Fazl Ali, J.:— This appeal arises out of a suit which was decreed in part by the Additional Subordinate Judge of Hazaribagh but has been dismissed in its entirety by the Judicial Commissioner of Chota Nagpur. The appellants (who are the sons of the original plaintiff and were substituted in his place upon his death during the pendency of this appeal) are admittedly the proprietors of Taluk Jagodih which includes village Phulwaria, the subject matter of the present suit. This village was granted by one Raja Bed Khan by way of khorposh or maintenance to his son Jobraj Khan long ago and in 1864 Jobraj Khan granted a mukarrari in respect of it (subject to the payment of a quit rent) to a certain person whose interest has now passed to the defendants. As the grant of Raja Bed Khan was determinable on the extinction of the male line of the grantee and according to the plaintiff such an event did happen on the death of Jobraj Khan, the plaintiff in the year 1918 sent a notice to the defendants asking them to give up possession of the disputed village. The defendants, however, refused to give up possession and so the plaintiff brought the present suit which has been dismissed by the learned Judicial Commissioner. Now, it seems to have been conceded before the learned Judicial Commissioner that the disputed village was liable to be resumed upon the death of Jobraj Khan and that he had died without male issue about forty years ago. The only material plea that was raised before him was one of limitation and it was dealt with by him in these words:

The final position, therefore, is as follows: (1) Jobraj Khan died 40 years ago, (2) plaintiff became aware of this fact, or can be reasonably expected to have become aware of this fact, shortly afterwards, (3) defendants admittedly continued in possession of the disputed land for 40 years after Jobraj's death without notice from the plaintiff to quit, (4) during this time defendants' possession was that of a trespasser, and not that of a tenant, and (5) therefore defendants have been in adverse possession of the land for more than the statutory period of 12 years with the result that plaintiff is now debarred from ejecting them therefrom under the law.

2. The learned Judicial Commissioner has nob stated clearly what precise evidence there is in the case to show that shortly after Jobraj Khan had died, the plaintiff became aware of his death; but even assuming that he has correctly surmised the position, the inference of law which he draws from the facts before him appears to me to be not correct. The fact which ought to be borne in mind in determining the question of limitation is that according to both parties' case, the defendants have continued to pay rent to the plaintiff since the death of Jobraj Khan in the same manner as they used to pay it to him before his death. It was therefore urged on behalf of the plaintiff before the Judicial Commissioner that the case came within the application of Section 116 of the Transfer of Property Act, and the result of the continued payment of rent by the defendants was that when the lease was determined on the death of Jobraj Khan, a new tenancy was created by reason of the plaintiff accepting rent from the defendants, such a tenancy being in law a tenancy from year to year. The learned Judicial Commissioner held that Section 116 of the Transfer of Property Act, had no application to the case for the reason that the defendants were never in the position of lessees under the plaintiff and he quoted in support of his opinion a passage from the decision of Jwala Prasad, J. in 4 Pat 139.1

3. Now, even though S. 116 may not be directly applicable to this case, we have still to consider the legal effect of the acceptance of rent by the plaintiff after the mukarrari grant by Jobraj Khan to the defendants' predecessors-in-interest became a defunct instrument, because the case of the contesting respondent in the Court below seems to have been that merely by such acceptance of rent all the terms of the mukarrari lease granted by Jobraj Khan to the predecessors-in-interest of the defendants became binding upon the zamindar. I think that the answer to the problem is provided by the decision of the Judicial Committee in 27 Cal 156.2 In that case a zamindar had granted a village to his nephew for maintenance, the grant operating only for life. The grantee survived the grantor and by an ekrarnama acknowledged the succeeding zamindar to be entitled to the village. He had, however, already executed a patta in favour of a third person describing him to be a permanent lessee and the zamindar who succeeded the grantor accepted rent from him at the rate stipulated in the patta and did not disturb his possession for some time after the death of the original grantor. Nevertheless when the zamindar subsequently claimed the village as part of the inherited zamindari, it was held: (1) that the original grant not having extended to more than the life of the grantee, the patta was void as against the successor in title of the grantor; and (2) that the acceptance of rent at the rate provided in the patta could not have the effect of confirming the document in its entirety. Now, the decision of the Judicial Committee appears to me to cover fully the points raised in the present case. It is clear that the duration of the mukarrari granted by Jobraj Khan could not exceed that of the original grant and from the mere fact that the plaintiff continued to accept rent from the defendants, it cannot be inferred that he confirmed all the terms of the mukarrari in favour of the defendants. The law on the subject has been stated in Woodfall's Law of Landlord and Tenant in these words:

If a man enters upon a void lease, he is not a disseisor but a tenant-at-will under the terms of the lease in all other respects except the duration of time; and when he pays or agrees to pay any of the rent therein expressed to be reserved, he becomes a tenant from year to year upon the terms of the void lease so far as they are applicable to and not inconsistent with a yearly tenancy.

