JUDGMENT
Dutta, J.
1. This appeal by the plaintiff arises out of a suit for ejectment and for recovery of arrears of rent as well as damages. The suit lands, as described in the schedule attached to the plaint, comprises a number of plots appertaining to villages Aiwan’ and Abgilla having an area of 12 bighas 10 kathas 13 dhurs and odd. According to the plaintiff’s case, these lands were acquired under the Land Acquisition Act for the District Board, Gaya, and are meant for road side and side cutting land of the Gaya-Gopalganj Road. These were subsequently settled with the defendant for the purpose of cultivation under a registered deed of lease dated the 31st May, 1932, executed by the then Chairman of the District Board. The settlement was made for a period of five years on an annual rental of Rs. 3/- per bigha, payable according to the English Calendar year, the total rent being Rs. 37/8/- per year. Under the terms of this lease, the lessor was entitled to determine the lease whenever the lands would be required by the District Board, after giving three months’ notice to the lessee. The defendant duly came into possession of the lands by virtue of this settlement and after the expiry of the period of the lease in the year 1937, he was allowed to continue in possession over the lease-hold property from year to year in each successive year on the same terms as before.
Subsequently, as the lands were required by the plaintiff and also because the defendant had defaulted in payment of rent, a notice was issued by the plaintiff to the defendant on 14-5-1953 demanding arrears of rent amounting to Rs. 114/12/- and also calling upon the defendant to vacate possession of the lands within three months from the date of the receipt of the notice. The defendant thereon sent a reply dated 1-9-1953 claiming to have acquired occupancy rights in the lands in question by adverse possession and refused to vacate the same.
It was further alleged by the plaintiff that as the value of the land with respect to which the aforesaid lease was executed in the year 1932, was more than Rs. 500/-, the Chairman of the District Board was not empowered to make any such settlement in view of the provisions of Rules 93, 94 and 103 framed by the State Government by virtue of powers vested under Section 138 of the Bihar and Orissa Local Self-Government Act. The aforesaid lease was in consequence void ab initio and the defendant’s possession from the very inception was that of a trespasser and he could not have acquired any tenancy right in the lands in question. It was further alleged that in any view of the matter as the defendant had asserted independent and hostile rights in his reply dated 1-9-1953, he had forfeited all his rights to continue in possession as a lessee or tenant holding over from year to year after the expiry of the period of the aforesaid lease. On these allegations, the plaintiff prayed for a decree for eviction of the defendant from the lands in suit and for delivery of possession of the same to the plaintiff and also made a further claim for recovery of a sum of Rs. 225/- on account of arrears of rent for a period of six years, namely, 1953-54 to 1958-59 at the rate of Rs. 37/8/-per year besides a further amount of Rs. 30/- as interest thereon and a further sum of Rs. 2190/- as damages at the rate of Re. 1/- per day from 2-2-1954 to 2-2-1960, the total amount claimed being Rs. 2445/-. It may be mentioned here that the suit was initially filed in the Court of Munsif 1st Court, Gaya, on 15-2-1960, but the plaint was returned by that Court on 23-4-1960 and was thereafter refiled on that very day in the Court of Munsif, 2nd Court, Gaya.
2. According to the case of the defendant as made out in the written statement, the lands in suit had been acquired by the District Board partly by virtue of gift made by the Tekari Raj and partly under the provisions of the Land Acquisition Act. It appears, however, from the judgments of both the Courts below that this plea about acquisition of a part of the lands by virtue of gift made by the Tekari Raj was given up in the trial Court as well as in the lower appellate Court and it was conceded that the entire lands had been acquired on behalf of the District Board by virtue of the provisions of the Land Acquisition Act.
The case of the defendant further was that although the lands were originally acquired for the purpose of construction of a portion of Gaya-Gopalganj Road and a part of the road and some bridges were thereafter actually constructed thereon, these were all washed away by floods. Hence these lands were considered to be unfit for the aforesaid purposes and some other lands were thereafter acquired and the road was diverted through those lands. Since after that the suit lands ceased to have the character of being part of any road and road side land and side cutting land and were lying parti. Subsequently, these lands were settled with the defendant for agricultural purposes under the registered deed dated 31-5-1932, referred to above, on the distinct understanding that the District Board would not evict the defendant unless the lands were required by the District Board for being used as road or road side land. The defendant’s case further was that the aforesaid registered deed was a valid document and having come into possession of the lands as a raiyat, he acquired the status of an occupancy raiyat with respect to these lands by virtue of the provisions of the Bihar Tenancy Act. It was contended that, as such, the plaintiff was not entitled to evict him from the lands in question. The defendant further expressed his willingness to pay the arrears of rent due from him which, according to him had not been accepted by the plaintiff in spite of his offer to pay the same. The claim for damages was challenged as being not maintainable at all and the defendant further took a plea of the suit being barred by limitation.
