Satyanarayana Rao, J.
1. These three second appeals are between the same parties and relate to the recovery of an amount from the respondent in all the second appeals either as rent or as damages for use and occupation. The appellants along with others were co-sharers in certain Khandriga known as Patuvari Khandriga of an extent of about 25 acres. This land was in the possession of one Gunupati Balarami Reddi for a considerable length of time. In 1931 the Patuvari people who were the owners of this Khandriga instituted a suit for partition amongst themselves and impleaded in that suit as the sixth defendant Balarami Reddi also. Balarami Reddi pleaded in that suit that he had acquired permanent rights of occupancy in the land. So far as the documentary evidence goes this land was granted on lease to one Veeraraghava Reddi, the maternal uncle of Balarami Reddi, on the 28th of August, 1896, for a period of nine years under a registered lease. After the expiry of that lease Balarami Reddi's family seems to have continued in possession and on the 22nd of August, 1917, there was a further lease to Balarami Reddi by all the co-sharers for a period of eleven years on a rent of Rs. 300 per year for the first three years and Rs. 360 per year for the later eight years. This document, however, was not registered. But even after the expiry of the period fixed under that unregistered lease, admittedly, Balarami Reddi continued in possession. In the partition suit it was held that Balarami Reddi did not acquire occupancy rights in the Khandriga lands and that his possession was that of an yearly tenant as he was paying rent to the co-sharers. The suit as against him was therefore decreed, granting a decree in ejectment. There was an appeal to this Court against the decision in the suit, O.S. No. 22 of 1931 in A.S. No. 225 of 1942. This Court confirmed the finding of the trial Court that Balarami Reddi did not acquire occupancy rights in the land. He was directed to pay mesne profits at Rs. 360 per year to the co-sharers. This judgment of the High Court is dated 23rd November, 1943. While the proceedings in the partition, suit were going on, the present appellants some of the co-sharers instituted a suit, O.S. No. 61 of 1936 on the file of the Sub-Court, Nellore, which was really an earlier suit O.S. No. 472 of 1934 instituted in the Court of the District Munsiff and subsequently transferred and re-numbered as stated above. In that suit, the plaintiffs claimed for recovery of the appellants' share of rent or damages for use and occupation for faslis 1341, 1342 and 1343 from Balarami Reddi in respect of the suit land. For the subsequent period, faslis 1344 to 1349 a further suit, O.S. No. 222 of 1940, was filed on the same basis and for faslis 1350 to 1353, O.S. No. 416 of 1944 was filed. The suit, O.S. No. 61 of 1936, was disposed of by the learned Subordinate Judge of Nellore along with the partition suit and he granted a decree to the appellants for rent at the rate of Rs. 550 per year for the faslis 1341 to 1343 and also for the subsequent faslis up to 1351. The decree was confined only to the share of the appellants which was 1948. There was an appeal against the decision of the learned Subordinate Judge to the District Court, Nellore. The learned District Judge modified the decree of the Subordinate Judge by reducing the rate of rent to Rs. 360 instead of Rs. 550 and also disallowing the decree relating to faslis other than 1341, 1342 and 1343, on the ground that there was no prayer in the plaint for a period of more than three faslis. Against this decision of the learned District Judge, S.A. No. 2029 of 1945 is filed by the appellants. The other two suits, O.S. Nos. 222 of 1940 and 416 of 1944, were disposed of by the District Munsiff, Nellore. He granted a decree on the basis of rent of Rs. 360 per year for faslis 1347 to 1349 in O.S. No. 222 of 1940 and faslis 1351 to 1353 in O.S. No. 416 of 1944. He disallowed for the other faslis on the ground that the claim was barred by limitation, treating the suit as one for rent governed by Article no of the Limitation Act. Against the decision of the learned District Munsiff in both the suits, there were appeals to the Subordinate Judge of Nellore. The learned Judge dismissed the appeals and confirmed the decree of the learned District Munsiff. S.A. No. 1696 of 1945 is against the decision in O.S. No. 222 of 1940 and S.A. No. 1695 of 1945 is against the decision in O.S. No. 416 of 1944.
