A tenant holding over after the expiry of the lease becomes a trespasser if the tenancy is not renewed.

( 1 ) IN 1907, the suit property, premises No. 6, Kanulal Lane belonged to one Goswamini Shree Radha Vahuji Maharaj and one Shree Giridharilalji Maharaj jointly having undivided half share each therein. Radha Vahuji by a registered deed of lease dated 9-10-1907 leased out her half undivided share in the said property to one Gordhandas Poddar for 51 years from 1-9-1907.

( 2 ) BY two separate registered deeds of lease dated 9-10-1907 and 19-12-1908 respectively, Giridharilalji also leased out his undivided half share in the said premises to the same Gordhandas Poddar for 51 years from 1-9-1907. Thus Gordhandas became the lessee in respect of the entire premises No. 6, Kanulal Lane. Giridharilalji died on 6-12-1908 leaving his last will and testament whereby he appointed his wife Sm. Krishna Priya as the executrix. Probate of this will was duly obtained on 7-3-1973. Pursuant to the authority given under the said will, Krishna Priya adopted Govardhaneshji on 14-12-1946. Krishna Priya died thereafter and Govardhaneshji became the co-owner of the undivided half share in the suit property. The other undivided half share of the property of Radha Vahuji devolved on one Brojobhusan and one Mahaluxmi jointly and they became the joint co-owners of the other undivided half share.

( 3 ) THE lease granted by Giridharilalji expired by efflux of time on 31-8-58. There was an option for renewal for 5 years and the option was exercised and the tenant remained in possession. The option period expired by efflux of time on 31-8-63. In the meantime, the original tenant Gordhandas died, on 3-10-62 the heir and legal representative of the deceased tenant. Gordhandas, the present defendant Purushottam, sent a cheque on account of 12 months rent from October 1962 to September 1963 which was received by Goverdhaneshji (hereinafter referred to as the original plaintiff ). On 21-8.-63, the original plaintiff, through his soliciter Messrs. Nanavati and Co. served a notice of ejectment on the defendant and by a money order dated 30-8-63, sent back the rent for the month of September, 1963. The defendant refused to accept the said money order.

( 4 ) IN the meantime, the original plaintiff executed two powers of Attorney in favour of one Mathuradas Chaturbhuj Sha and one Radha Krishna Kothari

respectively for execution and registration of a deed of partition in respect of the suit premises. It is the plaintiff's case that on 28-7-1970, the property in suit was partitioned mutually between the co-owners by a Deed of Partition duly executed and registered a notional partition was effected by demarcation on a plan annexed to the deed. Actual physical partition was not possible as the defendant was in possession. According to the original plaintiff, he became the absolute owner of the divided eastern portion of the suit property. The defendant had obtained a fresh lease for 25 years from the other co-sharer on 2-7-68 in respect of other undivided half share. According to the plaintiff the lease granted by the other co-sharers in favour of the defendant has shifted to their divided western portion due to the partition.

( 5 ) IN May 1973, the present suit was instituted by the original plaintiff against the defendant treating him as a trespasser and claiming recovery of possession of his divided eastern portion of the suit property and mesne profit.

( 6 ) IN the written statement filed by the defendant, the alleged partition of the property on 28-7-1970 was denied and disputed and it was alleged that the suit was bad for non-joinder of the other co-owners of the property. It was further alleged that a monthly tenancy in respect of the undivided half share of the plaintiff in the suit property was created due to payment of rent and acceptance of the same by the original plaintiff on the expiry of the lease on 31-8-63 for 5 years from 1-9-58 to 31-8-1963 as no fresh deed of lease was executed or registered for the option period.

( 7 ) IT