3. Both the trial Court and the lower appellate Court have come to the concurrent finding that the lands in suit do not constitute road side and side cutting land appertaining to Gaya-Gopalganj road and they have accordingly held that the provisions of Article 146-A of the Limitation Act which provide for a period of limitation of 30 years with respect to suits by or on behalf of any local authority for possession of any public street or road or any part thereof are not applicable in this case. The Courts below have further held that the registered lease of the year 1932, which was executed on behalf of the plaintiff in favour of the defendant with respect to the lands in suit, was void as it violated the provisions of Rules 93, 94 and 103 of the rules framed by the Government of Bihar under Section 138 of the Bihar and Orissa Local Self-Government Act snd as would appear from the judgments of the Courts below, this position was conceded on behalf of the defendant also at the time of the hearing of the suit as well as the first appeal. The Courts below accordingly came to the finding that the possession of the defendant was that of a trespasser since the time he came in possession by virtue of the lease dated 31-5-1932.
The trial Court further came to the finding that having been in possession of the lands for more than 12 years, the defendant acquired a valid right as lessee by proscription and, as such, he could not be evicted from these lands. The lower appellate Court held that the defendant’s contention about having acquired occupancy right could not be upheld in view of the provisions of Section 116 of the Bihar Tenancy Act whereby acquisition of such right is barred so far as the lands acquired under the Land Acquisition Act are concerned. The lower appellate Court, however, agreed with the finding of the trial Court that the defendant could not be evicted from the land as he had been in possession thereof for more than 12 years. The plaintiff’s claim for eviction was accordingly disallowed by both the Courts below. As for the claim for arrears of rent and damages, the trial Court held that the plaintiff was entitled to a decree for recovery of rent for a period of six years immediately before the suit and allowed the plaintiff a decree for Rs. 225/- only on account of rent for the period 1953-54 to 1959-60 at the rate of Rs. 37/8/- per year. The claim for damages as made by the plaintiff was disallowed. The lower appellate Court has affirmed the finding of the trial Court on these points. In accordance with the findings as mentioned above, the suit was decreed by the trial Court in part by allowing a decree only for arrears of rent for the amount mentioned above and the appeal preferred by the plaintiff was dismissed by the lower appellate Court. The present appeal has thereon been preferred by the plaintiff.
4. The finding of the Courts below that the lands in suit do not constitute part of road side or side cutting land appertaining to the Gaya-Gopalganj Road is a finding of fact which has been arrived at on due consideration of the evidence as adduced by the parties and, as such, this finding was not challenged before us at the time of hearing of this appeal. It is thus manifest that the provisions of Article 146-A of the Limitation Act are not applicable to this case as held by the courts below.
5. As already mentioned, the fact that the registered lease dated 31-5-1962 by virtue of which the defendant was inducted on the lands in suit was void as being in violation of Rules 93, 94 and 105 as framed by the State Government in accordance with the provisions of the Local Self-Government Act was conceded by the defendant in both the courts below and the correctness of the finding of the courts below on this point also was not challenged before us. It follows, therefore, that the defendant could not have acquired any right whatsoever in the lands in suit by virtue of this document.
6. The next question that has to be determined in this connection is as to whether the defendant has acquired any right in the lands in suit by being in possession thereof since the year 1932 when the aforesaid void lease was executed in his favour and, if so, what is the nature and extent of his rights.
The case as made out by the defendant in his written statement is that he is in occupation of the lands as a raiyat ever since the time he came into possession thereof as a result of the execution of the aforesaid registered deed of lease in the year 1932 and he has acquired the right of occupancy therein by virtue of the provisions of the Bihar Tenancy Act on account of being in possession of the lands as a raiyat. This claim about acquisition of occupancy right in the lands is, as held by the lower appellate Court, quite untenable, in view of the provisions of Section 116 of the Bihar Tenancy Act which runs as follows:
“Nothing in Chapter V shall confer a right of occupancy in, and nothing in Chapter VI apply to lands acquired under the Land Acquisition Act, 1894 (Act 1 of 1894) for the Government or for any local authority or for a Railway Company, or lands belonging to the Government within a Cantonment, while such lands remain the property of the Government or of any local authority or Railway Company ”
As it is admitted that all the lands in suit were acquired for the plaintiff, that is, the District Board, Gaya, under the provisions of the Land Acquisition Act, it is manifest that the defendant was debarred by the aforesaid provisions from acquisition of any occupancy right with respect to these lands in accordance with the provisions of Chapter V of the B.T. Act. Hence even if the defendant’s contention that he was in occupation of the lands as a raiyat be accepted as correct, his claim about acquisition of occupancy right therein must fail in view of the specific provisions incorporated in Section 116 of the Bihar Tenancy Act and the lower appellate Court has thus arrived at a correct finding so far as this point is concerned.