2. Two questions have been raised in these second appeals. The first question is whether the Courts below were right in reducing the amount claimed in the plaint at the rate of Rs. 550 per year to Rs. 360 per year; second, whether the decision of the Courts below that the claim for faslis 1344 to 1346 and 1350 was barred by limitation is correct.
3. As regards the first question in S.A. No. 2029 of 1945 we have the finding of the learned District Judge of Nellore based on a consideration of the oral evidence that the fact that the defendant agreed to pay a sum of Rs. 550 per year is not made out; and that the plaintiffs were entitled to a decree only on the basis of rent at Rs. 360 per year. As the finding is based on an appreciation of oral evidence and as all the Courts have practically agreed on one ground or another that that is the proper rate to which the plaintiffs could be entitled to, I see no reason to differ from the finding of the Courts below on this point. The plaintiffs will, therefore, be entitled to rent at Rs. 360 per year as found by the Courts below.
4. As regards the second question, a very interesting question of law was raised by Mr. Raghava Rao, the learned Advocate for the appellants. His argument is that on the facts the defendant was not a tenant but merely a person in permissive possession of the land after the expiry of the unregistered lease of 1917 and that the claim of the plaintiff against the person in such possession could only be by an action for damages for use and occupation and that such an action is governed by Article 120 of the Limitation Act as it is neither a suit for mesne profits governed by Article log nor a suit for rent governed by Article no nor even a suit for damages for breach of contract express or implied governed by Article 115. I am however of the opinion that on the pleadings and the course the trial took in the various Courts, it is not open to the appellants now to contend that Balarami Reddi was not in possession as a tenant after the expiry of the unregistered lease. No doubt the present appellants were not parties to the appeal against the partition deeree which was disposed of by this Court but the view taken by the learned judges who disposed of that case regarding the relationship between Balarami Reddi and the Paturvari people was that notwithstanding the inadmissible unregistered lease, as there was a demand for the rent and acceptance by the co-sharers, Balarami Reddi was in possession as a tenant from year to year. If, therefore, Balarami. Reddi was in possession as a tenant from year to year till 1928, what was his position thereafter? The plaintiffs in all the three plaints with which we are now concerned put forward the case that Balarami Reddi continued to be a tenant and that under an oral agreement Balarami Reddi agreed to pay rent at the rate of Rs. 550 per year instead of Rs. 360 as under the unregistered lease and that, in fact, for the three faslis 1338, 1339 and 1340, Balarami Reddi did pay rent to them. The cause of action is stated to be 10th February of each year as that was the date on which rent became payable. In the suit which is the subject-matter of S.A. No. 2029 of 1945 in the trial Court the only issues raised with reference to this matter were issues 3(a) and 3(b). Issue 3(a) reads as follows:
What is the amount of rent payable to the Khandrigadars every year by the defendant?' Issue 3(b) runs thus:What is the correct amount of rent payable to the plaintiffs every year by the defendants?
No issue was taken in the earliest of the suits on the question that Balarami Reddi was merely a person in permissive possession of the land and not as a tenant. On the contrary, the issues assumed a tenancy and the only question raised being regarding the rent, issues appropriate to that and that of the share of the plaintiffs were raised. The finding as stated by me already was that the rent payable was Rs. 360 per year and that the share of the plaintiffs was 19/48. In the two later plaints some arrangement was pleaded and the cause of action was stated to be the end of each fasli. In the judgment which is under appeal in S.A. No. 1695 of 1946 and S.A. No. 1696 of 1946, the learned Subordinate Judge says that it was admitted by the plaintiffs that the first defendant was let into possession as lessee or tenant in respect of the suit land and it was further admitted that the first defendant was paying rent separately to the co-sharers of the suit land. Then he proceeds to discuss the other question argued before him. In my opinion, therefore, in the face of the pleadings it is not really open to the plaintiffs now to raise the question that Balarami Reddi was not a tenant but was occupying an intermediate position between a tenant and a trespasser.
