JUDGMENT
S. Padmanabhan, J.
1. Plaintiff is the appellant in the second appeal. His suit for declaration of tenancy right and injunction was allowed by the trial Court, but dismissed by the appellate Court.
2. The entire ground floor, first floor and eight rooms in the second floor of a three storied building was taken on rent by the appellant from the prior owner for running a hotel and lodge. After respondent purchased the building he attorned to him and was paying rent at the rate of Rs. 500/- per month. Even before the purchase made by
the respondent, there was huge arrears of rent. The sale deed authorised the respondent to collect the same. On the ground that there was arrears of rent, the respondent obtained an order for eviction against the appellant in R.C.O.P. 7 of 1967 from the Rent Control Court, Muvattupuzha, For about seven years the order was not executed and the respondent continued to receive whatever payments made by the appellant towards rent. When the respondent filed execution petition in 1975 the appellant resisted the same by contending that the order for eviction was discharged by payment of the arrears of rent and superseded by a fresh agreement to continue in possession as a tenant on payment of monthly rent of Rs. 500/-. He also pleaded that as requested by the respondent he surrendered two rooms on the second floor for being let out to another tenant and from 1-1-1974 the rent was reduced to Rs. 350/- per month. His further claim was that he continued payment of Rs. 350/- and the respondent received the same. On the basis of the fresh arrangement and the fresh tenancy alleged by him the appellant pleaded that the eviction order cannot be executed. The execution Court by original of Ext. A1 order and the revisional Court by original of Ext. A2 order rejected the contention observing that the remedy of the appellant is only by way of filing a fresh suit,
3. It was therefore that the appellant filed O.S. 301 of 1976 before the Munsiffs Court. Muvattupuzha for a declaration of his tenancy right on the basis of the new rent arrangement and for injunction restraining eviction on the basis of the order passed by the Rent Control Court. The claim was resisted by the respondent who denied the alleged lease arrangement. He contended that he only received whatever amounts were paid towards arrears and that he was only obliging the appellant by giving some time since the hotel business was being run in the building. On the evidence, the trial Court accepted the case of the appellant and decreed the suit. The appellate Court disagreed with the trial Court and dismissed the suit.
4. On the factual finding of the appellate Court negativing the new lease arrangement
dt. 1-1-1974, I do not think that there is any scope for interference in second appeal. The finding of the trial Court in this respect was evidently perverse in relation to the evidence. The appellate Court assessed the evidence properly and arrived at the conclusion that the new lease arrangement pleaded is only a myth. The rent agreed to be paid to the original landlord was Rs. 4007-per month. It is admitted that when the building was purchased by the respondent the appellant attorned to him and agreed to pay rent at the rate of Rs. 500/- per month. Of course he added that there was an oral agreement to provide some additional amenities. The eviction petition was filed in 1967 alleging that the rent is Rs. 500/- per month and there was huge arrears. The order for eviction is dt. 16-3-1968. Taking advantage of an omission in the order to specify the rate of rent and the exact arrears, the present contention is that the fresh arrangement entered into after the eviction order on payment of the entire arrears was for a monthly rent of Rs. 500/-. It is said that thereafter on 1-1-1974 a fresh arrangement was entered into reducing the rent to Rs. 3507- when two rooms in the second floor were surrendered at the instance of the respondent in order to provide additional accommodation to the Federal Bank to which some other portions in the second floor were rented out.
5. Beyond the plaintiff-appellant the only other witness examined by him was P.W. 2, the Branch Manager of the Federal Bank. The new rent arrangement and reduction of rent were alleged to be in his presence. But he did not support the appellant in this respect. Even the alleged surrender of two rooms by the appellant was denied by the respondent who contended that additional space was provided to the Federal Bank with the available vacant space by shifting the corridor. In this respect also the evidence of P.W. 2 was not available in support of the case of the appellant. On the question of reduction of rent also the appellant could not get full support from P.W. 2 who was alleged to be present at that time. For valid reasons the accounts produced by the appellant was not accepted by the appellate Court. There was no entry in the accounts that arrears of rent was paid and the order for eviction was discharged. Though the appellant claimed
that he obtained a document from the respondent evidencing payment of arrears and discharge of the eviction order, that document was also not produced in Court. On the factual allegation there was only the sole testimony of the appellant controverted by the deposition of the respondent, For this and other reasons the appellate Court rejected the self-serving evidence of the appellant and found that the discharge of the eviction order is not correct and the new rent arrangement is only a myth. No substantial question of law is involved in the appreciation of evidence and the factual findings arrived at by the appellate Court.
6. The only substantial question of law that has to be considered is whether receipt of rent from time to time after the eviction order coupled with the long delay in filing the execution application could be accepted as evidence of creation of a new tenancy. Payments were made after the eviction order at the rates of Rs. 400/-, Rs. 500/- and Rs. 350/- and their multiples. These payments are admitted also. The case of the respondent is that in view of the fact that a running hotel business was there he delayed execution to afford convenience to the appellant for vacating and meanwhile received whatever payments were made towards arrears due to him. There is absolutely nothing to indicate that this explanation is incorrect.
