S. Barman, J.
1. The point involved in this appeal is limitation. The appeal arises out of a suit filed by the unsuccessful plaintiffs in the Courts below for vacating possession of the suit house, for Rs. 288/- as arrears at rent, mesne profits and other incidental reliefs. The plaintiff's suit was dismissed by both the courts below as barred by limitation under Article 139 of the Indian Limitation Act.
2. The facts, so far as material for purposes of deciding the question of limitation are, these: The suit house belonged to Panda family of the defendants. In 1921 at a certain court auction sale one Narayana Gouda purchased the suit house and obtained delivery of possession. On August 15, 1921 father of the plaintiffs purchased the suit house from Narayan Gouda by a registered sale deed. Thereafter the suit house was leased out by the plaintiffs to the defendants' family for 3 years. In 1930 there was a lease by the plaintiffs for a further period of 3 years. The last lease given to the defendants was on April 25, 1935 under a registered Muchalika Ext. 4 for a rent of Rs. 48/- per annum. The lease provided that if at the end of 3 years the defendants did not vacate, they would continue in possession paying Bhada (rent) at an enhanced rate, namely, Rs. 5/- per month. On May 4, 1944, the plaintiffs gave the defendants a registered notice (Ext. B) to quit the suit house and pay the arrears of rent failing which the plaintiffs threatened to file a suit. In 1953 the plaintiffs filed a suit which on transfer was renumbered as T.S. 58 of 1955. The plaintiffs did not pursue that suit on the ground that notice to quit was not according to law. In 1957 the said suit was withdrawn by the plaintiffs with permission to file a fresh suit as the notice to terminate the lease was defective. In 1958 the plaintiffs filed the present suit for ejectment of the defendants as aforesaid after giving a further notice to quit dated February, 1957, Ext. 5. The defence is that Narayan Gouda was a mere benamdar for defendants: that the lease deeds from 1921 to 1936 were ail nominal; that the defendants never paid any rent; and that the suit was barred by limitation. On merits both the courts found in favour of the plaintiffs, namely, that all the lease deeds were genuine and not benami, and that the defendants were tenants under the said lease deeds, but they dismissed the suit as barred by limitation under Article 139 of the Limitation Act which is this :
Description of suit.Period of limitation.Time from which period begins to run
139.By a landlord to recover possession from a tenant.Twelve years.When the tenancy is determined.
3. The question is: When was the tenancy determined in the present case The relevant provisions of Section 111 of the Transfer of Property Act are these:
'111. A lease of immovable property determines:
(a) by efflux of the time limited thereby :
(b) where such time is limited conditionally on the happening of some event--by the happening of such event:
(g) by forfeiture: that is to say,......
(2) In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself;....... and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.'
The plaintiffs' point is that under the last lease deed dated April 25, 1935 Ext. 4 if after 3 years, namely after 1938 the defendants do not vacate the house they are to pay Rs. 5/- per month as Gharbhada (rent). According to the plaintiffs, there is no question of determination of the lease period under Ext. 4, that is to say, in 1938. The plaintiffs' further point is that if the lease determined on the expiry of the second notice to quit dated Feb. 26, 1957, Ext. 5 by virtue of Section 111(h), then the suit filed in 1958 was within time. As regards the first notice to quit, namely Ext. B dated May 4, 1944, the plaintiffs' point is that the said notice was waived because the plaintiffs allowed the defendants to remain in possession in spite of the first notice. The plaintiffs submit that the defendants as lessees remained in possession of the suit house after determination of the lease granted to them and that the plaintiffs assented to the defendants' continuance in possession and accordingly the defendants remained in possession as tenants from month to month since thereafter until the second notice to quit was served on them on February 25, 1957 Ext. 5 before filing the present suit in 1958.
4. These contentions urged on behalf of the plaintiffs were accordingly repelled on behalf of the defendants as hereinafter discussed.
5. The last issue by a Registered Muchalika dated April 25, 1935 Ext. 4 was determined in 1938. In fact no rent was paid by the defendants 1n terms of the said tease after 1938. A suit by a landlord for ejectment of the defendant who has continued in possession of the land for more than twelve years after the determination of the lease by the efflux of the period mentioned in the I lease is barred by limitation under Article 139 when there is no evidence to show, as in the present case, that the defendant paid any rent to the plaintiffs after the expiry of the lease nor is there any evidence to establish that the landlord otherwise assented to the continuance of the defendants as tenants.