7. Learned counsel for the respondent, however, contended that even if the defendant has not acquired any right of occupancy as claimed by him, he has acquired by prescription a right of permanent tenancy with respect to these lands by occupying the lands in this capacity and by paying rent to the plaintiff in this capacity for a period of over 12 years since the year 1932. Neither the trial Court nor the lower appellate Court entered into the question as to whether the defendant has acquired any right of permanent tenancy in these lands by prescription and it appears that no such point was canvassed in those courts. The trial Court has held the plaintiff’s claim for ejectment to be barred under the provisions of Article 144 of the Limitation Act merely on the finding that the defendant has acquired a valid right as a lessee by prescription for 12 years, without any consideration as to what is the nature and duration of the right, if any, acquired by the defendant as a lessee. The lower appellate Court while rejecting the defendant’s contention about having acquired occupancy right has not entered into the question as to what is the nature of his rights acquired by him in these lands and has dismissed the claim for ejectment as being barred under Article 144 of the Limitation Act. As the registered lease in favour of the defendant was a void document, the defendant must be held to have acquired no right whatsoever in the lands in question by virtue of this document and thus his possession thereof was that of a trespasser at the time he came into possession under this void lease. Had the defendant continued in possession of the lands as a mere trespasser by claiming and asserting absolute rights therein openly and to the knowledge of the plaintiff, he would have acquired by prescription absolute rights in the lands in question by continued possession for 12 years and any suit by the plaintiff for ejectment of the defendant instituted after such period of 12 years would have been barred by limitation under Article 144 of the Limitation Act.
The defendant, however, did not claim to have acquired any such absolute right in the property, but merely claims to have acquired a limited right, namely, a right of permanent tenancy in these lands. Hence, the material point for determination in this case is whether the defendant has acquired any tenancy right in these lands and, if so, what is the nature and duration of such a tenancy, as in such a case the plaintiff’s right to eject him will depend upon the nature and duration of the tenancy and as to whether the tenancy has come to an end. The period of limitation in such a case will have to be computed not from the date when the defendant initially entered into possession of the lands in the year 1932, but from the time when the plaintiff became entitled to khas possession of the lands as a result of the termination of the tenancy itself.
8. Before proceeding to discuss these matters, it would, be convenient to refer to another contention of learned counsel for the appellant, namely, that in any view of the matter, the plaintiff’s claim cannot be resisted with respect to a part of the lands in suit as the defendant never came into possession of the same. No such plea about the defendant being not in possession of any portion of the lands in suit was taken before the courts below and the submissions to this effect have been made merely on basis of a statement made by D.W. 1 Harihar Charan, elder brother of the defendant, during his examination-in-chief in the trial Court to the effect that out of the disputed lands, only 5 bighas had been cultivated and the remaining 7 bighas were lying fallow and that it was difficult to arrange for the money and labour, which was necessary for bringing those 7 bighas under cultivation. It was contended on behalf of the appellant that a person in the position of a trespasser can acquire right by prescription only with respect to the area in his actual possession and he cannot be deemed to be in constructive possession of any land which remains parti and such parti lands must be deemed to continue in possession of the actual owner. In this connection, reliance was placed by learned counsed for the appellant on the following observations made by this Court in the case of Hari Prasad Agarwala v. Abdul Haq, AIR 1951 Pat 160:
“The doctrine of constructive possession of the entire lands in the leasehold by proving possession of a part can be pressed in aid by a person who has the legal title vested in him in the leasehold. If his lease is invalid, because it is not in accordance with the provisions of the law, then he cannot be held to be in possession of the entire leasehold by showing that he was in possession of a portion of it. A person in possession under an invalid lease is a mere trespasser and it is well settled that a trespasser cannot invoke the aid of the principle of constructive possession. The possession of a trespasser is limited to the lands which are actually in his physical possession.” (Page 163).
It appears, however, that In the case to which this decision relates, the defendants had alleged that the plaintiffs had never come into actual possession of the village in suit and the lease, which was with respect to several villages, was alleged to be invalid as it had not been executed in accordance with the provisions of Section 107 of the Transfer of Property Act. These contentions were found to be correct by the lower appellate Court, but it was urged on behalf of the plaintiffs that as they had been able to prove that they had come into actual possession of one of the seven villages covered by the lease, they must be deemed to have come into constructive possession of the village in suit also. It was in these circumstances that it was held that a trespasser could not invoke the principle of constructive possession for claiming lands which had not come into his actual possession.
