Case: NAND RAM (D) THROUGH LRS. &amp; ORS Vs. JAGDISH PRASAD (D) THROUGH LRS

the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latters title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance. 43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlords title and his (tenants) liability to pay mesne profits for the use and occupation of the property. 44. T o sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to- month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside. 40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious. 41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]27. Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of non- payment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendants claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.