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PETITIONER: RAM KUMAR DAS

       Vs.

RESPONDENT: JAGADISH CHANDRA DEB DHABAL DEBAND ANOTHER.

DATE OF JUDGMENT: 26/11/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1952 AIR   23            1952 SCR  269  CITATOR INFO :  D          1968 SC 794  (8)  E&D        1977 SC2425  (4)  RF         1980 SC 226  (11,14,15)

ACT:     Transfer  of  Property  Act  (IV  of  1882),  ss.   106, 107--Duration   of  lease--Presumption--Kabuliyat   for   10 years--Payment of annual rent for two years  only--Kabuliyat inoperative--Nature  of  possession  after  the  two   years --Whether adverse, as tenant from year to year, or as month- ly  tenant--Applicability  of  s.  106  to  implied   tenan- cies--Presumption from payment of annual rent.

HEADNOTE:       The  rule  of construction embodied in s. 106  of  the Transfer Property Act applies not only to express leases  of uncertain  duration but also to leases implied by law  which may  be inferred from possession and acceptance of rent  and other circumstances. 270 The  contract to the contrary contemplated by the said  sec- tion need not be an express contract; it may be implied, but it should  be a valid contract.  If the contract is  invalid the section will regulate the duration of the lease.      When  the rent  reserved is an annual rent, a  presump- tion  would  arise that the tenancy was  an  annual  tenancy unless  there  is something to rebut this  presumption.  But under s. 107 of the Transfer of Property Act a tenancy  from year to year or reserving an yearly rent can be made only by a registered instrument.      The  defendant executed a registered kabuliyat  to  the Receiver who was managing an estate pending a suit, purport- ing  to  take a plot of land on lease for a  period  of  ten years  at  a rental of Rs. 46 per annum and paid  the  first year’s  rent of Rs. 46 on the 8th March, 1925, and the  next year’s  rent  on the 16th March, 1926. No further  rent  was paid  by the defendant to the Receiver or to the  proprietor after that date.  The proprietor, treating the defendant  as a  monthly tenant served notice to quit on him on  the  18th July,  1942, asking the latter to vacate on the 7th  August,

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1942, and instituted a suit for ejectment in July, 1943. The kabuliyat was found to be inoperative in law and the defend- ant contended that the payment and acceptance of annual rent in  1925 and 1926 did not create a monthly tenancy  but  two tenancies  for one year each for two successive years,  that the  relation of landlord and tenant came to an end  on  the expiration of the second annual lease, and, as there was  no holding over, the suit was time-barred:      Held  (i) that from the facts a tenancy could  be  pre- sumed  to  have come into existence from 1924; (ii}  as  the purpose  of the tenancy was for building structures  on  the land,  under  sec. 106 of the Transfer of Property  Act  the tenancy  must be presumed to be one from month to  month  in the absence of a contract to the contrary; (iii) a  contract that  the  tenancy  was for one year certain  could  not  be inferred  in the present case from the fact that  an  annual rent  was paid in 1925 and 1926, inasmuch as the  kabuliyat, though  inoperative  in law, showed that the  parties  never intended  to create a lease for one year; (iv) on the  facts of the case it was quite proper to hold that the tenancy was one from month to month since its inception in 1924 and  the suit was not time-barred.      Debendra  Nath v. Shyama Prasanna (11 C.W.N. 1124)  and Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved.      Aziz Abroad v. Alauddin Abroad (A.I.R. 1933 Pat.  485), Md. Moosa v. Jaganand (20 I.C. 715) and Matilal v.  Darjeel- ing Municipality (17 C.L.J. 167) referred to.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 114  of 1950.   Appeal from a judgment and decree of the High  Court of Patna (Shearer and Reuben JJ.) dated 5th November,  1948, in Appeal No. 2064 of 1946, 271 which arose out of a decree of the District Judge of Purulia in Title Appeal No. 116 of 1945.  The facts are stated fully in the judgment.     M.C.  Setalvad,  Attorney-General  for  India,  (Nandial Untwalia, with him) for the appellant.     B. C. De (Jyotirmoy Ghose, with him) for the respondent.     1951.  November26. The Judgment of the Court was  deliv- ered by     MUKHERJEA J.---This appeal is on behalf of the defendant and  it  arises out of a suit commenced  by  the  plaintiff- respondent,  in the Court of the Subordinate Judge at  Chai- bassa,  for recovery of possession of the land described  in schedule to the plaint, on the allegation that the defendant was  a monthly tenant in respect of the same, and  that  the tenancy  was  determined by a notice to quit. The  suit  was decreed by the trial court and the decision was affirmed, on appeal,  by the District Judge, Purulia, and on  Second  Ap- peal,  by a Division Bench of the High Court of Patna.   The defendant has now come up to this court on the strength of a certificate granted under section 110, Civil Procedure Code.     Mr.  Setalvad,  appearing on behalf  of  the  defendant- appellant,  stated  to us at the outset that  he  would  not dispute  the validity or sufficiency of the notice  to  quit served  upon his client, if on the facts of this case he  is held  to be a monthly tenant under the plaintiff in  respect of  the premises in suit.  His contention, in substance,  is that the defendant was at no point of time a monthly  tenant under  the plaintiff or his predecessor.  There  might  have been,  according to the learned Counsel, two  tenancies  for