7. Section 116, Transfer of Property Act, dealing with the effect of “holding over” provides that if a lessee or under-lessee remains in possession after determination of the lease and the lessor or his legal representative accepts rent or otherwise assents to his continuing in possession, in the absence of an agreement to the contrary, the lease is renewed from year to year or month to month according to the purpose for which [he property is leased as specified in Section 106. The tenancy created by holding over is a new tenancy in law by implication even though many of the terms of the old lease may continue in it. But in order to create a new tenancy there must be a bilateral act. What Section 116, T.P. Act, contemplates is that there should be an offer to take a renewed or fresh lease evidenced by the lessee’s continuing in possession and the definite assent of the landlord evidenced by receipt of rent or
otherwise. If it is by acceptance of rent it must be as such and in clear recognition of the tenancy. Acceptance of rent unless explained on any other hypothesis may be evidence of assent depending upon the facts and circumstances of each case, but it is not the only evidence or basis. Each case will depend on its merits in that respect. Where the contract of tenancy has expired but the tenant continues in possession by way of statutory protection, it cannot be said to be an offer on the part of the tenant to take a renewed or fresh lease simply by continuing in possession. In such a case while the statutory tenancy continues, acceptance of rent by landlord by itself will not afford ground of holding that he assented to a new tenancy. The position is not different even when a petition for eviction has been allowed by the Rent Control Court. Rent Control Legislations in some other State provide that though a person continuing in possession after determination of the tenancy also may come within the meaning of tenant, a person against whom an order for eviction was passed will not come within the definition of tenant. But Section 2(6), Kerala Rent Control Act, 1965, defines tenant as including a person continuing in possession after determination of the tenancy in his favour. There is no provision that a tenant will not include one against whom an order for eviction has been made. Therefore it must be held that even after an order for eviction the position of the tenant is the same and the statutory tenancy will continue. The statutory tenancy is not determined by the order for eviction alone. He will be continuing to hold the building under the old terms and conditions. In a case where eviction petition is dismissed there is Section 11(15). In cases where eviction is allowed also the tenancy must be deemed to have continued under the old terms and conditions till the tenant is actually evicted from the holding. Mere acceptance of amounts equivalent to rent by the landlord from such a tenant, who continues in possession as a statutory tenant after the lease has been determined cannot be regarded as evidence of a new agreement of tenancy. As per fiction of law he is entitled to continue in possession on the same terms and conditions and he is bound to pay rent. The landlord is entitled to receive the same. In such a case it will be for the tenant to
establish that the payment and receipt were not as statutory tenant, but as legal rent indicating assent. In such a situation the mere payment and acceptance of rent by themselves cannot be taken as evidence of a new lease arrangement. There must be independent evidence of assent on the part of the lessee showing that the landlord has assented. These positions are well established and if at all any authorities are necessary they could be had from the decisions in Kai Khushroo v. Bai Jerbai, AIR 1939 FC 124; Gooderham & Worts Ltd. v. C. Rule Corporation, AIR 1939 PC 90; Ram Berai Singh v. Tirtha Pada Misra, AIR 1957 Cal 173; Ganga Dutt v. Kartik Chandra Das, AIR 1961 SC 1067; Vasu v. Kallianikutty Amma, 1982 Ker LJ 36 : (AIR 1982 Ker 111); Bhawanji v. Himatlal, AIR 1972 SC 819 and Sardari Lal Vishwa Nath v. Pritam Singh, AIR 1978 SC 1518.
8. In this case the eviction petition was allowed. Even then till actual eviction the tenant is entitled to continue in possession. During that period by fiction of law his possession is that of a statutory tenant. He is bound to pay rent and the landlord is entitled to receive the same. In such a situation, payment and receipt of rent alone are not sufficient to create a new tenancy. The order for eviction cannot stand discharged on account of such a situation alone. If such a position is accepted any tenant could defeat the order for eviction by raising such a contention. That will be opening floodgate to the tenants enabling them to deny the fruits of litigation to the landlords.
9. If so, the only remaining question is whether the delay in filing the execution petition could be taken as a ground to accept the plea that there was consent of the landlord in renewing the lease. Section 14, Rent Control Act, 1965, provides that the order shall be executed by the Munsiff as if it is a decree passed by him. The words “as if creates a legal fiction by which an order has to be considered as a decree even though it is not a decree. This deeming provision is introduced in order to create an artificial conception that the eviction order is a decree. The Court is therefore bound to treat the order as a decree for all intents and purposes. An order will have all the legal texture, attributes and sanctity of a decree
passed by a Civil Court. Not only the provisions of the Code of Civil Procedure relating to execution of decrees and orders but also the provisions of Article 136, Limitation Act, prescribing the period of limitation for execution of decrees are applicable. If so, the order could be executed within a period of 12 years. The mere fact that the respondent waited for 7 years, especially in view of his acceptable explanation cannot be taken as a circumstance indicating that by consent the order for eviction was discharged and a new tenancy was created.
10. One other contention was also raised by the counsel for the respondent. Order XXI, Rule 2, Civil P.C. says that where any money payable under a decree is paid out of Court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. The judgment-debtor also can apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment which has not been certified or recorded as aforesaid shall be recognised by any Court executing a decree. The contention is that the alleged adjustment has not been recorded and certified and therefore the appellant cannot be heard to contend that there was such an adjustment. But this argument cannot be accepted. What is pleaded in this case is not payment or adjustment of the order for eviction. The contention is that by a fresh agreement subsequent to the order for eviction, the same has been superseded and a new tenancy has been created. If so, in such a case Order XXI, Rule 2 will not come into play. So also the argument of the respondent that there is the bar under Section 47, Civil P.C. also cannot stand. What Section 47 of the Code says is only that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The bar under Section 47 will arise only if the dispute in question relates to execution, discharge or satisfaction of the decree. What is pleaded is that the order is superseded by a
subsequent agreement between the parties and therefore it is not executable. Such a dispute cannot be said to relate to execution, discharge or satisfaction of the decree. Therefore, the bar under Section 47 in filing a separate suit will not apply to this case.
For the reasons already discussed above, the second appeal is without any merit and it is hereby dismissed with costs.