Das, J.

1. On the 11th May 1866 Maharaja Ram Nath Singh the predecessor-in-title of the Plaintiff granted the village Goniatu in Mokarrari Istamrari lease to Hiraman Baid and Sambhu Baid. The defendant No. 1 is the grandson of Hiraman Baid and defendant No. 2 is the grandson of Sambhu Baid. It is not disputed before us that the lease did not confer on the grantees a permanent interest in the land demised. It is conceded that it created in their favour a lease for life determinable on the death of the survivor of the grantees. In 1875 Hiraman Baid, the survivor of the grantee, died leaving behind him a son named Doman. Sambhu had died previously leaving a son Chattur. Although the lease came to an end in 1875 on the death of the survivor of the grantees, Doman and Chattur with their sons continued to be in possession of the demised premises up to 1899 upon payment of rent by them to the landlord. It is conceded that since 1899 no rent has been paid either by Doman and Chattur or by the defendants to the landlord. The landlord served a notice to quit upon the defendants first in September 1909 and then in September 1917 and on the 9th January 1919 commenced the suit, out of which this appeal arises, for the ejectment of the defendants from the demised land. The suit was contested mainly on the ground that it was barred by limitation, but it appears that it was also urged on behalf of the defendants that they had acquired a title to the disputed land by adverse possession. The pleas put forward on behalf of the Defendants did not find favour with the learned Subordinate Judge and he has given the plaintiff a decree substantially as claimed by him.

2. In my opinion, the decision of the learned Subordinate Judge is right and ought to be affirmed, In the course of a very able argument Mr. B.C. De contended before us that the lease having come to an end in 1875, the possession of the defendants was that of trespassers and that the suit is clearly barred by limitation under Art. 139 of the Limitation Act. Now there is no dispute that Art. 139 of the Limitation Act does apply; but the question still remains, when the tenancy ought to be considered as having been determined. Mr. B.C. De argues that subsequent to 1875, the defendants or their predecessors in title could only be regarded as tenants by sufferance and that as tenants by sufferance are only in by the laches of the owner, so there is no privity between them, and that the holding over by the tenants was wrongful, and that the limitation provided by Art. 139 commenced to run against the landlord from the time when the fixed lease expired. The proposition in the form in which it is put by Mr. De may be accepted as well-founded, and there is abundant authority for the view that a tenancy by sufferance would not by itself make the possession of the holder rightful, so as to prevent limitation from running. But the proposition is subject to one important qualification and that is that if the landlord or the person entitled to resume the tenancy does anything to indicate his assent to the continuance of the tenancy, that would itself be sufficient to convert the tenancy by sufferance into a tenancy from year to year. See Ram Chandra Singh v. Bhikhambar Singh (1910) 87 Cal. 674. Now on the admitted facts of the case the landlord accepted rent from Doman and Chattur and after the death of Doman from Chattur up to the year 1899. It follows that the landlord did indicate his assent to the continuance of the tenancy, and in my opinion the receipt of rent by the landlord was sufficient to convert the tenancy by sufferance into a tenancy from year to year.

3. It was then contended by Mr. De that there was, at the utmost, a tenancy in favour of Chattur up to the end of the year 1899 and that Doman and Chattur were not tenants from year to year but that they were tenants for the years for which they paid rent to the landlord. The argument of Mr. De is based upon the terms of S. 107 of the Transfer of Property Act, which provides that a lease of immoveable property from year to year can be made only by a registered instrument. The question, however, is not whether a lease from year to year was created in favour of the predecessors-in-title of the defendants by the landlord, but whether there was by implication of law a lease from year to year in favour of the predecessors-in-title of the defendants. Let it be assumed that upon the expiry of the lease in 1875 there was no valid lease in favour of the defendants or of their predecessors in title, and that the position of Doman and Chattur and after the death of Doman, of Chattur, was not higher than that a lessee for one year who held over at the end of the last year for which he paid rent. His rights must still be tested by a reference to the provisions of S. 116 of the Transfer of Property Act. Now, S. 116 of the Transfer of Property Act provides that if a lessee remains in possession of the demised property after the determination of the lease and the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuing in possession, the lease in the absence of agreement to the contrary is renewed from year to year or from month to month according to the purpose for which the property is leased as specified in S. 106. The question then is not whether there is a lease from year to year under S. 107, Transfer of Property Act, but what is the effect of holding over under S. 116 of the Transfer of Property Act. There is no doubt, in my opinion, that the effect of holding over upon payment of rent to the landlord is this that we must recognize the defendants as coming within the provision of S. 116 of the Transfer of Property Act. That being so, they must be regarded as tenants from year to year; and such a tenancy is determinable only by six months' notice expiring with the end of a year of the tenancy. In my opinion limitation began to run on the expiry of the notice to quit which was served by the plaintiff upon the defendants.

4. It is the case of the defendants that the notice to quit was served on them some time in 1904, and that even on the hypothesis that the defendants are tenants from year to year the suit is barred by limitation. The learned Subordinate Judge has, however, come to the conclusion that there was no notice at all in 1904, but that the first notice was in September 1909. It is quite true that the defendants have produced a notice which bears date the 9th September 1904, but it is worthy of note that the defendants have not produced the Hindi notice corresponding to the English portion nor have they produced the notice which was served upon them in 1909. The plaintiff's case is that the notice produced by the defendants was served on them in 1909 and that the date in the notice was by mistake written as 1904 instead of 1909. The learned Subordinate Judge has given good reasons for accepting the explanation offered by the plaintiff and I see no reason whatever to differ from him on this point. If the notice was in fact served upon the defendants in September 1909, then, there is no question that the suit is well within time.

5. The question as to whether the defendants acquired a title by adverse possession must also be decided against the defendants. The position of the defendants was that of the tenants and, as the learned Subordinate Judge has pointed out, mere non-payment of rent is not equivalent to an assertion of a hostile title to the knowledge of the landlord.

6. I would dismiss this appeal with costs.

John Bucknill, J.

7. I agree.