1. The defendant is the appellant. The suit is for delivery of possession of the suit properties and for recovery of Rs. 1100 being the damages for use and occupation of the suit properties for two years prior to suit.
2. The dispute in this case is between the grandsons of one Ramaswami Gounder his first wife Achiammal and his son-in-law who married his daughter by the second wife by name Kanakammal. The suit properties originally belonged to one Natesa Gounder, father of the defendant, and were sold by him under Ex. A-29 dated 19-1-1934 to the father of the plaintiff and was leased back by the purchaser to the father of the defendant under Ex. A-30 dated 20-1-1934. The case of the plaintiff is that the original lessee Kandasami was paying rent to his father regularly, that after the lessee's death the son of the defendant who continued in possession was similarly paying the rent to his maternal uncle during his minority and to him after he attained majority that the defendant committed default in payment of rent for two years prior to suit that on enquiry the plaintiff learnt that the defendant had effected a transfer of patta in his name fraudulently and that the present suit is filed for recovery of possession with past profits.
3. The defense to the suit is that the sale deed Ex. A-29 was obtained benami in the name of the plaintiff's father in order to avoid claims on the part of the defendant's brother that the lease deed Ex. A-30, dated 20-1-1934 was also obtained in similar circumstances that on the expiry of the period mentioned in Ex. A-30 the defendant's father surrendered possession and the defendant had taken possession in pursuance of his title and has been in continuous possession ever-since exercising rights of ownership and in any event he has perfected his title to the suit properties by adverse possession. The further defense raised is due to the recent disputes between the plaintiff and the grandmother of the defendant the present suit is filed taking advantage of the fact that the sale deed Ex. a-29 stood in the name of his father and that claim is barred by limitation also.
4. The trial Court accepted the plaintiff's case that the sale deed under Ex. B-4 which is the same as Ex. A-29 was really in favor of the plaintiff's father that the defendant's father and thereafter the defendant continued in possession only as tenants and that the plaintiff is entitled to recovery of possession, there being no bar of limitation as the possession of the defendant was only that of a lessee who had not surrendered possession. The trial Court further accepted the claim for profits made by the plaintiff and decreed the suit as prayed for.
5. The defendant filed A. S. No. 134 of 1968 in Sub-Court Dindigul. The learned Subordinate Judge held that the defendant failed to establish the plea of benami put forward by him that the defendant was in possession of the suit properties only in his capacity as lessee and not as owner that the lessee's possession was referable to the lease transaction that the lessee was under Ex. A-30 during his lifetime and thereafter the defendant having paid the rent the relationship of landlord and tenant continued and that the suit is not barred by limitation and the defendant did not acquire title by adverse possession. In the result the appeal was dismissed.
6. The defendant has filed the above second appeal. The learned counsel for the appellant contends(1) that the sale deed Ex. B-4 (Ex. A-29) was benami for the benefit of the defendant(2) that the suit is in any event barred by limitation and(3) that the defendant has perfected his title by adverse possession. On the question of benami the appellate Court has found that the defendant has failed to adduce proof of possession of funds sufficient for the purchase of the property under Ex. B-4. Regarding the custody of the original documents the appellate Court found that the original document Ex. B-4 was produced only by the defendant, but how the defendant got into possession of the document has not been satisfactorily explained by the plaintiff. On the question of possession of the suit properties the appellate Court found that the patta never stood in the name of the defendant as long as his father was alive and even after the father's death the patta was transferred only recently and immediately thereafter the plaintiff has questioned the same. The learned Judge also took note of the fact that the plaintiff and his brother did not include the suit properties in their agricultural income-tax returns. The learned Judge further referred to the other circumstances relied on by the defendant. viz., that the suit property was not included in the partition Ex. A-6 dated 19-2-1944 in the family of the plaintiff that the property was not included in the release deed Ex. A-8 dated 6-6-1951 and that the said property was offered as security by the defendant when he applied for loan under Ex. B-114 dated 21-11-1957. Taking the various circumstances, the learned Judge as a fact found that the plea of benami put forward by the defendant has not been made out. That is a question of fact which is binding on me. The learned Judge further found that he was in possession of the suit properties, but that such possession was not in the defendant's capacity as owner, but as lessee in recognition of the plaintiff's title as owner.