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one year each for two successive periods, but on the  expiry of the second yearly lease, which happened on 7th  December, 1926,  the  defendant  ceased to be a tenant  and  no  fresh tenancy  was created by holding over as is  contemplated  by section 116 of the Transfer of Property Act. As there was no holding  over, there could not be any question of a  monthly tenancy being brought into existence 272 under  the  provision  of section 116  of  the  Transfer  of Property  Act, and the present suit of the plaintiff  having been admittedly brought more than 12 years after the  deter- mination of the second yearly lease, is barred by limitation under  Article 139 of the Indian Limitation Act.  The  whole controversy  in this appeal thus centres round the point  as to whether the defendant was in fact a monthly tenant  under the  plaintiff  at the date  when the notice  to  quit   was served  upon him.  To appreciate the respective  contentions that  have been put forward upon this point by  the  learned Counsel  on  both  sides, it will be  necessary  to  narrate briefly the material facts in their chronological order.      The  property  in suit is a plot of land,  measuring  4 bighas  12 cuttas, and is comprised in old Survey  plot  No. 578  of village Jugselai in the district of  Singhbhum.  The entire  village forms part of the Dhalbhum estate, of  which the  plaintiff  is admittedly the  present  proprietor.  One Charan  Bhumiji was the " Prodhan" of village Jugselai  from some time before 1913 and on 24th July, 1913, the father  of the defendant, by a registered Patta, took a lease of  about :31 bighas of land appertaining to Survey plot No. 573  from this Prodhan for purposes of cultivation.  It is not disput- ed  that the property in suit is covered by this  Patta.  At that  time the proprietor of the  Dhalbhum estate  was  Raja Satrughna and he died in 1916, leaving behind him a will  by which the entire estate was bequeathed to the present plain- tiff.   The plaintiff’s claim under the will was  challenged by  one Partap Chandra Deo Dhabal who succeeded  in  getting his  name  recorded as proprietor of the  zemindari  in  the Singhbhum Collectorate. Thereupon the plaintiff instituted a suit  (being Title Suit No. 67 of 1921) in the Court of  the Subordinate  Judge  at Midnapore for  establishment  of  his title to the zemindari and the suit was decreed by the trial Judge.  Against this decision, the defendant Pratap  Chandra Deo Dhabal took an appeal to the High Court of Calcutta  and during the pendency of this appeal, the High Court appointed a Receiver who was put in 273 possession of the entire estate.  On 8th December, 1924, the defendant  executed a registered Kabuliyat in favour of  the Receiver,  by which he purported to take settlement  of  the land in suit for a period of 10 years at a rental of Rs.  46 per annum and a selami of Rs. 250.  There was a covenant  in the  lease, which looks like one for perpetual renewal,  and it was to the effect that on the expiry of the term, if  the lessor  did  not require the land for his own  purposes  and decided  to  re-settle it, the lessee would be  entitled  to fresh settlement on enhanced,rent and on such terms as might be then agreed upon between the parties. It appears from the record that the selami money, amounting to Rs. 250, was paid by  the defendant to the Receiver several months before  the Kabuliyat  was executed, and the rental amounting to Rs.  46 was paid for the first time on 8th of March, 1925.  The next payment of rent was made in the succeeding year, on 16th  of March, 1926. Admittedly, no further payment of rent was made by  the lessee either to the Receiver or to  the  proprietor since then, up to this period. The High Court dismissed  the