In the present case, however, it was never the case of the plaintiff either in the trial Court or in the lower appellate Court that the defendant had not come in possession of the entire lands covered by the lease in his favour and, on the contrary, the plaintiff challenged the defendant’s possession over the entire lands as being illegal and prayed for a decree for recovery of possession with respect to the entire area. It is also significant that in the notice dated 14-5-1953 which was issued on behalf of the plaintiff, the defendant was called upon to give up possession of the entire leasehold property and in this notice also there is no mention about any portion of the lands being not in possession of the defendant on account of its being parti. It is further admitted that according to the terms of the aforesaid lease of the year 1932, the defendant was to pay a rent of Rs. 3/-per bigha and the total rent of Rs. 37/8/-was payable for the entire area of 12 bighas 10 kathas and odd. The fact that the rent of Rs. 37/8/- payable for the entire area had been actually paid by the defendant and accepted by the plaintiff for the entire period of the aforesaid lease as well as for a number of years thereafter is also admitted by the plaintiff himself. The claim for arrears of rent as made by the plaintiff in the present suit also is for the rent of the entire area at the rate of Rs. 37/8/- per year. In face of these facts, the contention now raised on behalf of the plaintiff-appellant that the defendant was not in possession of the uncultivated portion of the lands is quite untenable and even if some portion of the lands has not been brought under actual cultivation, that area must be held to be in possession of the defendant since as early as 1932. I may also mention in this connection that although the aforesaid statement was made by D.W. 1, the plaintiff’s own witness, namely, P.W. 4 Raghunath Sharma, who is an Overseer of the District Board, stated that the entire area appertaining to the disputed lands was under cultivation. In any case, whether the entire area is actually under cultivation or not, the fact that the defendant had come into possession of the entire area stands admitted so far as the present case is concerned and, as such, the principles laid down in the case, referred to above, have no application to the facts of the present case. It follows, therefore, that the contention that in any view of the matter the defendant cannot be held to have any interest in a part of the suit lands, namely, the area of 7 bighas, which according to D.W. 1 is not cultivated, is quite untenable.
9. Coming now to the question as to whether the defendant has acquired any right of tenancy in the lands in suit and as to the nature and duration of such tenancy rights, it may be mentioned at the very outset that as the Courts below did not consider these questions, we have, in accordance with Section 103 of the Civil Procedure Code, examined the pleadings as well as the evidence as adduced in the case for the purpose of determining these matters. The fact that a limited right can be acquired by prescription was not disputed before us and reference may be made in this connection to the decision of this Court in the case of Phekua v. Padu, (1954) ILR 33 Pat 955. After referring to various earlier decisions, the Court held as follows in this case:–
“The position, therefore, is this so far as this Court is concerned. The following cases, namely, (1933) 14 Pat LT 294 = (AIR 1933 Pat 288), (1941) 23 Pat LT 200, AIR 1949 Pat 124, (1952) ILR 39 Pat 964 = (AIR 1952 Pat 46) & (1952) ILR 30 Pat 997 = (AIR 1952 Pat 293) favour the view that a limited interest either as a mortgagee or a lessee can be acquired by prescription. This view runs parallel to that expressed in Purusotham Das v. S.M. Dcsouza, AIR 1950 Orissa 213 and a host of decisions of other High Courts referred to at p. 216 which is not necessary to be repeated here. On the other hand, two decisions in AIR 1938 Pat 429 and AIR 1940 Pat 494, depend upon facts not relevant for a consideration of a question of this kind and the case reported in AIR 1952 Pat 43, cannot be said to have laid down a correct proposition in view of the opinion expressed by so many decisions of this Court, as discussed above” (Pages 972-973).
As already stated, the defendant does not claim about having acquired any absolute right in the lands in suit by prescription but only claims to have acquired a limited right as a tenant and in view of the aforesaid decision, it appears that there is no bar to the acquisition of a limited right as a tenant by prescription. As to whether, a permanent tenancy right can be acquired by prescription, the view as expressed by the Full Bench decision of this Court in the case of Bastacolla Colliery v. Bandhu Beldar, AIR 1960 Pat 344 was as follows:
“There are, however, some cases in which a lessee can acquire the right of a permanent tenant by prescription in spite of payment and acceptance of rent. Those are cases where the lessee pays rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner. The acceptance of rent by an owner on the basis of the lessee’s claim as a permanent tenant will not prevent the acquisition of such a right by the lessee. If the lessee tenders the rent on the basis of permanent tenancy and the owner refuses to accept it on that basis, the parties are at arm’s length and no relationship of landlord and tenant can come into existence between them. Hence, the lessee’s possession is adverse to the lessor and he may acquire a limited right of permanent tenancy by being in adverse possession for the statutory period.” (Page 348).
