C.M. Lodha, J.
1. This appeal has been filed by the plaintiff from the appellate judgment and decree of the Civil Judge, Ajmer dated 20-3-1970 by which the plaintiff's suit for ejectment from the house in dispute and for recovery of damages was dismissed.
2. Briefly stated the plaintiff's case as set out in the plaint is that he leased out the house in question, situated near Tripoliya Gate, Ajmer to the defendant No. 1 Kundomal by a registered lease deed dated 15-12-1950 on a monthly rent of Rs. 15/-, though the possession of the house was handed over to the plaintiff on 1-4-1951. The tenancy is said to be a monthly one. It was stated that the defendant No. 1 had not paid rent to the plaintiff for more than six months and hadunauthorisedly and wrongfully removed the tin-shed from the house and had also admitted the defendants Nos. 2 and 3 as sub-tenants without the consent of the plaintiff. It was also alleged that the efendant No. 1 had made certain material alterations in the house without the permission of the plaintiff. The plaintiff's case is that he terminated the defendants' tenancy by a notice of ejectment dated 31-7-1967, but since the defendant had not vacated the house the plaintiff filed the present suit on 21-9-67 in the Court of Mun-siff, Ajmer City (West), Ajmer for ejectment as well as for Rs. 550/- on account of rent, and damages.
3. The defendant No. 1 denied that he was the plaintiff's tenant and pleaded that he had full authority to make any changes in the property and also to let out the same to whomsoever he liked. He also pleaded that he was the owner of the property and was in adverse possession of the same for more than 12 years.
4. The defendant No. 2 pleaded want of knowledge regarding the allegations contained in the plaint and pleaded that the cabin standing on a part of the property in question had been constructed by him at his own cost.
5. After recording the evidence produced by the parties the learned Mun-siff by his judgment dated 22-4-1969 decreed the plaintiff's suit for ejectment as well as for arrears of rent/mesne profits at Rs. 550/-. He further directed that the plaintiff will be entitled to recover Rs. 15/-per month as mesne profits from the defendant No. 1 from the date of the suit till he vacates the premises in question.
6. Aggrieved by the judgment and decree by the trial Court the defendant filed appeal, which was allowed by the learned Civil Judge, Ajmer by his judgment dated 20-3-1970. The learned Civil Judge reversed the judgment and decree of the trial Court and dismissed the plaintiff's suit as barred by limitation. Consequently, the plaintiff has come in second appeal to this Court.
7. Learned counsel for the appellant has urged that the bar of limitation had not been raised by the defendant either in the written statement or at any stage of the proceedings in the trial Court. It is contended that the plea of limitation in the present case as dealt with by the learned Civil Judge is a mixed question of fact and law and the learned Civil Judge should not have allowed it to be raised for the first time in appeal and in case he thought it fit to do so he should have framed an issue on this point and given oppor-tunity to both the parties to lead evidence on it. In the alternative it is contended that on the record as it stands the plea is not sustainable.
8. Before I deal with the arguments advanced before me, I may refer to the main findings arrived at by the learned Civil Judge. In the first place he has held that the defendants Nos. 2 and 3, who are father and son are admittedly the tenants of defendant No. 1, and, therefore, if it is proved that the defendant No. 1 is a tenant of the plaintiff, the allegation that the defendant No. 1 had sub-let the premises in question to the defendants Nos. 2 and 3 automatically stands proved. He has also found that there is no force in the defendant's plea of adverse possession and it had been rightly overruled by the trial Court. The finding of the trial Court that the defendant No. 1 came into possession of the suit premises as a tenant of the plaintiff vide rent note Ex. 7 was not disputed on behalf of the defendant No. 1 before the learned Civil Judge, who also found that it was proved by the plaintiffs evidence that the defendant No. 1 had paid rent to the plaintiff prior to a period of 4 to 5 years of the recording of the plaintiffs statement dated 21-11-1968.
9. Having recorded the aforesaid findings in favour of the plaintiff the learned Civil Judge, however, came to the conclusion that the plaintiff had failed to discharge the burden of proving that notwithstanding the expiry of the term fixed in the lease deed Ex. 7 the defendant continued to be a tenant holding over within the meaning of Section 116 of the Transfer of Property Act, and, therefore, the suit must fail under Article 67 of the Limitation Act, 1963 as barred by limitation. He also observed that though the defendant No. 1 did not take any specific plea of limitation yet the defendant was entitled to rely on it as it involved a pure question of law.
