1. It has been proved to the satisfaction of the Courts below that the contesting defendants 3 to 5 executed a lease deed Ex. A in favour of the plaintiff's father in 1906 for a period of three years. There is also abundant evidence that the defendants have been in possession since then up to the date of suit; and there is no evidence to suggest that the defendants were ever out of possession. There is also no evidence that the defendants ever paid any rent either to the appellant or to the plaintiff's father and his brothers. The trial Court found on these facts that as it must be presumed that defendants 3 to 5 continued in possession as tenants of the plaintiff, the possession remained with the plaintiff, at any rate until 1923, when the plaintiff brought a suit on a lease deed which was found to be not genuine. It therefore decreed the suit in the plaintiff's favour. In appeal it was held that the plaintiff had not been in possession within twelve years and that the suit had there, fore to fail. Unfortunately the question whether the possession of the defendants' was a possession by virtue of the relation, ship of landlord and tenant existing between them was not properly discussed by the lower Appellate Court and so this second appeal has been filed against the decree of the lower Appellate Court dismissing the plaintiff's suit. The plaintiff has brought this suit on his title, and ordinarily he would have to prove possession within twelve years of suit. Admittedly he has not proved physical possession and the only question that arises here is whether he was in possession within twelve years of suit by virtue of the relationship of landlord and tenant existing between the plaintiff and defendants 3 to 5. It is argued that the fact that the defendants continued in possession of the property after the expiry of the lease Ex. A shows that they must have continued as tenants holding over, that the burden is upon the defendants to show when that tenancy was determined, and that a suit brought within twelve years of the determination of the tenancy would have to be decreed.
2. It is contended that the defendants are estopped from denying the title of the plaintiff as they have never given up possession to the plaintiff. Section 116, Evidence Act, does not go so far as to require that. That section only estops a tenant from disputing his landlord's title during the continuance of the tendency. It has however been held in two cases, Mujibar Rahman v. Isuh Surati : AIR1928Cal546 and Bhaiganti Bewa v. Himmat Bidyakar (1917) that estoppel continues even after the expiration of the period of the lease, unless the tenant has openly surrendered possession or has at least given notice to his landlord that he claims under his own title. There is no evidence in this case either to show that the tenant did deny the landlord's title soon after 1909 or that he did not; but Article 139, Lim. Act, bars any suit to recover possession from the tenant after the expiration of twelve years from the date when the tenancy is determined. This has been laid down by Venkatasubba Rao J. in Sudalaimuthu Thavan v. Sappani Thevar : AIR1925Mad446 following older cases; but the argument of the learned Counsel for the appellant is that it must be presumed that defendants 3 to 5 continued as tenants even after 1909. I can find no reason why I should presume this. There is no evidence that the defendants paid rent, nor is there any evidence that the plaintiff assented to the possession of the defendants after 1909 or that the defendants accepted the title of the landlord. Undoubtedly, if there had been any evidence at all that at any time after 1909 the defendants 3 to 5 had paid rent to the plaintiff's father or to the plaintiff or to defendants 1 and 2, then there would be positive evidence that in the year in which that rent was paid the relationship of landlord and tenant existed, and then the burden would be on defendants 3 to 5 to prove when that relationship ceased; but where there is no evidence at all that rent was at any time paid, there is no reason at all to believe that there was any relationship of landlord and tenant after 1909. Where a question of limitation is involved, the burden is on the defendants to prove when the tenancy was determined; but they have done so in this case by reference to Ex, A itself, which shows that the tenancy that the plaintiff relied on ceased in 1909. If any tenancy arose after 1909, the plaintiff would have to prove it. If they could do so, then the defendants will have to prove when that tenancy was determined.
3. The learned Advocate for the appellant, while conceding that the plaintiff has to prove a tenancy, either by evidence or by implication of law, complains that the plaintiff was not afforded an opportunity of letting in the necessary evidence, as no issue was framed in the trial Court regarding the date on which the tenancy was determined; and the Appellate Court gave that matter no consideration at all. This is due to the fact that the plaintiff's case in the trial Court differed from the case argued here in second appeal. The plaintiff did not say in his plaint that the defendants, after the expiry of the lease in 1909, were holding over from year to year; but on the contrary that the defendants had executed leases from time to time in favour of the plaintiff's father and his successors and were paying rent on those leases. That case the plaintiff failed to prove; and he did not assert in his plaint that the relationship between the plaintiff's father and the defendants was that of landlord and tenant holding over after the expiration of the lease. I cannot see therefore that the plaintiff has any cause for complaint with regard to the issues framed in the trial Court. The second appeal is accordingly dismissed with costs. Leave to appeal is refused.