JUDGMENT
Jwala Prasad, J.
1. This appeal arises out of a suit brought by the landlord to eject the defendants from the lands in suit, said to consist of 4 bighas of Zerait land.”
2. On 4th March 1898, on behalf of the plaintiff his mother gave to the defendants a lease called Sadhaua Patawa Theka of 5 annas 6 gand as 2 cowries 2 karants Pucca Patti bearing Touzi No. 5510/2 in Mouza Tandaspur Joka, Pergana Nezam ud-dinpur Bogra, along with the shares owned by the plaintiff in other Mouzas. The share leased in the Mouza included some lands in the direct possession of the lessor. The lease was for a term of 9 years from 1306 to 1314 F. S. After the expiry of the lease the defendants, upon the requisition of the J plaintiff, gave up possession of the lease hold property from the month of Kartick 1315 F. S. with the exception of 4 bighas of the Zerait land in dispute. The plaintiff’s case is, as stated in Paragraph 5 of the plaint, that the defendants continued in possession and occupation of the land in suit on the pretext of obtaining a fresh lease in respect of the shares in the Mouzas as mentioned in the Sadhaua Patawa lease referred to above, and upon that pretext they obtained permission of the plaintiff to continue in possession of the land in suit during the pendency of the negotiations regarding the renewal of the lease in the village. The negotiations, however, fell through. The plaintiff then demanded possession of the land in suit from the defendants, but the defendants declined to give up possession of the land.
3. In 1911 the plaintiff instituted a suit No. 730 of 1911 for ejectment of the defendants from the lands in suit, upon the ground that the defendants were trespassers upon the lands and that the said lands were the Zerait of the plaintiff.
4. The defendants in that suit pleaded that they were in possession of the lands in pursuance of an oral agreement arrived at between the parties, whereby the plaintiff had agreed to allow the defendants to hold over the disputed lands on payment of the rents at the rates prevailing in the locality.
5. That suit was dismissed by the Munsif, who held that the defendants had held the lands as tenants thereof and were not trespassers at all. On appeal the Subordinate Judge upheld the decision, holding ‘that the defendants were holding over the lands with the permission of the plaintiff and were thus licensees in respect of the lands in suit. The status of the defendants was left undetermined. The judgment of the Appellate Court is dated 11th July ‘1913. The present suit was brought soon after that on the 2nd March 1914, after giving notice to the defendants to quit the ‘lands in suit. The lower Appellate Court has held that the notice was served on the 4th August 1913 and the present ‘suit was filed on the 2nd March 1914, that is after the expiry of six months of the term of the notice.
6. The defendants denied that the land was the Zerait of the plaintiff and alleged that they were in possession of the same by virtue of an oral agreement with the plaintiff after the expiry of the lease in 1314 F. S, on the condition of their paying the rents at the rates prevailing in the vicinity. The Munsif upheld the plea of the defendants and dismissed the suit of the plaintiff.
7. Oa appeal, the Subordinate Judge by his judgment, dated the 27th August 1917, reversed the decision of the Munsif and decreed the suit of the plaintiff, holding that the defendants were tenants holding the lands from year to year and hence the tenancy was terminated by the service of notice to quit given to the defendants by the plaintiff. Aggrieved by the said decision the defendants appealed to this Court. The case was remanded to the lower Appellate Court for determination of the following issues framed by this Court
1. Are the lands in suit Zerait lands within the meaning of the Bengal Tenancy Act; and
2. Was the defendant holding under a lease for a term of years or under a lease from year to year?”
8. The Court below has now remitted its finding upon the aforesaid issues. As to the first issue the Court below has held that the plaintiff failed to prove the lands in suit to be the Zerait lands as defined in Sections 166 and 120 of the Bengal Tenancy Act. As to the 2nd issue the Court below, in agreement with the view taken by the Appellate Court in Suit No, 730 of 1911 already referred to, has held that the defendants were holding over the lands as mere licensees. The finding has been made clear towards the end of the judgment, where it has been clearly held “that there was no formal agreement between the parties after the expiry of the lease in 1314 F. S., but that there might have been some talk about the renewal of the lease with respect to the disputed lands. There is nothing to show that the defendant got any extension of the lease. He was simply holding over the lands pending the completion of the negotiations with the tacit, if not express, permission of the plaintiff.” The Court has distinctly held that ” the defendants were holding over from year to year.”
