Jagat Narayan, J.
1. This is an appeal by the defendants against an order of the District Judge, Bharatpur, remanding the suit under Order 41, Rule 23, Civil P, C. after reversing the finding of the trial Court on the question of limitation.
2. Govind plaintiff filed the present suit on 8-4-63 against the 4 defendants tor the recovery of arrears of rent and for eviction on the grounds of default and personal necessity in respect of a building containing two shops and an upper storey. The building was originally owned by Ram Gopal father of Sitaram and Radhey Shyam defendants and grand-father of Kishori Shyam and Ram Babu defendants. Ram Gopal executed a sale-deed of this property in favour of Ratanlal on 30-1-1933.
On the same date Ram Gopal executed a rent-note in favour of Ratanlal taking the property on lease for a period of 3 years. This rent-note was not registered. On 19-9-38 Ratanlal sold the building to Gyasi Ram father of the present plaintiff. The case in the plaint is that Ram Gopal used to pay rent to Ratanlal after he had sold the property to the latter and to Gyasi Ram after Ratanlal had sold it. It was alleged that rent was paid upto 30-11-60 regularly but that it was not paid from 1-12-60. The suit was brought for the recovery of arrears of rent from 1-12-60 to 31-3-63.
3. The suit was contested by the defendants who alleged that the sale-deed in favour of Ratanlal was fictitious and was executed to save the property from creditors, that Ratanlal was a friend of Ram Gopal, that no rent was over paid to Ratanlal or to Gyasi Ram or to Gyasi Ram's sons and grand-sons. It was admitted that Ram Gopal executed a rent-note in favour or Ratanlal. But it was alleged that the rent-note was also fictitious and was executed in order to make it appear that the sale-deed was genuine. It was asserted that Ram Gopal continued to be in possession of the property as owner and whenever rent was demanded from Ram Gopal or his sons by Gyasi Ram the latter was told that Ram Gopal was the owner of the property and he had no right to recover any rent. The trial Court framed the following issues:
(1) Is the suit within limitation?
(2) Whether the suit premises are with the defendants on lease on a monthly rent of Rs. 10?
(3) Whether the plaintiff is entitled to recover rent for 28 months from 1-12-60 to 31-3-63 at Rs. 10 per month from the defendants?
(4) Is the plaintiff entitled to evict the defendants from the suit premises?
Both parties produced evidence on the whole case pleaded by them in the plaint and the written statement respectively. All the pleas raised in the pleadings will be taken to be covered by the above issues and a decision shall have to be given under the above 4 issues of all the pleas.
4. The trial Court assumed that Ram Gopal became the tenant of Ratanlal by executing a rent-note in his favour. No decision was given by it on the plea that the sale-deed as well as the rent-note in favour of Ratanlal were fictitious. On the assumption that Ram Gopal had become the tenant of Ratanlal by executing the rent-note for a period of 3 years it held that the suit was barred by limitation under Article 139 of old Limitation Act on the expiry of the period of 12 years from the date of the expiry of the tenancy under the rent-note. It repelled the contention of the plaintiff that merely by a demand of rent on the part of the plaintiff there was a renewal of the lease within the meaning of Section 116 of the Transfer of Property Act of the expiry of the period of tenancy.
5. The appellate Court was under the impression that by admitting the execution of a rent-note the defendants had admitted that Ram Gopal was a tenant of Ratanlal and his successors. This was erroneous as the case of the defendants was that the rent-note as well as the sale-deed were both fictitious. They did not admit that Ram Gopal was ever the tenant of Ratanlal or Gyasiram.
6. Further the appellate Court held that as Ram Gopal and his sons remained in possession of the premises after the determination of the lease and rent was demanded from them there was a renewal of the tenancy under Section 116 of the Transfer of Property Act and the suit of the plaintiff could not be barred under Article 139 of the old Limitation Act. This finding is also erroneous. Section 116 of the Transfer of Property Act runs as follows :
'If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.',
7. What the section contemplates is that from the side of the person in possession there should be an offer of continuing in possession as tenant and the landlord should assent to it by accepting rent from him or otherwise. Once the lease is determined a fresh tenancy can only be created by a bilateral agreement between the person in possession and the owner of the premises. No fresh tenancy can be created merely by the tenant, whose lease is determined, continuing in possession. Such possession is wrongful. It becomes rightful if there is a fresh contract of tenancy between the parties. This contract may be express or implied.
In an express contract of lease the parties settle all the terms of it--the rate of rent, the period of lease and whether the tenancy is yearly or monthly or otherwise. Section 116 deals with cases of an implied contract in which the tenant holding over makes an implied offer for the renewal of the tenancy and the landlord accepts it impliedly. It lays down that in such a case in the absence of an agreement to the contrary the lease will be renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106. One instance of how the implied contract may take place has been given in the section. That is a case where the tenant holding over tenders rent and the landlord accepts it.
8. It will thus be seen that there can be no renewal of the contract of tenancy under Section 116 of the Transfer of Property Act by the unilateral Act of the landlord in demanding rent from the tenant holding over. There can be no renewal under this section where the person in possession does not pay rent and asserts a title hostile to the landlord.
9. I would like to mention here that in a case governed by the Rajasthan Premises (Control of Rent and Eviction) Act a tenant becomes a statutory tenant on the detennina-tion of his contractual lease and this statutory tenancy is neither heritable nor transferable.
10. The trial Court disbelieved the evidence of the plaintiff and his witnesses that rent was ever paid bv Ram Gopal or the defendants to Ratanlal or to plaintiff's fatheror to the plaintiff. On this finding the suit was rightly dismissed as being barred fay limitation under Article 139.
11. The suit can only be held within limitation under Article 139 if there is a finding that rent was recovered from the defendants at any time within 12 years ot the institution of the suit. No such tinding was recorded by the learned District Judge.
12. The appeal is accordingly allowed and the order of remand is set aside. The appeal is remanded to the Court of the District Judge, Bharatpur, for decision of the question of limitation in the light of the observations made above.
13. As the entire evidence on all the issues had been recorded the learned District Judge should have decided all the issues himself instead of remanding the case to the trial Court.
14. The costs of this appeal shall abide the final result of the suit.