It may, however, be mentioned here that in the case of Patna Municipal Corpn. v. Ramdas, Civil Appeal No. 598 of 1963, D/-11-8-1965 (SC), the Supreme Court refrained from pronouncing upon the correctness of the aforesaid observation of the Patna High Court in the case of AIR 1960 Pat 344. That Court has again refrained from deciding as to whether the passage quoted above laid down the correct law by observing as follows in the case of Atyam Veeraju v. Pechetti Venkanna, AIR 1966 SC 629:–
"As we did not hear any argument on that point, we do not also decide whether this passage lays down the correct law. This passage must be read with the following observation of the Patna High Court in the same case: 'If once a tenancy of some kind comes into existence either under an express lease or under a lease implied by law, the tenant cannot convert his tenancy into a permanent one by doing any act adverse to the landlord' ". (Page 634) Apart from the fact that the decisions in the aforesaid Full Bench case are binding on this Division Bench, it appears that it is quite unnecessary for the purposes of the present case to enter into the question as to whether a permanent tenancy right can be acquired by prescription in any circumstances. As pointed out by the Supreme Court, it has been held in the aforesaid Full Bench case that once some sort of tenancy had come into existence, it is no longer open to the tenant to convert that tenancy into a permanent one by doing any act adverse to the landlord. Moreover, as held in the aforesaid Full Bench case, the question of acquisition of any permanent tenancy right by adverse possession can arise only when the lessee had paid rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner or where the lessee tenders rent on the basis of permanent tenancy and the owner refuses to accept it on that basis. I may mention here that in the case to which this Full Bench decision relates, the tenancy in question was created for residential purposes and, as such, the provisions of the Transfer of Property Act were applicable to the case, In the instant case, the settlement with the defendant was admittedly made for agricultural purposes, namely, for bringing the lands into cultivation and, as such, the provisions of the Transfer of Property Act with respect to leases as embodied in Chapter V of the Act, that is the provisions as incorporated in Sections 105 to 116 of this Act are not applicable in this case in view of the provisions of Section 117 of the Act, according to which none of the provisions of the aforesaid Chapter apply to leases for agricultural purposes except in so far as the Local Government may, by notification published in the Official Gazette, declare all or any of such provisions to be applicable. It was conceded before us that no such notification has been issued by the Local Government making any of the provisions of Chapter V of the Transfer of Property Act applicable to leases for agricultural purposes.
It is manifest that although the aforesaid Full Bench case arose out of a settlement made for residential purposes, the principles as laid down therein on the question of acquisition of permanent tenancy right by prescription are equally applicable in case of a tenancy for agricultural purposes also subject only to this difference that in case of an agricultural tenancy, the relevant provisions of the Bihar Tenancy Act regarding acquisition of occupancy or other rights will be applicable while in case of a tenancy for residential purposes, the relevant provisions of the Transfer of Property Act including Sections 106 and 111 relating to duration of such tenancies and issue of notice for terminating such tenancies will be applicable. Thus, in cases of a tenancy for agricultural purposes, if the person concerned is a settled raiyat of the village, he acquires under Sub-section (1) of Section 21 of the Bihar Tenancy Act a right of occupancy with respect to all lands held by him as a raiyat in that village. Again under Sub-section (1) of Section 20, a person acquires the status of a settled raiyat of a village by holding land in that village as a raiyat continuously for a period of 12 years. Thus, a person coming in possession of any land as a raiyat for agricultural purposes may acquire right of occupancy in such land immediately if he was already a settled raiyat of the village, or he may acquire such right later on by becoming a settled raiyat of the village subsequently as a result of continuous possession of land as a raiyat in that village for 12 years. In the present case, however, as already mentioned, the provisions incorporated in Chapter V of the Bihar Tenancy Act relating to the acquisition of occupancy right and the provisions embodied in Chapter VI with respect to non-occupancy raiyats are not applicable in view of the provisions of Section 116, as the lands were acquired for the District Board, Gaya, under the Land Acquisition Act. As such, so far as the lands in suit are concerned, the principles as laid down in the aforesaid Full Bench case as to the circumstances and the manner in which a permanent tenancy right can be acquired by adverse possession are fully applicable as there could be no question of acquisition of occupancy right in these lands by the defendant in accordance with the provisions of the Bihar Tenancy Act.
10. As held in the aforesaid Full Bench case, in order to acquire permanent tenancy right by prescription, it is necessary that the tenant concerned should pay rent to the landlord on the basis of open assertion of such right to the knowledge of the landlord or he must tender the rent on the basis of open assertion of such right and in the latter case even if the landlord refuses to accept the payment on that basis, the tenant would acquire a right of permanent tenancy. These principles are subject to the further condition as laid down in this Full Bench case that once a tenancy of some kind has come into existence, any subsequent assertion of permanent tenancy right by the tenant cannot create any such right in his favour by adverse possession.