9. Under Section 51 of the Bengal Tenancy Act as well as under Section 116 of the Transfer of Property Act, the defendants upon the aforesaid finding would be deemed to have been occupying the lands in dispute upon the same conditions as those contained in the original lease, by virtue of which they were admitted into the occupation of the lands in suit as part and parcel of the share of the plaintiff leased to them in the village in question. Section 116 of the Transfer of Property Act says that if a lessee remains in possession of the property leased to him after the termination of the lease and the lessor or his legal representative accepts rent from him or otherwise assents to his continuing in possession, in the absence of an agreement to the contrary the lease shall be considered to have been renewed from year to year or from month to month according to the purpose of the property leased. Section 51 of the Bengal Tenancy Act embodies the principle of Section 116 of the Transfer of Property Act. It is obvious that if a lessee holds over after the expiry of the term of his lease with the consent of the lessor, as in this case, he, the lessee, occupies the same character as he did under the expired lease. The status of the defend ants in the present case is undisputed to be that of a tenure-holder as defined in Section 5 of the Bengal Tenancy Act. The share in the village belonging to the plaintiff and formed into a separate Patti was leased to the defendants for the purpose of collecting rents or bringing the lands under cultivation by establishing tenants thereon. The land in suit was described in the lease as Zerait. Whether the defendants are bound by the description, or whether the description would be accepted by a Court as conclusive evidence of the character of the land being Zerait, is immaterial. The description shows at least that the land was in’ direct possession of the landlord and it has been so recorded in the Survey Record of Rights in which the land has been deseribad as bakasht, i e., under the direct cultivation of the landlord. The defendants, after the expiry of the term of the lease, had no right to set up any title in these lands adverse to that of the lessor and in derogation of the rights of the latter. The defendants were fully cognizant of their own status. In Suit No. 730 of 1911 all that the plaintiff expressly claimed was that the land in suit was his Zerait. The defendants did not controvert that statement and tacitly accepted it by alleging that they had acquired the right to hold over the land as tenants by virtue of an oral agreement after the expiry of the lease in question. If the defendants can prove that they held over the lands under the oral agreement set up by them, the principle of holding over will not at all affect their title and their case will than come under the provisions of the Bengal tenancy Act governing the incident of a tenant, whether occupancy or non occupancy. The finding of fact of the Court below has concluded this point. It has been held that the oral agreement set up by the defendants has not been proved; all that has been proved is that the landlord consented to their remaining in possession of the lands during the pendency of the negotiations in respect of the disputed lands, but that consent does not crease a contract of tenancy. The consent was with the object of giving them the rights under Section 116 by holding over. Accepting the finding of the Court below, we hold that the defendants were tenure-holders in respect of the lands in suit and were not raiyats within the definition of the term in the Bengal Tenancy Act. Therefore, the contention of the learned Vakil on behalf of toe appellant that the suit of the plaintiff is barred by the provisions of Station 44 of the Bengal Tenancy Act, mast fail. That Section applies to non-occupancy raiyats, and the defendants not being such raiyats the Section has no application to the present case.
10. It is now unnecessary to consider the objections of the learned Vakil appearing on behalf of the respondent as to the finding on issue No. 1, namely, that the lands in suit are not the Zerait lands within the meaning of the Bengal Tenancy Act. It would be sufficient to mention that all the objections appear to have bean disposed of by the Court below and that there is nothing to show that the view taken by the Court below is not correct. The plaintiff has not been able to prove within Section 120 of the Bengal Tenancy Act that the land in suit is the Zerait land of the proprietor. No doubt the defendants ought to have denied the character of the land as Zerait in their written statement in Suit No, 730 of 1911. But it is more than doubtful whether the scope of that suit was such as to make the omission of the defendants to make an express denial of the allegation of the plaintiff operate as res judicata on the question as to whether the land is the Zarait of the Malik.