10. I may observe at the very outset that I do not agree with the learned Civil Judge that the question of limitation raised by the defendant No. 1 in this case before the first appellate Court was a pure question of law. In my view it was a mixed question of fact and law. The plaintiff came forward with a case that initially the defendant No. 1 was admitted as a tenant under the lease deed Ex. 7 dated 15-12-1950 though the actual possession was handed over to him on 1-4-1951. Then in para No. 3 of the plaint he has averred that the defendant No. 1 was a monthly tenant and the rent agreed was Rs. 15/-per month and that the defendant No. 1 had failed to pay rent for a period of more than six months. It is true that the lease period fixed in Ex. 7 is three years, and there is no specific averment in the plaint that after the efflux of the time fixed in the lease deed Ex. 7 there was a fresh agreement between the parties by which the defendant No. 1 was to continue as plaintiffs tenant on a monthly rent of Rs. 15/-. But from the allegations made in paras 3 and 4 of the plaint it appearsthat the plaintiff's case was that the defendant No. 1 was a monthly tenant on a monthly rent of Rs. 15/- and that he had failed to pay rent for a period of more than six months prior to the date of the suit. On the other hand, the defendant pleaded that the plaintiff was never his landlord but that he was the owner of the premises in dispute by virtue of adverse possession for more than 12 years, and that he had full authority as owner to make any changes in the property and to lease the same to anybody he liked. He has not pleaded even in the alternative that if he is held to be a tenant of the plaintiff by virtue of the lease deed Ex. 1, the tenancy was determined by efflux of time mentioned in the lease deed Ex. 7 and since the suit had been instituted after more than 12 years of the determination of the tenancy by efflux of time, the suit was barred by limitation. It does not take one long to notice that the defendant No. 1 did not come with clean hands at all and rested his whole case on the plea of his alleged ownership and complete denial of the plaintiff's title to the premises in dispute with the result that neither the parties nor the trial Court directed their attention to the question as to when the tenancy pleaded by the plaintiff was determined and when did the limitation for filing the suit for ejectment start? The defendant as a matter of fact kept lying low and it appears that having failed on all fronts he thought it convenient to spring up a surprise on the plaintiff by resorting to the plea of bar of limitation at the appellate stage without laying down any proper foundation for the same.
11-12. In order to appreciate the point of limitation arising in this case it would be proper to reproduce Article 67 of the Limitation Act, 1963:--
'67. Bv a landlord to recover possession from, a tenantTwelve yearsWhen the tenancv is determined.'
Learned counsel for the respondents was at pains to show that since the period fixed in the lease deed Ex. 7 was three years the tenancy was determined by ex-piry of the period of three years under Section 111(a) of tbe Transfer of Property Act. In support of his contention he cited a large number of authorities but I consider it wholly unnecessary to refer to those authorities as in my view the principle propounded by the learned counsel in this respect admits of no doubt and the learned counsel for the appellant has no quarrel with the same. The moot point, however, is as to when, in the facts and circumstances of the present case, the tenancy between the parties was determined? Learned counsel for the respondent strenuously urged that since the plaintiff had based bis case on the rent note Ex. 7 which was for a fixed term of three years, the tenancywill be deemed to have been determined after the expiry of three years, that is, on 31-3-1954, and it was, therefore, for the plaintiff to have alleged and proved that there was holding over or a fresh, contract of tenancy between the parties on or after 1-4-1954, and since the plaintiff had failed to allege and prove this fact the suit was rightly dismissed as barred by time by the learned Civil Judge. In order to lend support to his submission he has relied on Katam Verrayya v. G. Subbamma, AIR 1955 Andhra 78, Banwarilal v. Mt. Hus-saini, AIR 1940 Lah 410, Sheikh Makbul v. Union of India, AIR 1960 Orissa 146, and Sheogobind v. Sujan, AIR 1960 Pat 156.
13. I have carefully looked into the authorities relied upon by the learned counsel for the respondent. The principle enunciated in these cases appears to be unexceptionable. The burden of proving that the tenancy was determined more than 12 years before the filing of the suit lies on the defendant though that burden may be discharged by certain presumptions arising in favour of the tenant in the facts and circumstances of a given case. For instance, if the plaintiff bases his claim solely on a lease deed for a fixed term and does not plead anything in addition to it, and the defendant pleads bar of limitation, it may be presumed that the tenancy stood terminated with the efflux of time. The facts are, however, different in the present case and according to the allegations contained in the plaint the defendant No. 1 continued to be a monthly tenant at a rent of Rs. 15/- per month after the execution of the lease deed Ex. 7.
14. Then again in all the cases referred to by the learned counsel for the respondent the defendant had taken specific plea as to limitation and a finding had been given by the trial Court as well as the first appellate Court as to when the tenancy stood determined. In the present case, however, as already observed the defendant was playing the game of hide and seek and he asserted his own title to the premises in dispute so much so that he even did not rely on an alternative plea that if he was held to be a tenant of the plaintiff the suit was barred as having been instituted after more than 12 years of the determination of the tenancy. In this state of affairs in my view the learned Civil Judge was not justified in upholding the plea of limitation without even giving a chance to the plaintiff to lead evidence on it even though as already stated by me in the earlier part of this judgment the plea was not one of pure law, but involved investigation into the facts also in order to determine the specific date of determination of the tenancy. Assuming that he was justified in allowing the defendant to raise this plea it was according to me necessary to have framed an issue on thispoint and to have remanded the case to the trial court for recording evidence on it. But to have decided this point against the plaintiff on the record as it stands was not justified. The plea no doubt goes to the root of the case, and, I therefore, enquired from the learned counsel for the respondent if he wanted to adduce any evidence on this question so that I may send the case back to the trial Court and get the evidence of the parties recorded on this specific point, but the learned counsel for the respondent strenuously asserted that he did not want this course to be adopted, and that the question of limitation may be decided on the record as it stands, and that his client did not want to produce any further evidence on it.
