Plaintiff held entitled to the right possessed by his father.

The first defendant who lost before the courts below has filed the present second appeal challenging the concurrent findings of the courts below.

2. The plaintiff and the first defendant are brothers. The 2nd defendant is a person who is claiming under the first defendant and he remained exparte throughout.

3. The suit property relates to about 2.93 acres of land which was originally owned by one Yovan s/o.Samuel. One Kunjan obtained a lease of 1.5 acres under Ex.A1 on 4.8.34 for a period of 6 years. He was holding over that land even after the lease period was over. Thereafter, by Ex.A2 Kunjan assigned his right on 8.11.50 in favour of one Chellayan Nadar, the father of the plaintiff and first defendant. The said Chellayan obtained a lease of the remaining portion of the land under Ex.A3 in the year 1949 from the heirs of Yovan for a period of 12 years. Thereafter, in the year 1957 under Ex.B3 the same heirs of Yovan mortgaged the entire properties to Neelu the wife of Chellayan. Thereafter the first defendant purchased from the heirs of Yovan under Ex.B1 dated 12.9.1959 the right of redemption of mortgage. Subsequent to that by Ex.B4 dated 19.7.61, the first defendant redeemed the mortgage from his mother Neelu.Ex.B10 is with respect to the entire property of approximately 3 acres. Chellayan Nadar died in the year 1984. Thereafter the plaintiff filed a suit for partition of this property.

4. The defendant took a plea that he having purchased the right of redemption of mortgage and subsequently having redeemed the mortgage,the entire ownership of the property vested on him and therefore at the time of death of Chellayan Nadar, there was no existing relationship of landlord and tenant between the first defendant and his father Chellayan Nadar. Therefore, the plaintiff has no partable right and hence the suit is not maintainable.

5. The trial court did not accept the contention of the plaintiff and decreed the suit as prayed for. The appeal filed against that was also dismissed and the present second appeal has been filed challenging the concurrent findings of the both the courts below.

6. Learned counsel for the appellant submitted that the lease of Chellayan Nadar having come to an end long prior to the date of his purchase and even the subsequent lease and mortgage made by the heirs of Yovan were also redeemed by the first defendant and since there was no relationship of landlord and tenant between the first defendant and his father Chellayan Nadar, the property is not liable for partition. In support of his contention, the learned counsel relies on the decision of the Supreme Court reported in R.V.BHUPAL PRASAD VS. STATE OF A.P.&OTHERS(1995 (5) SCC 698) wherein the Supreme Court has held in para-8 as follows:

"8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property act (7th Edn) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possessio