11. Turning now to the facts of the present case, the position as admitted in the plaint itself is that although the lease in question was void, the defendant was in occupation of the property throughout the period of five years covered by the lease and continued in possession thereafter on the same terms in each successive years and was holding over the same as a lessee till 1952-53. According to paragraph 6 of the plaint, the plaintiff issued a notice on 14-5-1953 calling upon the defendant to vacate the land within three months from the date of receipt of the notice. It was further alleged in paragraph 9 of the plaint that the lease dated 31-5-1932 being void, the possession of the defendant under such a lease was not possession under law and the defendant did not acquire any right of tenancy therein. This is followed by paragraph 10 in which it was alleged that in any view of the matter, the defendant had forfeited all his rights by asserting an independent and hostile right in his reply dated 1-9-1953 to the notice issued by the plaintiff. It would thus appear that although in paragraph 9 of the plaint, the plaintiff had alleged the defendant’s possession to be wrongful since the very inception, it was admitted in the earlier paragraphs that the defendant had been in actual possession of the lands as a lessee on the terms of the original lease, even after expiry of the period of the lease in the year 1937 by holding over from year to year till 1952-53. In his written statement, the defendant also admitted that he had come into possession by virtue of the aforesaid lease and he has further admitted that he has been in possession since then and has been paying rent to the plaintiff at the rate of Rs. 37/8/- per year till the time the plaintiff refused to accept the same, but it was further alleged that he had acquired occupancy right by virtue of the provisions of the Bihar Tenancy Act and he had been paying rent as an occupancy raiyat. It appears, however, that although he claimed to have acquired occupancy right and to have paid rent as an occupancy raiyat there is no allegation in the written statement about his having ever made any open assertion to the knowledge of the plaintiff regarding acquisition of either occupancy right or any permanent tenancy rights in the lands prior to the reply dated 1-9-1953 to the notice issued by the plaintiff. In paragraph 5 of the reply to the notice (Vide Ext. 2/a), the defendant alleged that he was a settled raiyat of village Aiwan as well as Abgilla and he has, therefore, acquired the right of occupancy in the lands in suit as well. In paragraph 7 of the reply, allegations were made to the effect that all rents due till 1952-53 had been paid up and he was ready to pay rent for the then current year, that is, 1953-54. The allegations as made in paragraph 10 of the reply were as follows:–
“That since the termination of the original tenancy in the year 1937 and subsequent extension of the lease till 1940, my client Shri Deonath Sahai has been holding possession of the land in question asserting and exercising rights and claims of permanent and heritable tenancy openly, continuously, actually, uninterruptedly and exclusively to the knowledge of the Chairman and other authorities concerned of the District Board, Gaya, and to the knowledge of the General Public for a period of over 22 years and the District Board has always accepted rent of the said lands in recognition of the said claim of permanent tenancy and, as such, a permanent and heritable tenancy is created in favour of my said client by prescription and by adverse possession and consequently he is now a permanent lease-holder who is not liable to be ejected from his lease hold property, the lands in his possession.”
It is thus manifest that in this reply, the defendant had made a specific claim about having acquired permanent tenancy right by being in possession of the lands in open assertion of permanent tenancy right to the knowledge of the District Board authorities for over 22 years. It is significant, however, that no such claim was made in the written statement as filed by the defendant in the suit itself and the defendant merely made a claim therein about having acquired occupancy right in the lands under the Bihar Tenancy Act and about having paid rent to the plaintiff in this capacity. It is further significant that the written statement does not even contain any allegation about the payment of rent as having been made in open assertion of having acquired occupancy right to the knowledge of the plaintiff. Apart from the fact that no such claim has been made in the written Statement itself, it is also significant that no evidence whatsoever has been adduced to show that the defendant ever made any such assertion prior to 1-9-1953 when he sent the reply to the plaintiff’s notice. Two of the three witnesses examined on behalf of the defendant were the defendant himself (D.W. 2) and his elder brother (D.W. 1). Neither of them has made any statement about having ever paid or tendered rent to the plaintiff in open assertion of having either occupancy right or permanent tenancy right in the lands in question and what the defendant (D.W. 2) stated is that after 1953, he had twice gone to the District Board for payment of the rent but the plaintiff refused to accept the same while D.W. 1 has merely stated that he and defendant No. 1 were all along ready to pay rent and once he personally went to the Overseer and made payment for 1951-52 which he accepted and that thereafter they wanted to pay rent from 1953-54, but as the plaintiff was not ready to give any receipt for the same, the rent could not be paid. The remaining defence, witness (D.W. 3) has merely deposed that the lands were parti and uncultivated at the time of the settlement with the defendant. It would thus appear that the contention about the defendant having acquired permanent tenancy right in the lands in suit by adverse possession is quite untenable as there was never any assertion of such right by the defendant prior to 1-9-1953.
It, therefore follow that, irrespective of the correctness of the view expressed in the aforesaid Full Bench case that such right can be acquired by prescription in certain cases, there could be no question of acquisition of any such right by the defendant as he never asserted any such right prior to 1953 and the present suit has been instituted in the year 1960, that is, within a period of seven years from the time when such right was asserted for the first time by the defendant in his reply dated 1-9-53 to the notice sent by the plaintiff.
12. As already mentioned above, according to the allegations as made in the plaint and as admitted by the defendant also, the plaintiff had actually accepted rent from the defendant year to year from the very year when the aforesaid void lease was executed in 1932 till the year 1952-53. The registered deed of lease executed in favour of the defendant being void, the defendant had, undoubtedly, not acquired any right to the lands by virtue of this document. The relationship of landlord and tenant so far as agricultural lands are concerned, can, however, be created by the owner allowing the other party to remain in possession of the land and by accepting rent from him. The question, however, would arise as to what would be the nature and duration of such a tenancy.