4. Thus the effect in law of the payment of rent by the defendants to the plaintiff and its acceptance by the latter was that a new tenancy which was similar in all other respects to the original tenancy of the defendants under Jobraj Khan except as to the duration of time was created and the defendants became tenants from year to year under him. If this view is correct, the mere fact that the plaintiff did not take any steps to eject the defendants at any earlier date after the death of Jobraj Khan does not make their possession adverse to him or entitle them to resist his suit for ejectment. The learned Judicial Commissioner has based his decision on 4 Pat 139 which if held to be applicable to the present case would have concluded the matter, because that decision has been affirmed by the Judicial Committee of the Privy Council: see, 7 Pat 649.3 But the distinguising feature of that case is that no new tenancy had been brought into existence in that case inasmuch as the zamindar used to grant receipts only in the marfatdari form, that is to say, in the name of the original mukarraridar and not in the name of the persons who held the lands after the mukarrari had become void by the death of the original grantor. This aspect of the case was particularly emphasised by the Judicial Committee as will appear from their following observations:

In their Lordships' opinion this appeal must be decided upon the special facts of the case which go to show, as already stated, that after the lease for lives expired, the plaintiff's predecessor in title did not recognize the heirs of the mukarraridars as tenants. He was aware of the position taken up by the heirs of the original mukarraridars and the permanent right which they claimed and which they were desirous of establishing, and he was at pains not to do anything which might be taken to recognize that liability. The parties were really at arms length. The original lessees were asserting their permanent interest with a liability to pay a rent, a right which the Maharaja refused to recognize, but which they continued to assert consistently…. It is argued that the principle contained in the provisions of Section 116 of the Transfer of Property Act, 1882, should be applied, for although it could not be said that this case came expressly within the provisions of the section, it was argued that the provisions thereof should be used by way of analogy as laying down a rule of equity and good conscience. In their Lordships' opinion there is not a case of lessee or under-lessee holding over within the meaning of the section, but even if the case were to be considered on the assumption that the provisions of the section were applicable, the facts of this case would go to show, as already stated, that the parties in paying and accepting rent after the expiration of the lease for lives were acting without prejudice to their respective contentions, and it would have to be held that there was an agreement to the contrary which would prevent the application of the provisions of the section in the present case.

5. These observations cannot apply to the present case, because here the plaintiffs by accepting rent from the defendants have treated them as their tenants and beyond the payment of rent there is nothing in the present case to show that the defendants ever asserted their permanent interest in the land after the death of Jobraj Khan. There can therefore be no doubt that the plaintiffs is entitled to eject the defendants and the only question is whether a decree for ejectment can be passed in this suit.

6. It may be stated here that when the case was before the Munsif, defendants 11 and 19 to 22 entered into a compromise with the plaintiff and he rightly decreed the suit in terms of the compromise. The Munsif however found that there was no proper service of notice to quit on the defendants and so he disallowed the plaintiff's claim for khas possession in respect of the 14 annas share in the disputed village which belonged to the defendants other than defendants 11 and 19 to 22, but he passed a decree declaring that the plaintiff was the owner of the village in question and the defendants had no right to remain in possession thereof. As the finding of the trial Court as regards the service of notice has not been challenged before us, the proper order to be passed in this appeal seems to be to restore the decree of the trial Court. It is true that ordinarily a Court would not grant a merely declaratory relief when the consequential relief claimed by the plaintiff can not be granted. In the present case however the title of the parties having been fully investigated in the course of this somewhat prolonged litigation, I am inclined to think that the plaintiff ought to get a decree in the terms in which the Munsif had granted it to him. I would therefore allow the appeal, set aside the judgment and decree of the lower appellate Court and restore the decree of the trial Court. As no one appears in this Court to contest the appeal, there will be no order for costs.

Dhavle, J.:— I agree. If the principle of Section 116 of the Transfer of Property Act, were to be applicable to this case, it would have been open to the plaintiff to show that there was no tenancy, because he accepted the rent in ignorance of the fact that the tenancy had terminated. The lower appellate Court has apparently found on mere surmise that the plaintiff became aware of Jobraj Khan's death and the consequent termination of the khorposh grant shortly after that event; but even if this finding had been based on evidence, the decision relied on by the learned Munsif—27 Cal 156 — makes it clear that the continued acceptance of rent from the defendants could not, in the circumstances of the case, give them the permanent interest claimed by them; and as my learned brother has shown, the decision in 4 Pat 139 is distinguishable on the facts.

S.C/R.K

7. Appeal allowed.