1. I agree with the judgment my learned brother is about to pronounce.
Seshagiri Aiyar, J.
2. In this suit for possession of one item of the demised Kunies and for rent on other items, two defences were put forward by the tenants. The one was that the claim for rent was barred by limitation and that, therefore, it should not be set off against their claim for the value of improvements, secondly, that, as plaintiff was in possession under a decree which was reversed by the High Court, he was accountable for the profits which the defendants could have derived from the property during the period of that possession. As regards the first point, the Court in Harihara Mangalath v. Ibrayan Kutti 38 Ind. Cas. 655, after examining the provisions of Act I of 1900, came to the conclusion that the landlord is entitled to setoff arrears of rent even though barred by limitation. That decision has not been dissented from in any later ease. That concludes the first point.
3. As regards the second point, the defendants must be deemed to have impliedly surrendered the lands and were, therefore, not entitled to claim the profits there from. They succeeded in the previous suit in the High Court on the technical point that the landlord did not give a proper notice to quit. It is true that this decree enabled them to claim restitution at once. It would then have been open to the landlord to give the tenants a proper notice to quit and to terminate the tenancy legally. Apparently to avoid another suit for possession, the tenants accepted the possession of the landlord as good, thereby impliedly surrendering the tenancy. By their failure to claim immediate possession they led the landlord into the belief that no proper notice to quit was necessary. They are, therefore, now estopped from pleading that his possession was not lawful. In this view, they had no right to 'claim profits for the period they were out of possession.
4. For these reasons the second appeal must be dismissed with costs.