B.C. Misra, J.
(1) This second appeal under section 100 of the Code of Civil Procedure has been filed by defendant appellants against the appellate judgment and decree of Mr. K. S. Sidhu, Additional District Judge, dated 20th July, 1970 by which he has dismissed the appeal with costs and affirmed the decree of the Sub-Judge, I Class, dated 15th December, 1969, finally maintaining the decree for ejectment of the appellants from the land in dispute, besides payment of Rs. 3,680 and costs.
(2) The material facts of the case lie in a narrow compass. On 11th June, 1964 by Ex. P5 the appellants before me took a piece of land measuring about 1100 sq. yds. situated; in village Chandrawali, Shahdara, from the plaintiff respondent on a rent of Rs. 135 per month. The duration of the lease was 11 months, expiring on 10th May, 1965. There is no dispute between the parties relating to the payment of rent for the period till the expiry of the lease. The appellants, however, did not pay rent for the subsequent period, nor did they deliver vacant possession of the land to the respondent. The respondent after serving notices dated 21st August, 1965 (Ex. Pi & P6), instituted the present suit on 18th October, 1967 for recovery of possession of the land in dispute from the appellants and recovery of the amount mentioned above on account of rent/damages for use and occupation.
(3) The defense of the appellants was that they were not liable to dispossession nor were they liable to pay any arrears of rent and they relied upon clauses 7 and 8 of the agreement Ex. P5 to contend that they were in possession of the land under the agreement of sale included in the said agreement and that the respondent landlord was not entitled to obtain possession, but his remedy was to institute a suit for specific performance of the contract and recovery of the price of the land as mutually agreed in the aforesaid agreement. A replication to the written statement was filed and on the pleadings of the parties, the following issues were framed :
'(1)Whether the relationship of landlord and tenant between the parties ceased on 10-5-65 and the suit for ejectment is not maintainable Opd
(2)Whether a valid and legal notice terminating the tenancy of the defendants has been served If not, to what effect? Opp
(3)Whether the plaintiff is entitled to any damages for use and occupation? If so, at what rate and to what amount Opp
(4)Whether the defendants have paid the rent fur the disputed period? Opd
(5)Whether the defendants are not liable to pay rent for the disputed period Opp
(6)Whether the plaintiff is estopped from filing this suit Opd
(4) The parties proceeded to trial and the court of first instance answered the first issue in the negative and held that the suit for ejectment was maintainable. The answer to issue No. 2 was in the affirmative. The answer to issue No. 3 was in favor of the plaintiff as prayed. The appellants failed, to substantiate issue No. 4 and lost. Issue No. 5 was answered against the appellants. Issue No. 6 was answered in the. negative. As a result, the suit v.'as decreed for recovery of possession as well as recovery of the amount claimed with costs. Feeling aggrieved, the appellants filed the first appeal before the District Court. The lower appellate court reversing the finding on issue No.1 held that the relationship between the parties of landlord and tenant ceased to exist with effect from 11th May. 1965 and that the appellants thereafter were trespassers and not tenants of the respondent and the suit for recovery of possession was maintainable. In answer to issue No. 2 the lower appellate court held that in the view that had been taken on issue No. 1 this issue was redundant and did not need an answer, since the tenancy stood termniated by afflux of time. In answer to issue No. 3,-the appellate court affirmed the findings of the court of first instance. The answer to issue No. 4 was, in agreement with the trial court, returned in the negative. In answer to issue No. 5 the court held that the respondent landlord was entitled to recover the amount by way of damages for use and occupation. Issue No. 6, which was seriously contended before the lower appellate court, was negatived and it was held that the appellants had committed breach of the agreement of sale and that they ought to have surrendered possession of the land in dispute to the landlord before raising objection to his title. Consequently, the issue was decided in favor of the plaintiff. As a result, the appeal was dismissed with costs.