In case of a tenancy governed by the Transfer of Property Act, the provisions of Section 106 would come into force and in absence of any contract or local law or usage to the contrary, a lease of immovable property for agricultural purposes will be deemed to be a lease from year to year terminable on the part of either the lessor or the lessee by six months’ notice expiring at the end of the year of tenancy and a lease of immovable property for any other purposes shall be deemed to be a lease from month to month terminable on the part of either the lessor or lessee by 15 days’ notice expiring at the end of the month of tenancy. These provisions, however, have no bearing so far as the lands in suit are concerned in view of the provisions of Section 116 of the T. P. Act, already referred to above. The fact that the original lease of the year 1932 was for a period of five years only is, however, not disputed and, as a matter of fact, apart from the statement in the plaint to this effect, this position was also admitted in paragraph 10 of the reply dated 1-9-53 which the defendant sent to the plaintiff’s notice and which has already been quoted above. It is, no doubt, true that the lease itself being a void one, the terms and conditions as embodied therein cannot be looked into for determining the terms and conditions of the tenancy under which the defendant continued in occupation of the lands. The plaintiff’s case, however, as made out in paragraph 5 of the plaint is that even after the expiry of the period of the aforesaid void lease, the defendant was allowed to continue in possession year to year on payment of the rent at the rate of Rs. 37/8/- per year as previously fixed and, as already mentioned, the fact that the defendant continued to pay rent at this rate till the year 1952-53 is admitted by the defendant also.
13. As already mentioned, an agricultural tenancy can come into existence as a result of the landlord allowing a person to hold a land during any particular period and by accepting rent from such period, but in absence of any evidence to show that the tenancy was created for a longer period, such tenancy must be held to cover only the period during which the person concerned remained in possession of the land with the landlord’s consent and for which the landlord accepted rent from him. Thus, in view of the fact that although the aforesaid lease was a void document, the defendant was allowed to retain possession of the lands and the landlord, that is, the plaintiff accepted rent from him from year to year a tenancy for each such year was created in favour of the defendant by such possession of defendant and acceptance of rent from him by the plaintiff. The duration of such a tenancy must be considered as being only upto the period during which the defendant was allowed to remain in possession with the plaintiff’s consent and for which the plaintiff accepted rent from him, there being no evidence to show that there was ever any agreement to create any tenancy for any longer period. It would follow, therefore, that for each of the years during which the rent was accepted from the defendant by the plaintiff, the tenancy for that particular year was created in favour of the defendant and the defendant had accordingly no right to retain possession of the lands after the lapse of the period during which he was allowed by the plaintiff to remain in possession by accepting rent from him.
I may mention here that learned counsel for the respondent relied on certain observations made in the case of Alakhdeo Singh v. Gaya District Board, AIR 1957 Pat 321 in support of his contention that in such a case a permanent tenancy comes into being. It transpires that in this case also a settlement was made by the Gaya District Board with respect to certain lands for a period of five years from 1-7-1933 on basis of annual rental and after the expiry of the term of that lease, the settlement was made for another period of five years with effect from 1-7-1939, these settlements having been made by virtue of registered deeds on both the occasions. These deeds were found to be void in view of the provisions of Rules 93, 94 and 103 of the Rules framed under the Local Self Government Act, just as in the present case and the following observations were made by the Court in this connection:
“When a person enters into possession of land under a void transaction and remains in possession for the full statutory period, the only question for determination is as to the nature of the interest that he has acquired by prescription. To hold that the defendant was a licensee would be to substitute the contract for the parties which is not permissible. Therefore, the only important question that falls for determination is what interest the defendant was prescribing by virtue of the adverse possession. One thing is quite plain. He cannot acquire by prescription a right higher than the right which the instrument of lease purported to convey to him. The transaction was admittedly a transaction of lease and, therefore, when the defendant entered into possession under a void lease, he can acquire only the right of a lessee by prescription”. (Page 323).
The Court further observed that ordinarily the suit will be governed by 12 years’ limitation and the defendant will acquire occupancy right by adverse possession. It was, however, contended in the aforesaid case that the provisions of Article 146-A of the Limitation Act providing a limitation period of 30 years would apply to the case as the land formed part of road side cutting land. As this aspect had not been decided by the courts below, the case was remanded for disposal according to law, with the following observations:
“If the disputed land Is a part of any public street or road, then the suit will be governed by 30 years period of limitation, as provided in Article 146-A of the Limitation Act. On the findings of the courts below, the defendant has been in possession of the suit land for about 13 years. If Article 146-A is applied, then the defendant has not acquired any interest in the land and the suit of the plaintiff must be decreed. If, however, the disputed land does not constitute part of a public street or road as envisaged in Article 146-A of the Limitation Act, the suit will no doubt, be governed by the General Law of Limitation, as provided in Article 144 of the Limitation Act, which prescribes a period of 12 years only. In that case, the defendant must be taken to have acquired occupancy right in the disputed land by prescription for the statutory period of 12 years and the plaintiff must be unsuited. Since, however, there is no finding on this point, the case must be remanded to the court below. If the court finds that the disputed land is part of a public road, the suit will be decreed. If on the other hand, the court finds that it is not a part of public street or road, the suit must be dismissed.” (Page 324).