6. Alternatively it was submitted on behalf of the defendants-respondents that the tenancy was determined on the expiration of the first notice to quit dated May 4 1944 Ext. B by virtue of Section 111(h) of the Transfer of Property Act. On this point, the plaintiffs' contention was that the first notice to quit was waived. On waiver of notice to quit, Section 113 with the illustrations thereto, on which the plaintiffs rely, reads as follows:
'113. A notice given under Section 111, Clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.'
7. The waiver of a notice to quit does not depend upon the election of any party, but upon the consent of both. The tenancy is put an end to by a valid notice to quit and this determination of the tenancy cannot b9 waived without the assent of both. In illustration (h) to the section the consent of the lessee is implied by his remaining in possession. Mr. Justice Denning (as he then was in Lowenthal v. Vanhoute, 1947-1 All ER 116 held that when a notice to quit has been given, a subsequent notice to quit is of no effect unless it can be inferred fram other circumstances that a new tenancy has been created after the expiry of the first notice. The law is now well settled that where a tenancy is determined by a notice to quit, it is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect. A subsequent notice to quit is of no effect unless, with other circumstances it is the basis for inferring an intention to create a new tenancy after the expiration of the first. The mere facts that the tenant continues in possession and a suit is not instituted are insufficient. The relevant passage in Woodfall on Landlord and Tenant (26th Edition) at page 1004 is also in the same line as stated thus:
'Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first.'
8. The phrase 'showing an intention to treat the rease as subsisting' in Section 113 is clear to indicate that to amount to waiver there must be evidence of such intention. The parent provision of Section 113 containing the said phrase requires that there must be evidence showing an intention to treat the lease as subsisting. The illustrations must be read subject to this parent provision in the Section itself. Thus viewed illustration (b) on which the plaintiffs rely is subject to the governing provision of the section itself, namely that there must be evidence 'showing an intention to treat the lease as subsisting.' It is quite manifest from the provisions of Section 113 that in order to constitute waiver there must be an intention not only on the part of the lessor but also on the part of the lessee to treat the lease as subsisting. In order, therefore, to determine whether or not in a particular case there was waiver of notice to quit one has to see whether from the conduct of the landlord and tenant, by demand and acceptance of rent or by demand followed by express promise to pay or otherwise an intention to treat the lease as subsisting can be inferred and this would certainly depend upon the facts and circumstances of each case. The question under Section 113 is whether the act of the landlord is such as necessarily leads to the inference that there was an intention of creating a renewal of the tenancy or as treating the tenant as still subsisting. It is a question of fact to be determined in each case.
9. In the ultimate analysis, it boils down to the question of fact whether in the present case there is evidence showing an intention to treat the lease as subsisting. It is quite dear that no new tenancy was created after 1938. In fact the defendants had not paid any rent to the plaintiffs. That apart, the defendants 1n the written statement themselves took the stand that they never paid any rent and that the lease deeds were all nominal and benami. To the plaintiffs' first notice to quit dated Way 4, 1944 Ext. B. the defendants 1n their replies dated May 27, 1944 (Exts G and H) denied the plaintiffs' claim altogether, and claimed that they (defendants) were enjoying the suit house in their own right. The defendants further stated in the said replies that they never paid any rent to the plaintiffs. So it is quite clear from the facts of this case, that there is nothing 'showing an intention to treat the lease as subsisting.' The first notice to quit dated May 4, 1944 Ext. B was never waived.
10. Thus in either view, whether the tenancy was determined in 1938 after the expiry of the lease period under the last lease Ext. 4 or In 1944 on the expiry of the first notice to quit dated May 4, 1944 Ext. B, the suit having been filed on May 5, 1958, that is to say, more than twelve years from the time when the tenancy was determined as aforesaid, the suit is barred by limitation under Article 139.
11. In this view of the case, the decision of the Courts below is upheld. The appeal is dismissed with costs.