ali against whom a suit for ejectment was brought sometime before 1921. The plaintiff-respondent re-let the house to Mazhar Husain by an instrument dated 19th December 1921, under which he was entitled to retain it at monthly rent of Rs. 4. He agreed to vacate the house of his own accord at the end of one year from the date of the agreement. Mazhar Ali continued to hold under the agreement, though he does not seem to have ever paid any rent. Mazhar Ali died leaving a number of heirs, including the defendant-appellant. Plaintiff-respondent brought a suit for ejectment of the heirs of Mazhar Ali, and obtained a decree in execution whereof the defendant-appellant objected to his own possession being interfered with on the ground that he had not been impleaded in the suit. This objection was upheld by an order dated 22nd December 1923, which runs as follows:
Wahidul Hasan claims title to the house from his father. The decree-holder has obtained decree against his other brothers but did not implead Wahidul Hasan probably because the latter was then out and not in actual possession of the house. In any case when he has now taken possession his resistance is bona fide, and the decree-holder must get a decree against him in regular course.
2. The present suit was brought on 4th March 1925, for ejectment of the defendant-appellant, the allegations against him being that as one of the heirs of his father Mazhar Ali he has no right to the occupation of the house any more than the other heirs had. In defence it was pleaded that the defendant was in possession of the house in dispute in his own right as owner thereof, and that Mazhar Ali did not occupy the house as a tenant holding from the plaintiff-respondent. In the alternative, it was maintained that if the relationship of landlord and tenant be found to exist, the defendant cannot be ejected, no notice to vacate having been given. All these pleas were overruled by the lower Courts, and a decree for ejectment was passed in favour of the plaintiff-respondent. Before the lower appellate Court it was urged that the suit was barred by limitation inasmuch as it was instituted more than one year after the order dated 22nd December 1923 quoted above. The suit was said to be governed by Article 11-A, Lim. Act. Although the plea was raised for the first time before the lower appellate Court, it was entertained but rejected on the merits by that Court. The present second appeal has been preferred by the defendant-appellant. The learned Counsel, who appeared in support of the appeal, has urged (1) that the plaintiff's suit was barred by Article 11-A, Lim. Act, and (2) that the defendant-appellant being a tenant, as alleged by the plaintiff-respondent the suit is not maintainable in the absence of notice required by law. I do not think any of these two contentions can prevail. Article 11-A, Lim. Act applies to a suit
by a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an application by the holder of a decree for the possession of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order.
3. It should be read with Rule 103, Civil P.C. to which it is co-related and which provides that
any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property.
4. It is clear to my mind that Article 11-A Lim. Act can only apply if the suit at brought is one by a decree-holder or auction-purchaser as such and cannot apply if the plaintiff falls back upon his original title as owner of the property in suit treating the defendant as holding permissively. This view finds support from Ambika Charan Bhakta v. Ram prasad Chatterjee A.I.R. 1926 Cal. 377. The plaintiff's cause of action in the present suit is not the adverse order passed in proceedings in execution of the decree obtained by him against the other heirs of Mazhar Ali but is based on his title as owner of the house in dispute and on the defendant occupying the house as one of the heirs of Mazhar Ali and as such not entitled to retain possession thereof contrary to the wishes of the plaintiff-respondent. He (plaintiff-respondent) need not in such a case refer to the previous litigation ending in the decree and unsuccessful execution thereof. He may even concede in favour of the defendant-appellant that he should have been impleaded in the previous suit, and that, not having been impleaded, the decree was inoperative against him, and yet can sue in ejectment in the exercise of his undoubted right as an owner. For these reasons I am of opinion that the present suit is not one contemplated by Order 21, Rule 103, Civil P.C. and that Article 11-A, Lim. Act has no application.
5. The second ground urged on behalf of the appellant is equally untenable. At best Mazhar Ali was a tenant holding over after the determination of the period reserved by the agreement of tenancy. His occupation was at sufferance. His heirs including the defendant-appellant were not expressly or impliedly admitted to the tenancy. They cannot be considered to be holding over in terms of Section 116, T.P. Act and were not entitled to notice required by Section 106 of that Act:
A tenant holding over after the expiry of his term becomes a tenant on sufferance and the landlord's assent alone will suffice to convert such a tenancy into a tenancy from year to year or from month to month according to the nature of the original case. The representatives of a tenant on sufferance, are however mere trespassers, and the lessor cannot by his assent alone, convert such representatives into tenants without their concurrence.
6. Vadappalle Narasimham v. Dronamaraja Seetharamamurthy (1908) 31 Mad. 163. The defendant-appellant has throughout repudiated the title of the plaintiff-respondent, claiming to hold not as an heir of Mahzar Ali but in his own right as owner. The plaintiff-respondent has not accepted him as his tenant by receipt of rent or otherwise. His possession, therefore, cannot be regarded as that of a tenant entitling him to receive notice to vacate as required by Section 106, T.P. Act.
7. The learned Counsel for the appellant has raised a subsidiary point in reference to the frame of the suit and to the nonpayment of Court-fee which is payable on the market value of the house in dispute, assuming the defendant-appellant to be holding otherwise than as a tenant. The plaintiff-respondent has stated all the facts leading to the institution of the suit and has described accurately the present position of the defendant-appellant in relation to the house in dispute. He has not treated him as a tenant, nor has he taken upon himself to characterise his possession as that of a trespasser. He has valued the right in question in the suit at Rs. 43 without stating how that figure is arrived at. No question as to Court-fee was raised in either of the two Courts below, and I am not in a position to say whether there is any insufficiency in the Court-fee paid. The plaintiff-respondent's right to relief cannot be affected by non-payment of full Court-fee which can always be recovered if a good case is made out for that.
8. In the view of the case which I have taken this appeal must fail. It is accordingly dismissed with costs.