5. Even apart from this, I think that in view of the admission contained in the plaint in O.S. No. 61 of 1936 that after the expiry of fasli 1337 they had received rent from Balarami Reddi for faslis 1338, 1339 and 1340 clearly converts the tenancy by sufferance, assuming that for some reason or other, the tenancy determined in 1928, into a tenancy of holding over. This of course is on the footing that the oral lease put forward by the plaintiffs is false. Whether the oral lease pleaded by the plaintiffs in all its terms is true or not, there is the admitted fact that throughout the plaintiffs proceeded on the footing that the defendant was a tenant and not a person merely having permissive possession. Even otherwise, as stated already, by the admission of receipt of rent for three faslis the tenancy has been converted into one of holding over.
6. In this view of the matter the possession of Balarami Reddi throughout the relevant period would be that of a tenant and the claim against him for the same could only be on the basis of rent. The Article of the Limitation Act applicable would therefore be Article no and as the rent became payable even according to the plaintiff on the 10th of February each year, the view of the Courts below that the rent for faslis 1347 to 1349 and 1350 was barred by limitation is correct.
7. Even assuming that Balarami Reddi was really in possession as a person who was in permissive possession of the land and was not a trespasser, an action against him is one for damages for use and occupation; in my opinion, such an action is governed by Article 115 and not by Article 120. We are now concerned in this case with an agricultural lease and all the provisions of the Transfer of Property Act are not strictly applicable to such leases. If Balarami Reddi did not pay rent for the three faslis 1338 to 1340 and was merely holding over after the expiry of the year 1928 he would be in the position of a tenant by sufferance; and if the landlord did not collect any rent from him he would not be a tenant holding over In England it is an established law that such a person is bound to pay a fair rent in respect of the land which continued to be in his possession on the basis of an implied contract. In Chengiah v. Umadai Rajah Raja Damara Kumara Thimma Mayanim Bahadur : (1910)20MLJ555 , Munro, J., had to consider the question. There was a difference of opinion between him and Abdur Rahim, J., on the question whether there was a cancellation of the lease or not but on the question which Article of the Limitation Act applied on the facts found by the learned Judges, Munro, J., was of the opinion that the plaintiff in the action was entitled only to compensation for use and occupation as the prior leases were validly cancelled. He had had to consider the further question whether a suit for recovery of damages for use and occupation was governed by Article 115 or some other Article. He was of the opinion that such an action was governed by Article 115, 2nd schedule of the Limitation Act. Abdur Rahim, J., held that it was a suit for rent as the lease was not determined and as the document was in writing registered, Article 116 and not Article no applied to the case. In Madar v. Kadir Mohideen I.L.R. (1914) Mad. 54, there are observations at page 56 of the report supporting the view that Article 115 and not Article 120 would be the proper Article applicable to such an action. On the facts of that case no doubt the question did not arise for express decision as the learned Judges were of the opinion that there was no relationship of landlord and tenant between the parties but only a relationship referable to their rights as co-owners and therefore Article 120 applied... In Govindaswami Filial v. Ramaswami Aiyar : (1916)30MLJ492 , Sadasiva Aiyar, J and Moore, J., had to consider the question whether a claim for damages for use and occupation from a tenant who continued in possession of the land after the expiry of the lease was a mere right to sue and was not transferable. The conclusion arrived at by the Jearned Judges was that it was a mere right to sue and was not assignable. Of course, so far as the claim is one for damages, whether it is one based on tort or based on contract, it makes no difference so far as the transferability of the right is concerned. In both the cases it would be a mere right to sue. The learned Judges were against extending the common law principle obtaining in England that after the expiry of the lease, the tenant was in the position of a tenant by sufferance as in their opinion after the Transfer of Property Act, there was no scope of such a distinction. That case, however, though it contains some observations which support the argument that