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appeal  preferred by Pratap Chandra Deo Dhabal some time  in 1924  and this order of dismissal was affirmed by the  Judi- cial  Committee  in May 1927.  The Receiver  was  then  dis- charged  and  the  plaintiff got possession  of  the  entire estate  in  July  1927.  On April 15,  1937,  the  plaintiff brought  a  suit for ejectment (being Title Suit  No.  2  of 1937)  against the defendant in respect of this property  in the  Court of the Subordinate Judge at Chaibassa. The  claim was  based  substantially upon the terms  of  the  Kabuliyat executed by the defendant on 24th of December, 1924, and the suit  was,  in fact, one for ejectment of a  lessee  on  the expiration of the period provided for in the lease.  It  was only the renewal clause in the Kabuliyat that was challenged as  invalid and inoperative, not only because it  was  vague and  indefinite  but also on the ground  that  the  Receiver acted beyond his authority in entering into a stipulation of this character. 36 274 The   defendant  in  his  written  statement  resisted   the plaintiff’s  claim  for possession primarily on  the  ground that  he had acquired permanent rights in the  land    under the Prodhan’s Patta of 1913 and continuous     occupation of it  since then for more than 12 years. The     Kabuliyat  of 1924, he attempted to ignore altogether. It was said that it was  executed  only to avoid trouble and harassment  at  the hands  of  the  Receiver and that, being  inoperative  as  a lease,  it could not, in any view, affect the  prior  rights which he acquired under the Patta of 1913.      The trial judge decreed the suit. On appeal, the  judg- ment was reversed by the District Judge and the  plaintiff’s suit  was dismissed simply on the ground that the notice  to quit that was served on the defendant was ineffectual in law to determine the tenancy. The District Judge found, first of all,  that the Prodhan’s Patta was void and  inoperative  in law and could not create any rights in the defendant,  inas- much as the Prodhan had no authority to settle lands of this character.  The Kabuliyat of 1924 was also held to be  inef- fectual as not amounting to a lease as defined by the Trans- fer of Property Act.  It was held, however, by the  District Judge  that apart from the Kabuliyat, a tenancy was  created by payment and acceptance of rent in the years 1925 and 1926 and  after  1926 the defendant occupied the  position  of  a monthly  tenant  by holding over under section  116  of  the Transfer  of Property Act. Such tenancy could be  determined by fifteen days’ notice, expiring with the month of tenancy, but  as the notice, which was served by the  plaintiff  upon the  defendant, did not fulfil this requirement, the  plain- tiff’s  suit was bound to fail.  The District Judge,  though he  dismissed the suit, gave the plaintiff a declaration  to the  effect  that the defendant was liable  to  eviction  on service  of fifteen days’ notice, expiring with the  end  of the  Bengali month of the tenancy.  Against  this  decision, the plaintiff took an appeal to the High Court of Patna, and the appeal came up for hearing before Harries C.J. and  Fazl Ali J.  The learned Judges affirmed the finding of the lower appellate court that 275 the Prodhan’s Patta did not create any rights in the defend- ant and that the Kabuliyat of 1924 was also  ineffectual  as a  lease  to  give the defendant  any  tenancy  right.   The learned  Judges  further held that  the  defendant  did  not acquire  any permanent right in the land by prescription  or otherwise  and that by reason of the payment of rent to  the Receiver in the years 1925 and 1926 he became a tenant  from

