1. This is plaintiffs' appeal from a decree dismissing their suit for possession.
2. Dampatkishore, father of respondent No. 1, Brajrajkishore and husband of respondent No. 2, Premwatibai, was the malguzar and lambardar of mouza Silari in, which the fields in dispute are situate. These fields formed the absolute occupancy tenancy holding of the plaintiffs. Dampatkishore obtained three decrees for arrears of rent against the plaintiffs and in execution thereof put the fields to sale. The fields were purchased by Dampatkishore himself on 1-11-1941 but; possession thereof was not taken by him until 11-7-1946 on account of the pendency of other proceedings initiated by the plaintiffs.
3. Subsequent to the sale of the fields, Dampatkishore obtained decrees for arrears of rent against the plaintiffs in civil suit Nos. 225-C of 1941 (1 of 1945) and 16-C of 1945, The former suit was for recovery of the rent which fell due on 15th January 1940, 1st May 1940, 15th January 1941 and 1st May 1941, that is for a period prior to the sale. The other suit was for recovery o the rent which fell due on 15th January 1942, 1st May 1942, 15th January 1943 and 1st May 1943 and covered the period subsequent to the sale. The lower appeal Court held that these suits did not create the plaintiffs tenants of the fields and in this view dismissed their suit for possession.
4. It was not disputed that the decree in civil suit No. 225-C of 1941 (1 of 1945), being for the arrears of rent for the period prior to the sale, is ineffective for the purpose of creation of any tenancy. As far as the other suit is concerned, it is not a point of contest that no payment was offered by the plaintiffs and the decree remained unrealised and unexecuted.
5. There can be no doubt that a tenancy cannot be created by a unilateral act; like any other contract, there must be an offer by one party and its acceptance by the other. The tenancy may be implied from the conduct of the parties, e.g., where rent is paid by one party and accepted by the other: See Govindrao v. Sarjabai, AIR 1926 Nag 62 (A). It is, however, necessary that the rent should be offered, as also accepted, with the clear intention of creating a tenancy before the relationship of landlord and tenant can be deemed to be established between the parties.
Thus in Ilahibux v. Munirkhan, 1953 Nag LJ 147: (AIR 1953 Nag 219) (B), mere acceptance by the landlord of certain payments made by the tenant during the pendency of his suit for ejectment and damages for use and occupation was not held sufficient to establish a waiver within the meaning of Section 116 of the Transfer of Property Act. Similarly in Fatelal Shah v. Dayalal, ILR (1949) Nag 167: (AIR 1949 Nag 218) (C), it was held that in a case of diversion of the holding to non-agricultural use, acceptance of rent by the landlord 'Cannot operate as waiver unless the tenant establishes clearly that the rent was accepted by the landlord with full knowledge of the diversion: See also Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124 (D).
6. In the instant case, all that appears is that due to the pendency of the supervening proceedings, preventing the delivery of possession, of the holding after the Court sale, Dampatkishore could not decide properly how to describe the amount that became due to him by the plaintiffs, on account of their continued enjoyment of the holding. He could well have described the action as one of damages for use and occupation.
It, therefore, appears clear that merely by his claiming the amount as rent, he could not possibly have intended to re-establish the relationship of landlord and tenant between him and the plaintiffs. So far as the plaintiffs are concerned, they disclaimed the liability, whatever the reasons. They also made no effort to pay any amount and Dampatkishore also took no steps to execute the decree which, consequently became barred by limitation. The proceedings, as also the decree, therefore, became a dead letter and cannot be invoked as evidence of the creation of a fresh tenancy.
7. The result is that the appeal fails and is dismissed with costs.