JUDGMENT
Piggott, J.
1. This is a defendant’s appeal in a case in which the plaintiff, claiming to be the transferee of the proprietor of a certain house, sued for the defendant’s ejectment. The main question raised is whether the Courts below were right in deciding that the suit was not barred by limitation under the provisions of Article 139 of the Second Schedule to the Indian Limitation Act (X of 1877). The facts found by the lower appellate Court are that the predecessor-in-title of the plaintiff leased the house on July 14th, 1886, for a term of five years to the father of the defendant-appellant. No rent was ever paid after the expiration of this term of five years, and the present suit was brought on September 8th, 1908. The learned District Judge holds that, in the absence of evidence that the defendant-appellant or his father ever denied their lessor’s title, it cannot be said that their possession ever became adverse, or that limitation ever began to run against the lessor. So far as this Court is concerned, the particular point decided by the lower appellate Court is concluded by authority in an opposite sense. There are two published rulings in each of which a Bench of this Court has held that on the expiration of a lease for a fixed term, time begins to run against the lessor under Article 139 of the Second Schedule to Act XV of 1877.
2. I refer to Lachman v. Gulzari Lal 1 A.L.J. 201 and Puna Mal v. Makhdum Bakhsh 6 A.L.J. 584 : 3 Ind. Cas. 566 : 31 A. 514.
3. It was, therefore, not on the appellant to prove denial of title, but on the plaintiff-respondent to prove such payment of rent or admission of title as would serve to extend the period of limitation. This it has been found that the plaintiff failed to prove.
4. The appellant has not, in my opinion, strengthened his case by an alternative plea taken by him, to the effect that there was never any valid contract of lease in respect of the house in question. The Courts below have accepted as proof of the lease an agreement of July 14th, 1886, executed by the father of the appellant in which he undertook to occupy the said house and to pay rent for it at a certain rate for a period of five years. This is a registered document, but the point of the objection is that where it is desired to obtain from an owner of immovable property a contract of lease capable of enforcement against (he said owner, and the contract is of such a nature as to fall within the provisions of Section 107 of the Transfer of Property Act (Act IV of 1882), a document executed by the intending lessor is required. There are rulings of this Court to the above effect vide Nand Lal v. Hanuman Das 26 A. 368, Kashi Gir v. Jogendro Nath Ghose 27 A. 136. If, however, the appellant succeeded in his contention that there never was any valid or legally enforceable contract of lease in this case, the difficulty would arise that the Court would be compelled to inquire whether or not the defendant appellant’s possession over the house in suit was in its inception permissive, and if so, when and how it became adverse. Again, if I felt myself compelled to hold that there was in the present case a valid lease, but not a lease for a term, I should have to consider whether the rulings already referred to on the question of limitation were applicable, and whether the case did not fall under the principle of the older ruling in Prem Suhh Das v. Bhupia 2 A. 517.
5. I am, however, clearly of opinion that the agreement of July 14th, 1883 was, admissible in evidence, and that it constitutes a valid contract binding on the person who executed it. The Courts below had, therefore, legal evidence before them in support of their finding that the possession of the appellant’s father originated in a contract of lease and that finding at any rate must be accepted on second appeal. For the rest, I hold that the plaintiff having come into Court with the allegation that the possession of the appellant’s father originated in a lease for a fixed term cannot, when he finds that plea fatal to his case, be permitted to turn round and assert that there was a lease but not one for a term. I am also of opinion that the oral contract of lease between the parties together with the lessee’s agreement of July 14th, 1886, created a tenancy which owing to the lessor’s making no attempt to disturb the possession of the lessee and the latter’s continuing to pay rent for the period stipulated in his agreement became in fact a tenancy for five years, that is to say, for a specified term.
6. The case, therefore, does fall within the principle of the rulings referred to at the beginning of this judgment and must in accordance therewith be decided in favour of the appellant.
7. I set aside the decrees of the Courts below and dismiss the plaintiff’s claim, the plaintiff must pay all costs throughout including in this Court fees on the higher scale.