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month  to month. In these circumstances the High Court  con- curred with the District Judge in holding that the notice to quit  was  insufficient for the purpose of  determining  the tenancy.   It  seems  that the defendant  made  a  strenuous endeavour  before  the High Court to establish that  as  the Patta  of  1913 as well as the Kabuliyat of 1924  were  both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the  two payments of rent, inasmuch as the Receiver had no  authority to  receive  them.  It was contended,  therefore,  that  the plaintiff was in possession of the land as a trespasser  all along and thus acquired a good title by adverse  possession. The High Court, though it held definitely that the defendant was a tenant from month to month, nevertheless kept open the question  as to whether the payment of rent to the  Receiver was  tantamount  to payment to the plaintiff.  It  was  held that  as the notice to quit was defective, that  was  suffi- cient for dismissal of the suit, and the declaration made in the  decree of the lower appellate court that the  defendant was liable to be evicted on service of fifteen days’ notice, expiring with the Bengali month of the tenancy, was directed to  be  deleted.  This judgment of the High Court  was  pro- nounced on the 5th of May, 1942.     Soon after this on 18th July, 1942, the plaintiff served a notice to quit on the defendant, asking him to vacate  the land  on the 7th of August following, and as  the  defendant refused to give up possession, the present suit was  brought on  22nd  July, 1943.  The plaint in the present suit  is  a very simple one;it proceeds entirely on the findings record- ed by the High Court in the previous litigation.  The  right to 276 possession  is  not based on the terms of the  Kabuliyat  of 1024.  The plaintiff avers that by reason of the payment  of rent on 8th March, 1925, and 16th March, 1926 the  defendant became a tenant from month to month under him and the tenan- cy was determined by    a proper notice to quit.      The  defendant in his written statement raised  several pleas in answer to the plaintiff’s claim.  He reiterated his rights  under the Patta of 1913 and urged that by reason  of his holding possession of the land on assertion of a  perma- nent tenancy right for a long period of time, he acquired  a valid  title  to the property. As regards the  Kabuliyat  of 1924,  it is said in one part of the written statement  that the  defendant executed this document under  misapprehension of facts without knowing the contents thereof. But at anoth- er place it is stated that the Kabuliyat was binding on  the plaintiff  and  he was not entitled to institute a  suit  in contravention  of its terms, without in any event  refunding the  selami money.  The  defendant admitted, what he  denied in the earlier suit, that the payments made to the  Receiver amounted to payments to the plaintiff himself, although this question  was  left open by the High Court on  the  previous occasion.  The other pleas raised in the  written  statement are  not material, except that a specific point  was  taken, challenging  the sufficiency of the notice to quit that  was served upon the defendant.      On these pleadings a number of issues were framed.  The trial judge held on a consideration of the materials  placed before him that the Prodhan’s Patta was a void and  inopera- tive document and conferred no rights on the defendant.   He negatived the case, which the defendant attempted to make in course  of hearing, that the Kabuliyat executed by  him  was obtained by threat and coercion. It was held by the Subordi- nate  Judge  in accordance with the decisions of  the  Patna