It would appear from what has been stated above that the decision in the aforesaid case did not proceed on the footing about acquisition of any right of permanent tenancy by the defendant, but on the footing that if Article 146-A was not applicable to the case, the defendant must be deemed to have acquired occupancy right by 12 years’ possession and the suit in such a case will be liable to be dismissed. There is nothing to show that the land which formed subject-matter of this case had been acquired under the Land Acquisition Act and no question as to the existence of any bar to the acquisition of occupancy right in the land in view of the provisions of Section 116 of the Bihar Tenancy Act appears to have been raised in the above case. As already mentioned, so far as the agricultural lands are concerned, a person may acquire occupancy right therein merely by coming into possession thereof as a raiyat if he is a settled raiyat of the village or by continued possession of such land till he acquires the status of a settled raiyat in the village for which a continuous period of possession of any land in the village as a raiyat for a period of 12 years only is required. In the present case, however, no such right could be acquired for reasons already mentioned above. As such, the decision in the aforesaid case reported in AIR 1957 Pat 321, has no bearing whatsoever so far as the present case is concerned.
14. The position thus so far as the present case is concerned, is, therefore, that although the original lease in favour of the defendant, which was admittedly for a period of 5 years only, was a void document, the defendant, who had come into possession of the lands in suit on the basis of this lease and who had acquired no right in the lands thereby, continued to hold the lands as a tenant year after year as a result of being allowed to remain in possession of the lands and acceptance of rent from him year after year. Such tenancy continued year after year till 1952-53 only and no such tenancy existed thereafter, as although the defendant continued in possession of the lands even after that, the plaintiff did not acquiesce in such possession by accepting rent from the defendant and, on the contrary, he had asked the defendant to vacate the lands by issuing the notice dated 14-5-1953. It is manifest that so long as the defendant was in occupation of the land as a tenant from year to year, his possession could not be deemed to be adverse to the plaintiff, but his possession had become adverse since the time when he ceased to be a tenant of the plaintiff, that is, since after the end of the year 1952-53, as no further tenancy was created thereafter by acceptance of any rent by the plaintiff from the defendant. The plaintiff, therefore, become entitled to evict the defendant after the expiry of the year 1952-53 and the suit having been filed in the year 1960, that is, long before the expiry of 12 years from that date cannot be held to be barred by limitation. I may also mention here the provisions of the Transfer of Property Act relating to the issue of notice for termination of tenancy have no application to this case in view of Section 117 of the Act already referred to. As regards the Bihar Tenancy Act, there is no provision in this Act with respect to such a tenancy and as shown by Section 4 of the Act, there are, for the purpose of this Act, only the following classes of raiyats, namely raiyats holding at fixed rates, that is, either at a rent fixed in perpetuity or at a rate fixed in perpetuity occupancy raiyats and non-occupancy raiyats. As already pointed out, Section 116 of the Act provides that the provisions relating to acquisition of occupancy right as provided in Chapter V, are not applicable to the lands in suit as these were acquired under the Land Acquisition Act and as provided in the same section, the provisions of Chapter VI regarding non-occupancy raiyats are also not applicable for the same reason. It was contended by learned counsel for the respondent that as only the provisions of Chapter V relating to acquisition of occupancy right are non-applicable, the other provisions of this Chapter will apply. It transpires, however, that the only section of this Chapter which will be applicable is Section 20 which provides for acquisition of status of settled raiyat of the village by a person holding land as a raiyat for a continuous period of 12 years. Even if the defendant be held to have acquired the status of a settled raiyat of the village, that makes no change in the position so far as the lands in suit are concerned as this does not entitle him to any right of occupancy in the lands in suit in view of Section 116 of the Act. Hence in absence of any provision in the Bihar Tenancy Act corresponding to Section 106 of the Transfer of Property Act raising presumption of lease from year to year terminable by six months’ notice and in absence of any allegation or evidence regarding any agreement between the parties regarding the issue of any notice, it follows that it was not necessary for the plaintiff to issue any notice as a condition precedent for the institution of the present suit. Moreover, in view of the finding above that the tenancy in favour of the defendant did not subsist after 1952-53, the question of issue of any notice did not arise at all.
I may also mention here that even under the Transfer of Property Act, notice under Section 106 is required only for the purpose of terminating a tenancy, but no such notice appears to be necessary when the tenancy terminates in accordance with the provision of clauses (a) to (f) of Section 110 of the Act, as a result of efflux of the period of tenancy etc.
15. It follows, therefore, that the plaintiff is entitled to a decree for recovery of possession of the lands in suit from the defendant by ejecting him therefrom and the courts below have erred in rejecting this part of the plaintiff’s claim.
16. In the result, this appeal Is allowed and the judgments and decree of the courts below are hereby modified to the effect that the order of dismissal of the plaintiff’s claim for eviction of the defendant from the lands in suit as passed by the courts below is hereby set aside and the plaintiff appellant is held to be entitled to recovery of possession of the lands in suit from the defendant-respondent. The plaintiff-appellant shall get half his costs in this Court as well as in the two courts below on the valuation of Rs. 2338/- only, at which the present appeal has been valued.
Tarkeshwar Nath, J.
17. I agree.