7. The learned counsel for the appellant places considerable reliance upon the decision in Thailammal v. Batumalai (1965) 1 MLJ 383 wherein Srinivasan J. had occasion to consider a similar question. The facts in the said case are as follows. On S mortgaged the suit property in favor of the defendant's husband in 1930. At the same time, he granted a lease of the same property in favor of K for five years. S and K died during the lease period. The widow of K and his son sold the suit property to the defendant's husband. The sale was in discharge of the mortgage executed by S. The plaintiff son of an undivided brother of S filed a suit for recovery of possession from the alienee on the ground that the conveyance was not binding on him. The plaintiff was born in 1940, and his undivided father was alive when the alienation took place. The suit by the plaintiff was filed beyond 12 years from 1935. It was held that the suit was barred by limitation under Art. 139, that the limitation began to run from 1935 when the lease came to an end by efflux of time, that the plaintiff's attempt seeking to extend the period by reason of his minority must fail, because in 1935 he was not born that the time which began to run from 1935 cannot stop running and that the suit filed more than 12 years from 1935 is barred by limitation. The learned Judge further held that when once the lease comes to an end by efflux of time merely because a tenant continued to be in possession of the land the relationship of landlord and tenant can no longer subsist and after the termination of the tenancy the tenant's right to set up title hostile to the landlord does not appear to be negatived by any decided cases. In the present case the lease came to an end on the termination of the lease under Ex. A-30 by efflux of time. The lessee however, remained in possession after the expiry of the lease period. He therefore, became a tenant on sufferance. The question therefore is whether the tenant continued in possession after lease period without the consent of the landlord or whether he continued in possession after the expiry of the lease period with the consent of the landlord. In English law, the former is called a tenant by sufferance while the latter is called a tenant holding over. The tenancy on sufferance will be converted into a tenancy at will by the assent of the landlord. The assent of the landlord for the continuation of the tenancy after the termination of its period will create a new tenancy. The assent of the lessor may be inferred from(1) acceptance of rent,(2) a demand for rent,(3) filing of a suit for rent,(4) an agreement as to an item in an account for rent, or(5) the grant of an invalid lease. These circumstances can only create presumption which is rebuttable.
8. Sri. M. V. Krishnan, appearing for the respondent relied on Bilas Kunwar v. Desraj Ranjit Singh. ILR 37 All 557 AIR 1915 PC 96 in support of his contention that a tenant who was let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restores possession by surrender to his landlord. Section 116 of the Indian Evidence Act deals with the tenant's estoppel and under that section no tenant of immovable property shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property. It is thus seen that the defendant who is the tenant in order to claim title in himself must first establish that he surrendered the tenancy to the landlord. Without establishing the fact of surrender, it is not open to the defendant to deny the title of the landlord and claim an adverse title from the mere fact of his continuing in possession. In Atyam Veeraraju v. Pechetti Venkanna : 1SCR831 Bachawat, J. following the decision of the Privy Council in ILR 37 All 557 AIR 1915 PC 96 --
'Having regard to Section 116 of the Indian Evidence Act. 1872 during the continuance of the tenancy the tenant will not be permitted to deny the title of the deity at the beginning of the tenancy. In ILR 37 All 557 AIR 1915 PC 96 it is observed-'A tenant who has been let into possession cannot deny his landlord's title however defective it may be so long as he has not openly restored possession by surrender to his landlord'................'
The question, therefore is whether the defendant in the present case has surrendered possession to the landlord in order to be entitled to claim adverse title as against the landlord. It is no doubt true that the defendant has been in factual possession for over the statutory period; but the question is whether he has surrendered possession to the landlord and still continues to remain in possession of the same even after such surrender. The courts below have not addressed themselves to this aspect of the matter.
9. I therefore call for a finding from the Subordinate Judge of Dindigul, on the question whether the defendant has surrendered possession of the leased property on the expiry of the lease period under Ex. A-30. The Subordinate Judge will send the finding within two months from the date of receipt of records by him. Ten days for objections.
10. Case remanded.