(5) Mr. Hal-bans Singh, counsel for the appellants, has assailed the findings of the lower appellate court in this appeal and has raised the following contentions, namely,
(I)On the finding of the lower appellate court that the appellants were trespassers, the suit for eviction of the appellants as tenants was not maintainable, but the respondent ought to have instituted a title suit for recovery of possession;
(II)The observations of the lower appellate court that the appellants were estopped from challenging the title of the respondent to the land in dispute was erroneous; &
(III)The possession of the appellants was protected and the only remedy available to the respondent was to institute a suit for specific performance of the contract of sale or for recovery of the purchase price; but he could neither obtain possession of the land nor recover rent or damages for use and occupation.
This necessitates reference to the agreement in dispute and the appreciation of the correct legal position.
(6) The agreement, dated 11th June, 1964 is Ex. P5. It is in Urdu language. The first part of it reads as a normal rent note executed by the tenant in favor of the landlord. It is to the effect that the tenants, (who are the appellants before me) have taken the land in dispute, which is described by reference to the measurement as well as khasra numbers. It is mentioned that the land is owned by Mahabir Pershad, respondent before me, and it has been taken on rent for purposes of the business of building timber, bamboos, etc. for a period of eleven months from 11th June, 1964 to 10th May, 1965 on a rent of Rs. 135 per month. The conditions of the tenancy are : (1) the tenants have taken possession of the land in dispute from the aforesaid owner of the land, viz. the respondent before me; (2) the land will be used for purposes of the business mentioned above; (3) the land would not be sublet on rent or otherwise to anybody: (4) any temporary construction carried out on the land would be made at the expense of the tenants without any liability of the landlord; (5) nothing will be done on the land contrary to law or good conduct; and (6) the rent will be payable on the 11th of every month against receipt and if rent for more than two months should fall in arrears, then the landlord could recover the rent and institute legal proceedings for ejectment of the tenants.
(7) Thereafter follow clauses 7 and 8, which are of importance and on which both the parties rely and the legal result from the same is the question under consideration in this appeal. The clauses, translated read as follows :
'7.That after the expiry of the aforesaid period the executants will at once vacate the land and deliver its possession to the aforesaid owner against receipt or otherwise they would purchase the land from the aforesaid owner at the rate of Rs. 14 per sq. yd., and then immediately on 10th May, 1965 the appellants will pay Rs. 500 by way of earnest money and will complete the purchase by registered instrument in their favor upon payment of the price; and for payment of the price the two appellants and their properties would jointly and severally be liable.
(8) If the executants do not have the sale deed executed in their favor on 10th May, 1965 or fail to deliver possession of the land to the owner in the event of not getting a conveyance, then the owner will be entitled to recover the whole of the price at the rate of Rs. 14 per sq. yd. by specific performance of the same through legal proceedings and recover the price of the land together with all costs and damages and the appellant executants will not have any objection to pay the same.' Below this, there is a note that the land is situated in Chandrawal, Shahdara. This rent note is executed by Badri Dass and Sri Pal, executants and is attested by two witnesses.
(9) It is the admitted case of the parties, as has been found by the courts below, that the lease, as originally granted, expired on 10th May, 1965 and thereafter there is no payment of rent and no assent on the part of the landlord to the creation of any new tenancy. The lower appellate court was, thereforee, right in differing from the court of first instance and finding that there was no case of holding over of the monthly tenancy under section 116 of the Transfer of Property Act. The lower appellate court has, however, fallen into an-error in describing the appellants as trespassers in law.
(10) In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden. , B. K. Mukherjee, J speaking for the court observed as follows :
'ONthe determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the Lesser. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord.'
In Badrilal v. Municipal Corporation of Indore, : 3SCR15 , the Supreme Court, after noticing the observations of the Federal Court quoted above as well as the observations in another decision of the Supreme Court in Bhawanji Lakhamashi v. Himatlal Jamnadas Dani, : 2SCR890 , held that a person who was lawfully in occupation did not become a trespasser even if he was not holding over, but he was a tenant at sufferance. In my opinion, the correct legal position is that the appellants were tenants, whose term of tenancy had expired by afflux of time and so they continued to be tenants at sufferance by sheer laches of the landlord and the appellants had neither acquired any rights of the tenants nor had they become trespassers, since their possession at the inception was lawful.