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High Court on the point that the Kabuliyat could not operate as  a lease under the Transfer of Property Act,  and  conse- quently the defendant did not acquire the rights of a lessee under the same. He held, however, 277 that by payment and acceptance of rent  a  new tenancy   was created  de hors the Kabuliyat, and as the new  tenancy  was for building purposes, it. was a tenancy from month to month under   section 106 Transfer of Property Act, terminable  by fifteen days  notice.  As the notice was proper and,  suffi- cient,  the  trial  judge  decreed  the  plaintiff’s   suit. Against  this judgment, the defendant took an appeal to  the court of the District Judge, Purulia, and the District Judge dismissed the appeal and affirmed the judgment of the  trial court. It appears that two points were raised by the defend- ant before the District Judge in support of his appeal:  one was that the Kabuliyat of 1924 was effective as a lease  and consequently  the defendant could not be ejected in  contra- vention  of the terms thereof. At the same time it was  con- tended that there was no tenancy at all held by the  defend- ant  under the plaintiff,  inasmuch as the payments made  to the Receiver could not be regarded as payments to the plain- tiff.  The first point, the District Judge pointed out,  was contrary  to the express decisions of the Patna High  Court, while  the second was contradictory to the  defendant’s  own admission in the written statement.     The  defendant then came up in Second Appeal before  the High  Court of Patna and the appeal was heard by a  Division Bench,  consisting of Shearer and  Reuben JJ.   The  learned Judges  agreed  in dismissing the appeal and  affirming  the decree made by the courts below, but the grounds upon  which they based their decision are not identical.  As regards the nature  of  the  tenancy created by implication  of  law  in consequence of the Receiver having accepted payment of  rent from the defendant, it was held by Reuben J. that when   the Receiver  accepted rent in 1925, it should be presumed  that the  parties intended to create a tenancy for one  year  and when he accepted rent again in 1926, such acceptance amount- ed to his assenting to the defendant’s holding over; and  in view  of the purpose for which the tenancy was created,  the defendant from that time became a tenant from 278 month to month under the provision of section 116,  Transfer of Property Act.  Shearer, J., felt difficulty in  accepting this  view though in his opinion if a periodic  tenancy  was created  at  all, it was from  month to month and  not  from year to year. There are observations, however, in the latter part of the judgment of Shearer, J., which would go to  show that in his opinion the creation of two leases, each for one year,  could be fairly gathered from the admitted  facts  of the  case.  The learned Judge was not sure, however,  as  to whether the defendant ever became a tenant of the plaintiff. He  discussed the nature of the renewal clause contained  in the  Kabuliyat and held it to be void for  uncertainty.   He also  negatived  the  defendant’s plea on  the  strength  of adverse  possession.  His conclusion was that whatever  view might be taken regarding these points, the defendant  had no valid  defence  to the plaintiff’s claim  for  eviction  and consequently the decision of the courts below was right.  It is  the propriety of this decision that has been  challenged before us in this appeal.       Mr. Setalvad, in support of his client’s case, has not called in aid the Prodhan’s Patta of 1913; nor has he placed any reliance upon the Kabuliyat of 1924 and the covenant for renewal  contained therein.  He has not disputed  before  us

