1955 Supreme(Cal) 98

HIGH COURT OF CALCUTTA
P. N. MUKHERJEE
RAM BARAI SINGH - Appellant
Versus
TIRTHA PADA MISRA - Respondent
A. F. A. D.  1205  Of  1953
Decided On : JUNE 01, 1955

The assent of the landlord, as required by Section 116 of the Transfer of Property Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances which would either directly establish such assent or lead to a reasonable inference of it.

Headnote:

TENANCY - HOLDING OVER - ASSENT OF LANDLORD - INFERENCE FROM CIRCUMSTANCES - LENGTH OF POSSESSION - PAYMENT OF RENT - ENTRY IN MUNICIPAL REGISTER - WITHHOLDING OF LANDLORD'S PAPERS - ADVERSE INFERENCE.

Fact of the Case:

Plaintiff brought a suit for declaration of title and recovery of possession of suit lands, claiming title through Mahadev, who was an original tenant under the admitted landlords. Mahadev continued in possession after the expiry of his fixed term lease, and upon his death, the tenancy devolved on his heirs Ajodhya and Kalika who continued in possession till October 20, 1944, when it was sold to the plaintiff. The suit was contested by defendant No. 2, who claimed title as a tenant under the landlords, alleging that Mahadev had vacated the suit lands upon the expiry of his lease and that the landlords had settled the same with him. The Courts below decreed the suit, holding that Mahadev continued in possession after the expiry of his lease with the assent of the landlords and thus became a tenant by holding over under Section 116 of the Transfer of Property Act.

Finding of the Court:

The Courts below concurrently found that Mahadev continued in possession after the expiry of his fixed term lease of five years from 1334 to 1338 B. S. till his death in or about 1941-42; that, thereafter, his heirs Ajodhya and Kalika remained in occupation till October 20, 1944 when they sold the suit lands with the structures thereon to the present plaintiff. They also concurrently found that the story of the landlords' taking khas possession, or their settlement with defendant No. 2 has not been proved. They further recorded a finding that Mahadev's continuing in possession after the expiry of his original lease from 1334 to 1338 B. S. was fully known to the landlords Bejoy Kumar Banerjee and others and he (Mahadev) actually continued in such possession for about ten years till his death in 1941-42. In these circumstances, the Courts below have held that the reasonable inference would be that Mahadev continued in occupation after the expiry of his lease with the assent of the landlords and thus became a tenant by holding over under Section 116 of the Transfer of Property Act and this interest was heritable and transferable and thus gave title to his heirs upon his death and to the plaintiff under his kobala of 1944.

Issues: 1. Whether the original tenant Mahadev continued in possession after the expiry of his fixed term lease with the assent of the landlords and thus became a tenant by holding over under Section 116 of the Transfer of Property Act? 2. Whether the tenancy by holding over was heritable and transferable?

Ratio Decidendi: 1. The assent of the landlord, as required by Section 116 of the Transfer of Property Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances which would either directly establish such assent or lead to a reasonable inference of it. 2. Mere continuance of possession after the expiry of determination of his lease would not entitled the tenant to claim a tenancy by holding over. Mere continuance of possession without more would not be sufficient for the purpose. There must also be the landlord's assent to such possession by acceptance of rent or otherwise. 3. The length of the tenant's possession may have this importance that when it is pretty long, slight evidence circumstantial or otherwise, may be sufficient to tilt the balance in favour of the landlord's assent. 4. If the landlord neither assents, which rules out both express and implied assent, that is, even circumstances from which assent may be presumed or inferred, nor dissents, the requisites of holding over are not satisfied.

Final Decision: Appeal dismissed.