(11) Under the terms of the contract of tenancy the tenant was bound to restore possession to the landlord. This is expressly provided in the contract of tenancy (Ex. P5). This is also clear from clause (q) of section 108 of the Transfer of Property Act, which provides that on the determination of the lease, the lessee is bound to put the Lesser in possession of the property. The obligation to restore possession of the property to the landlord, thereforee, arises under the lease and is an obligation which must be performed by the lessee. The Lesser can enforce it and the lessee is not excused from performing his contractual obligations by committing breach of terms of the lease, since nobody can be excused from performing his obligations by committing breach, (See: Sri Rajah Vatsavaya Subhadrayyamma v. Venkatapati Raju, Air 1924 PC 162. Nor had the landlord by sheer laches in filing the suit lost his right to obtain eviction of tenants, who had no right to stick to possession on the expiry of the lease. The landlord was certainly entitled to enforce the covenants of the lease, which come into play on the expiry of the lease. The suit for ejectment was, thereforee, clearly maintainable. The contention is accordingly rejected.
(12) The next contention is equally devoid of force. There is no doubt that the appellants had taken the land in dispute on rent from the respondent and so under Section 116 of the Evidence Act the appellants are estopped from challenging the title of the respondent unless and until they have restored possession to the landlord (See : Mt. Bilas Kunwar v. Desraj Ranjit Singh, Air 1915 PC 96. It is not the case of the appellant that the respondent landlord had lost his old title to the property after the commencement of the tenancy. At all events, this point is, in the circumstances of the case, merely of academic interest and docs not touch the merits of the case.
(13) The main contention of the learned counsel for the appellants is his third contention that in view of clauses 7 and 8 of the rent note, the appellants had become owners of the property and the only remedy of the respondent was to obtain the price of the land by instituting a suit for specific performance of the contract and he was not entitled to obtain possession by eviction of the appellants. Clauses 7 and 8 of the deed quoted above, are only an agreement for sale of the property. As is clear from section 54 of the Transfer of Property Act, the agreement to sell does not create any rights or interest of the purchaser in the property. Even otherwise, in terms of clause 7 it was the duty of the appellants, if they wanted to avail of the benefit of the clause, 'to immediately pay the earnest money of Rs. 500 and then complete the purchase by registered instrument upon payment of the price for which the two appellants were held jointly and severally responsible, It is the admitted case of the parties and has been found concurrently by the courts below that the appellants did not perform their obligations under clause 7. They neither paid earnest money of Rs. 500, nor did they complete the purchase upon payment of remaining price. As a matter of fact Ex. P4 sent by the appellants in reply to the notice of the respondent indicated repudiation of the contract of sale on the ground that the title of the respondent to the land in dispute was doubtful. It is, thereforee, clear that the appellant had repudiated the contract and disabled themselves from performing the contract. Consequently, under section 39 of the Contract Act, the respondent was excused from performing his obligations under the aforesaid agreement of sale and it was certainly open to the respondent to put an end to the contract of sale. Even otherwise, it would be most unjust and inequitable to hold the respondent bound to his obligations under the contract of sale, while the appellants treated themselves free from the same. The argument of the appellants that the respondent ought to have filed the suit for specific performance of the contract, while appellants had repudiated the same and committed its breach is wholly unsound. Furthermore clause 7 itself casts a duty on the appellants to either at once vacate the land and deliver its possession to the respondent or otherwise pay its price. The failure of the appellants to pay the stipulated price docs not and cannot relieve the appellants from their obligations to deliver possession of the land to the respondent. This agreement of sale is contained in the contract of tenancy, which remains unimpaired. The respondent thereforee, had his option to obtain delivery of the possession by enforcement of the terms of the contract of tenancy or if he so chose to enforce the agreement of sale. But the appellants have no legal or equitable right to compel the respondent to exercise the option and act in one way or the other. Nor can they dictate to the respondent his remedy. The respondent had his own choice and he has selected his remedy to enforce the covenant of tenancy'. To this the appellants have no valid defense. The contention of the counsel has rightly been rejected by the courts below.
(14) As a result, I find there is no merit in the appeal and so affirming the decree of the lower appellate court I dismiss the appeal with costs.