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that  the  payments  made to the Receiver  were  in  reality payments to the plaintiffs, and has conceded that a  tenancy could  be  created by implication by reason  of  his  client having  paid and the Receiver having accepted rents  in  re- spect  of the suit premises.  His contention,  as  indicated already, is that by reason of the payment and acceptance  of rent,  there  were  two tenancies for one year each,  creat- ed  for   two  successive years; but  the  relationship   of landlord  and tenant between the parties came to an  end  on the expiration of the second annual lease.  As there was  no holding over by the defendant since then as contemplated  by section 116, Transfer of Property Act, there was no subsist- ing tenancy at any time after December, 1926, and the plain- tiff’s  suit instituted in the year 1943 was obviously  time barred. 279     Mr. De, appearing for the plaintiff-respondent, has,  on the other hand, contended that the tenancy that was  created by payment and acceptance of rent in the year 1925 was  from the beginning a tenancy from month to month under the provi- sion  of section 106. Transfer   of Property Act.   Alterna- tively,  he has argued that if a tenancy for one  year  only was  created in the year 1925, then after the expiration  of that  one  year’s  lease the defendant  held  over  and  the Receiver’s  assent  to  his  continuing  in  possession   is evidenced  by  acceptance    of rent from him  in  the  year 1926.   The  tenancy thus created would be  a  tenancy  from month to month under section 116, Transfer of Property  Act. Lastly,  it is argued that even if two successive  tenancies were  created   for one year each, the  facts  admitted  and proved would go to show that the tenant held over after  the second annual lease and consequently a tenancy from month to month  came into existence in accordance with the  provision of  section  116, Transfer of Property Act, even  though  no rent  was demanded by the landlord after 1926.  The  contro- versy  between  the parties so far as this  appeal  is  con- cerned,  therefore,  narrows  down to  the  following  three points :--     (1)  What was the nature of the tenancy created  by  ac- ceptance  of rent by the Receiver from the defendant on  the 8th  of  March, 1925 ?  If it was a tenancy  from  month  to month, it is not disputed on behalf of the defendant that no question  of holding over would at all arise and the  plain- tiff would be entitled to succeed.     (2)  If in 1925 a tenancy was created for one year,  can the  landlord’s  assent  to the  defendant’s  continuing  in possession be inferred from the fact that rent was  accepted from the defendant in March, 1926 ?     (3)  If the  payment and  acceptance of rent  in  March, 1926,  brought into existence a tenancy for  another   year, was   there   any    subsequent tenancy  created  after  the second year, although there was no ,demand or acceptance  of rent by the landlord since then ? 280      So  far  as the first point is  concerned,  the  courts below  have proceeded on the view that a registered  instru- ment signed by the landlord was necessary to create. a valid lease for ten years.  That view was not questioned before us and we express no opinion on this point. Proceeding,  there- fore,  on the assumption that even though the parties  might have  intended to create a lease for 10 years, no  operative ]ease came into existence, the only facts admitted are  that the  defendant remained in possession of the land  belonging to  the  plaintiff with the permission of the  Receiver  who represented  the  plaintiff’s estate, and paid rent  to  the

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latter.  From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the  tenancy that was created in the present  case?  Section 106 of the Transfer of Property Act lays down:       "In the absence of a contract or local law or usage to the contrary  a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year  to year, terminable, on the part of either  lessor  or lessee,  by  six months’ notice expiring with the end  of  a year  of the tenancy; and a lease of immovable property  for any  other purpose shall be deemed to be a lease from  month to  month, terminable, on the part of either lessor or  les- see,  by  fifteen days’ notice expiring with the  end  of  a month of tenancy."      The  section lays down a rule of construction which  is to  be applied when there is no period agreed  upon  between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the  tenancy is  created. The rule of construction embodied in this  sec- tion  applies not only to express leases of uncertain  dura- tion but also to leases implied by law which may be inferred from  possession  and acceptance of rent and  other  circum- stances.   It  is conceded that in the case  before  us  the tenancy was not for manufacturing or agricultural  purposes. The object was to enable the lessee to build structures upon the land.  In these circumstances, it could be 281 regarded as a tenancy from month to month. unless there  was a  contract  to the contrary. The question now  is,  whether there  was a contract to the contrary in the present case  ? Mr.  Setalvad  relies very strongly upon the fact  that  the rent  paid here was an annual rent and he argues  that  from this  fact  it  can fairly be inferred  that  the  agreement between  the parties was certainly not to create  a  monthly tenancy.   It is not disputed that the contract to the  con- trary,  as contemplated by section 106 of the  Transfer  of. Property  Act,  need not be an express contract; it  may  be implied, but it certainly should be a valid contract.  If it is  no  contract in law, the section will be  operative  and regulate  the  duration of the lease. It has no  doubt  been recognised in several cases that the mode in which a rent is expressed  to  be  payable affords a  presumption  that  the tenancy  is  of a character corresponding there  to.  Conse- quently,  when  the  rent reserved is an  annual  rent,  the presumption  would  arise  that the tenancy  was  an  annual tenancy unless there is something to rebut the  presumption. But the difficulty in applying this rule to the present case arises  from  the fact that a tenancy from year to  year  or reserving  a  yearly  rent can be made  only  by  registered instrument,  as laid down in section 107 of the Transfer  of Property  Act(1).   The Kabuliyat in the case before  us  is undoubtedly a registered instrument, but ex-concessis it  is not  an  operative document at all and  cannot  consequently fulfil  the requirements of section 107 of the  Transfer  of Property Act.     This  position in fact is not seriously controverted  by Mr.  Setalvad;  but what he argues is that a lease  for  one year  certain might fairly be inferred from the  payment  of annual  rent,  and a stipulation like that  would  not  come within  the  mischief  of section 107  of  the  Transfer  of Property  Act.   His contention is that the  payment  of  an annual  rent,  as was made in the present case,  is  totally inconsistent with a monthly lease.  We are not unmindful  of the fact that in  (1)  Vide Debendra Nath v. Syama Prasanna, 11 C.W.N.  1124,