it is not based upon an implied contract, does not help very much in the decision of the question whether in essence a claim for damages for use and occupation is one based on contract or sounds in tort. In Bibhuti Bhusan Sarcar v. Promoda Sundary Devy : AIR1939Cal468 , a single Judge of the Calcutta High Court took the view that Article 120 applied but the learned Judge did not give any reasons for his view and the basis of an action for damages for use and occupation by a person in permissive occupation of the land was not at all considered by the learned Judge. In Sukhdei v. Lachmi Narain 1946 A11. L.J. 305, Yorke, J., of the Allahabad High Court was of opinion that an action for damages for use and occupation was not one based upon any contractual liability but is really a suit for recovery of damages for breach of duty which is imposed by Section 108(a) of the Transfer of Property Act upon the lessee to surrender possession of the property after the expiry of the lease. For breach of this duty the landlord would be entitled, according to the learned Judge, to damages for use and occupation. As I said, the lease in this case is not one governed by the Transfer of Property Act and I doubt very much whether the neglect of the person to surrender possession gives rise to a claim for damages for use and occupation on the basis of a breach of duty. The liability is referrable in my judgment to possession and enjoyment of the property by the ex-tenant and according to the law in England by reason of the enjoyment of the property the law implies an obligation to pay compensation. In my opinion, it is not correct to say that the breach of a statutory duty is the basis for an action for damages for use and occupation. I respectfully dissent therefore with the view of the learned Judge in that case. In Manindra Chandra Pal Chowdhury v. Baramdi : AIR1940Cal400 also Article 120 was applied; but from the judgment it is not clear what exactly the facts were. The learned Judge himself states at page 400 (2nd column) that there was an implied contract and that that implied contract was to pay a reasonable rent. It would appear from the statement in the second column that defendants in that case were perfectly willing to pay reasonable rent. The only difficulty was as regards the amount upon which there was no agreement between the parties. Probably it was a case where the defendants even before the suit were ready and willing to pay damages for breach of the implied contract but they were not agreed as regards the amount. To such cases, the learned Judge holds that Article 115 would not apply and I respectfully agree with this conclusion. But in a case where there is no such promise by the person in occupation, the only action that could be maintained is an action for breach of an implied contract and for recovery of damages. I therefore think that this decision in Manindra Chandra Pal Chowdhnry v. Baramdi : AIR1940Cal400 does not support the contention of the appellants. The case, in my opinion, rather implies that the action for damages for use and occupation against a tenant who continues in possession after the expiry of the lease is really based on an implied contract.
8. If once it is established that the essence of an action for damages for use and occupation against a person who continues in possession as a tenant at sufferance is one based upon an implied contract and not either on tort or on a statutory obligation, the conclusion is irresistible that the only Article applicable to such an action is Article 115. In none of the cases that have been referred to, the real basis of the action was considered except perhaps the judgment of Sadasiva Aiyar, J., in Govindaswami Pillai v. Ramaswami Aiyar : (1916)30MLJ492 . The observation in Madar v. Kadir Mohideen I.L.R. (1914) Mad. 54 and the judgment of Munro, J., in Chengiah v. Umadai Rajah Raja Damara Kumara Tkimma Nayanim Bahadur I.L.R. (1914) Mad. 54 are directly in favour of the view that Article 115 applies. For all these reasons I am of opinion that even assuming that the action is one not for rent based on admitted tenancy but is one for damages for use and occupation the Article applicable would be Article 115 of the Limitation Act. In this view the claim in respect of fasli 1350 would not be barred by limitation. If Article 120 applies as contended by the appellants, the claim for all the faslis would be in time. But in the view I have taken of the pleadings in this case the decision of the Courts below that the claim for faslis 1344 to 1346 and 1350 is barred by limitation is correct.
9. The second appeals fail and are dismissed with costs; one set in S.A. No. 2029 and one set in S.A. Nos. 1695 and 1696.
10. Leave refused.