11. The learned Vakil on behalf of the appellants contends that the defendants cannot be ejected from the lands in question inasmuch as the notice served by the plaintiff was not sufficient in law. The lower Appellate Court held in its judgment, dated the 27th August 1917, before the case was remanded for further finding, that the notice was served upon the appellants on the 4th August 1913, and the present suit was brought on the 2nd March 1914, after the expiry of six months, the term of the notice, and hence the notice was sufficient and valid in law. The contension of the learned Vakil is that the appellants were entitled to have six months’ notice before the plaintiff could terminate the lease in question. This contention is based upon Section 106 of the Transfer of Property Act. In the first place, it is doubtful if Section 106 applies to the land which was used by the plaintiff for agricultural purposes, for Section 117 of the Transfer of Property Act exemots leases for agricultural purposes from the operation of Chaoter V of the Transfer of Property Act in which Section 105 happens to be, exuit in so far as the Local Government with the previous: sanction of the Governor General in Council may by notification published in the Local Official Gazette declare all or any of such provisions to be applicable in the case of all or any of agricultural leases. We have not been shown any notification issued by the Government under the latter part of Section 117 and hence Section 106 does not apply to agricultural leases. Assuming for the sake of argument that the Section does apply to agricultural leases, the lease terminated in 1314 F. S. The defendants held over the lands with the consent of the landlord in the succeeding year during the pendency of negotiations for a lease of the share of the plaintiff in the village. The negotiations having fallen through, the plaintiff regarded the continuance of the possession of the defendants as that of a trespasser upon the lands and consequently brought the Suit No. 730 of 1911 referred to above. In that case, as has already been observed, the defendants were held as having been allowed to continue to hold over the lands after the expiry of the lease as mere licensees. The plaintiff did not at all treat the defendants as tenants of the lands. The suit of 1911 is a clear notice of the intention of the plaintiff to evict the defendants from the lands in suit. No fresh tenancy having been created as held by the Court below, it would appear that no notice under Section 106 was at all necessary. This view has been taken in two cases, Nandikolla Gopalan v. Manyam Mahalakshmi Amma Zemindarini Garu 7 Ind. Cas. 8; 8 M. L. T. 230; (1910) M. W. N. 622, and Gokul Chand v. Shib Charon 13 Ind. Cas. 59; 9 A. L. J. 574, The facts of the latter appear to be very similar to those of the present one, where the defendant continued to hold over possession of the house after the expiration of the term of the lease in defiance of the authority of the lessor, and it was held that he was not entitled to a notice to quit under Section 106 of the Transfer of Property Act. In the present case the plaintiff gave a notice on the 4th August 1913 (corresponding to 17th Srawan 1320) requiring the defendants to quit the lands by the 1st Asin 1321. The suit was brought on the 2nd March 1914. The defendants were, therefore, given sufficient notice in the present case, if the case is governed by the provisions of the Bengal Tenancy Act applicable to tenure holders, no notice appears to have been prescribed by the said Act; much less a notice of six months, as the learned Vakil on behalf of the appellants contends, his clients were entitled to in this case. The contention is, therefore, overruled.
12. The result is that this appeal is dismissed with costs.
Foster, J.
13. I concur In my opinion the defendant has been holding as a tenant of a tenure, as defined in Section 5 of the Bengal Tenancy Act. My reasons are that in 1315 F. S. the two parties agreed to the defendant remaining on the land, he having hitherto held it as tenure-holder, and that they were contemplating a renewal of the tenure in respect of that very land. It is quite obvious that neither party contemplated a raiyati settlement. It also seems to me that the settlement was for that year only. There is nothing to show to the contrary, and the parties were expecting a renewal of the tenure. So even if it be considered a new settlement, as the appellant would have held it to be in 1315, it was only a new settlement for one year and it was a settlement of a tenure. That apparently was renewed with the tacit assent of the landlord year by year up to the year 1320. I gather this from the decision of Suit No. 730 of 1911 But what has been the position since 1320? The defendant cannot say for a moment that he held over the land as a raiyat with the assent of the landlord in the years 1321, 1322 and the other succeeding years, year by year; for that is necessary to justify his remaining on the land. If there is no landlord’s assent, then the defendant has lost his status. Giving the very best position possible to the defendant, it could only be that of a tenant by sufferance, and that tenancy is terminable at the will of the land lord. I think that the notice issued in August 1913 was sufficient expression of the landlord’s will to determine that tenancy. It is quite clear, however, from the record that the defendant has been holding the land against the wishes of the landlord, and his allegations both that he has been given a raiyati settlement and that the landlord had assented to his possession of the land, are untrue and disingenuous.