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1126   37 282 certain  reported cases, such inference has been drawn.  One such  case has been referred to by Mr.Justice Reuben in  his judgment(1),  where  reliance  was placed  upon  an  earlier decision  of the Calcutta High CoUrt(3).     A similar  view seems  to  have  been taken also in  Matilal  v.  Darjeeling Municipality(3).    But one serious objection to this view seems to be   that this would amount to making a new contract for the  parties. The parties here certainly did not intend to create a  lease for  one  year.  The lease was intended       to  be  for  a period  exceeding  one year, but as the  intention  was  not expressed  in the proper legal form, it could not  be  given effect to.  It is one thing to say that in the absence of  a valid agreement, the rights of the parties would be regulat- ed  by law in the same manner as if no agreement existed  at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admit- ted facts of the case.     It  would be pertinent to point out in tiffs  connection that in the Second Appeal preferred by the plaintiff against the  dismissal  of his earlier suit by the  lower  appellate court,  the High Court definitely held that the  defendant’s tenancy  was  one  from month to month  under  section  106, Transfer  of Property Act, and the only question  left  open was  whether payment to the Receiver amounted to payment  to the  plaintiff himself. In this suit the defendant  admitted in  his written statement that payment to the  Receiver  had the  same effect as payment to the plaintiff, and the  trial judge  took the same view as was taken by the High Court  on the previous occasion, that by payment to and acceptance  of rent by the Receiver, the defendant became a monthly  tenant under section 106, Transfer of Property Act.  In his  appeal before  the  District  Judge, which was the  last  court  of facts,  the only ground upon which the defendant  sought  to challenge  this  finding  of the trial judge  was  that  the Receiver was an unauthorised person because of the ’decision of (1) Aziz Ahmad v. Alauddin Ahmad, A.I.R. 1933 Pat. 485. (2) Md. Moosa v. Jaganund 20 I.C. 715     (3) 17 C.L.J. 167. 283 the  Judicial Committee which set aside his appointment  and consequently  acceptance of rent by such  person  could  not create  a  monthly tenancy. This shows that it was  not  the case of the defendant at any stage of this suit that because one year’s rent was paid, a tenancy for one year was brought into  existence.  We  think, therefore, that  on  the  facts of  this  case  it would be quite proper to  hold  that  the tenancy  of the defendant was one from month to month  since its  inception  in  1924.  This view finds  support  from  a number of reported cases(1), and in all these cases the rent payable  was  a  yearly rental.  On this  finding  no  other question  would arise and as the validity of the notice  has not been questioned before us, the plaintiff would be  enti- tled to a decree in his favour. The appeal thus fails and is dismissed with costs.                                      Appeal dismissed. Agent for the appellant: R.C. Prasad. Agent for the respondents: S.P. Varma,      Vide Debendra Nath v. Syama Prasanna,  11 C.W.N.  1124; Sheikh Akloo v. Emaman, I.L.R. 44 Cal. 403. 284

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