15. I have, therefore, examined the plea of limitation on merits also and find that it is not substantiated. The plaintiff appeared in his evidence and has stated as P.W. 1 that he had not been paid rent only for a period of 4 to 5 years. When cross-examined on this point he has stated that after the expiry of the fixed period of three years as mentioned in the lease deed Ex. 7 the defendant paid the rent to the plaintiff on certain occasions and on certain occasions he did not. Towards the end of the cross-examination he has positively asserted that even after 1957 the defendant was in possession of the premises in question as his tenant. In rebuttal the defendant No. 1 did not come in evidence and examined his grand-son Murlidhar (D.W. 1), who stated that he is not a tenant of the plaintiff, and that his grand-father is also not the plaintiff's tenant, nor had he ever paid any rent to the plaintiff. He has further stated that he and his grand-father Kundomal live separately, and in the cross-examination he has made no secret of the fact that he had no talk with Kundomal about the premises in question. It is crystal clear from the statement of Murlidhar that he has absolutely no knowledge regarding his grand-father's rights qua the property in question. No other evidence has been produced by the defendant and the trial Court as well as the first appellate Court relied on the plaintiff's statement and found that even after the expiry of period of three years fixed in the rent note Ex. 7 the relationship of landlord and tenant continued between the plaintiff and the defendant No. 1 and the latter actually paid rent to the plaintiff upto the period of 4 or 5 years before the recording of the statement of the plaintiff. The plea of adverse possession taken by the defendant was negatived by the courts below and was not pressed into service on behalf of the respondents before me. It appears that what the plaintiff failed to plead specifically and clearly in the plaint, was proved by him in the course of his statement and the defendant cannot get rid of the plaintiff's statement relied upon by thecourts below by raising an argument that the statement is vague specially when it has been accepted by the courts below. In my opinion, there are sufficient indications in the plaintiff's statement that even after the expiry of the period fixed in the lease deed Ex. 7 the relationship of landlord and tenant between the plaintiff and the defendant No. 1 continued and the tenancy did not stand determined on 31-3-1954. I, therefore, find myself unable to agree with the learned Civil Judge that the tenancy was determined on 31-3-1954, and, therefore, the suit is barred by time.
16. There is yet another aspect of the case which also helps the plaintiff. The Delhi and Ajmer Rent Control Act was in force in Aimer and therefore there is no gainsaying the fact that even after the efflux of time limited by the lease deed Ex. 7 the landlord could not have ejected the tenant-defendant under law as the tenant got statutory protection. It is true that in absence of there being fresh contract between the parties, express or implied the tenant would become a statutory tenant and would have no estate as such heritable or transferable as held by their Lordships of the Supreme Court in Ganga Dutt v. Kartik Chandra Das, AIR 1961 SC 1067, yet so long as the acts of the tenant did not come within the mischief of the Rent Control Law no cause of action would accrue to the plaintiff to bring a suit for ejectment. Learned counsel for the respondents sought to argue that in spite of the Rent Control Law granting protection to the tenants against ejectment the running of limitation after the efflux of time under Article 67 of the Limitation Act would not stop, and, therefore, the landlord would be bound to bring a suit for ejectment even though after the efflux of time the so called statutory tenant continues to pay rent. With all deference to the learned counsel the proposition appears to be wholly untenable and if carried to its logical conclusion it would completely negative the provisions of the Rent Control Law. I am, therefore, unable to accede to it. On the finding that even after the efflux of time limited by the lease deed Ex. 7, defendant No. 1 continued to pay rent to the plaintiff within 12 years of the filing of the suit, there is no escape from the conclusion that the tenancy did not stand determined and the cause of action for filing the suit for ejectment did not accrue to the plaintiff on 31-3-1954.
17. As already stated above the defendant did not want any opportunity to prove the case relied upon by him in the first appellate Court that the tenancy was determined on 31-3-1954 and I may state at the risk of repetition that on the record as it stands I am not prepared to hold that the tenancy was determined on 31-3-1954 and the suit is barred by time.Consequently, I set aside the finding of the first appellate Court that the suit is barred by limitation,
18. Before parting with the case I may advert to a passing reference made by the learned counsel for the respondent to Ex. 7 by which the learned counsel tried to prove that it was only an agreement to lease and did not create any tenancy between the parties. Apart from the fact that I do not agree to the interpretation put by the learned counsel on this document, in my view, the learned counsel is not entitled to agitate this question now specially when before the first appellate Court it was not disputed that Kundo-mal had come into possession of the suit premises as a tenant of the plaintiff vide Ex. 7 rent note.
19. No other point was argued on behalf of either of the parties.
20. The result is that I allow this appeal, set aside the judgment and decree by the learned'Civil Judge, Ajmer dated 20-3-1970 and restore those of the Munsiff, Ajmer City (West), Ajmer dated 22-4-1969. Costs of this appeal as well as of the first appellate Court will be easy.