A tenant is not considered to be holding over within the meaning of Section 116 of the Transfer of Property Act if there is no agreement to the contrary and the landlord does not accept any rent after the expiry of the lease.

Ramratna Singh, J.

1. This appeal by the plaintiffs arises out of a suit for ejectment and for recovery of arrears of rent and damages, which was decreed in part by an Additional Subordinate Judge of Muzaffarpur.

2. The facts are admitted. An area of 14 kathas and odd with a dilapidated construction situated in the town of MUzaffarpur was given to the defendants under a registered deed of lease dated the 5th October 1942. The period of lease was extended through another registered deed of lease dated the 25th July 1946 for a period of five years from the 16th October 1945 to the 15th October 1950. The first deed was executed by the plaintiffs in favour of defendant No.1, Banke Bihari Lal, on a monthly rent of Rs.60/- only, The second lease was executed by the plaintiffs in favour of defendant No.2, son of Banke Bihari; and the monthly rent was Rs.90 only. The leases were for industrial purposes; and the defendants made some constructions and set up mills on the demised land for the purpose of their business. On the expiry of the second term, the plaintiffs, after service of a notice on the defendants to vacate the demised land and to remove the construction and the mills, made an application to the house Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for the eviction of the defendants. The house Controller granted the prayer of the plaintiffs; but the higher authorities constituted under the Act rejected the prayer, holding, that this Act did not apply to the lease of a vacant piece of land. Hence, the suit.

3. The plaintiffs alleged that the defendants were members of a joint Hindu family of which defendant No.1 was originally the karta and subsequently defendant No.2 became the karta; and the defendants were sued in their representative capacity. In addition to the claim for eviction, the plaintiffs claimed in Schedule II to the plaint arrears of rent from October 1950 at the rate of Rs.90 per month and compensation, from November 1950 to July 1954 at the rate of Rs.125 per month besides interest at 1 per cent per month.

4. The defendants asserted that they had acquired tenancy right under the Bihar Tenancy Act, it was further asserted that, though the joint family of the defendants consisted also of Musammat Lachhmi Devi and her three minor sons, they had not been impleaded in the suit; and, therefore, it was bad for defect of parties. It was then asserted that a civil suit did not lie after the decision under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The last plea was that the suit could not be maintained for want of notice either under the Bihar Tenancy Act or under the Transfer of Property Act.

5. The learned Additional Subordinate Judge dismissed the claim for ejectment on the ground that the defendants had been holding over after the expiry of the lease, in as much as the plaintiffs had assented to the defendants continuing in possession by their delay in taking action in going to court for ejectment of the defendants and by claiming rent for the whole of the month of October, 1959 in Schedule II to the plaint; and, therefore, in the absence of a notice under Sec.106 of the Transfer of Property Act, a suit for ejectment does not lie. He also found that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, are applicable to this tenancy and the civil court has no jurisdiction in the matter. He rejected, however, the plea of the defendants that the provisions of the Bihar Tenancy Act applied to this case. Lastly, he found that even if Lachhmi Devi and her sons were also interested in the business carried on the demised premises, the suit would not fail in as much as Baldeo (defendant No.1) represented the family. Ultimately, he allowed a decree for rent only in terms of the lease and refused the claim for ejectment, interest or compensation. Hence, the appeal.

6. In view of the decision in Smt. Jugal Kishori Devi V/s. Ashok M