CIVIL APPELLATE JURISDICTION Appeal (Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 1st April, 1948, in Appeal No. 365 of 1947 reversing a judgment of the Joint Civil Judge at Ahmedabad, dated 14th October, 1947, in Suit No. 174 of 1945. Somayya (Jindra Lal, with him) for the appel- lants. K. Daphtary (Sri Narain Andley, with him) for the respondents. 1951. February 23.
The judgment of the Court was deliv- ered by MAHAJAN J. - The appellants are owners of a property known as Bharat Bhuvan Theatre at Ahmedabad. The respond- ents are the lessees of the said theatre. The term of the lease was to expire on the 2nd December, 1945, unless the lessees gave to the land lords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years.
On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts. This suit was decreed on the 14th October, 1947, on the following findings (1) that the respondents had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act.
An enquiry was directed into the amount of mesne prof- its. The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947. The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.
The judgment and decree of the Joint Civil Judge were reversed and the plaintiffs suit was dismissed. The High Court affirmed the finding of the trial court on the first point and held in agreement with it that the respondents had not proved that they gave three months previous notice in writing to the appellants for renewal of the lease as required by clause 4 (2) of the lease. It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
Finally, it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII of 1947 the appellants were not enti- tled to recovery of possession of the suit premises. Being aggrieved by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949, and it is now before us for decision. It was contended before the High Court that the appeal being in the nature of a rehearing, it should be decided in accordance with the provisions of Act LVII of 1947 which came into force on the 13th February, 1948, and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial court.
In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal.
The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents. Learned counsel for the appellants challenged the deci- sion of the High Court before us on three grounds (1) that assuming that the appeal had to be decided by the High Court in accordance with the provisions of Act LVII of 1947, the provisions of that Act had no application to pending ap- peals which had been excluded from its ambit (9,)that Act LVII of 1947 had been amended by Bombay Act III of 1949 and that the appeal pending in this court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act LVII of 1947 and (3) that the High Court wrongly reversed the trial courts finding that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
The learned counsel for the respondents besides controverting the contentions raised on behalf of the appellants contended that both the courts had erred in holding that the respondents had not proved that they exer- cised the option of renewal of the lease according to the stipulations contained therein. In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947. The question to decide is whether the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February, 1948, has applica- tion to pending appeals or whether its retrospective effect is limited to cases mentioned in section 50 of the Act.
The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in any way shakes that finding. The case must therefore be decided on the assump- tion that the respondents did not exercise the option given to them under the lease for its renewal. We are also not impressed with the argument of the learned counsel for the appellants that the High Court wrongly reversed the finding of the trial Judge on the point that the respondents commit- ted breaches of the terms of the tease. We should not howev- er be taken to concur in all the reasons given by the High Court for reversing that finding.
Whether the High Court was right in holding that the provisions of Act LVII of 1947 have application to appeals pending at the time when that Act came into force the answer to this question depends on the construction to be placed on sections 12 and 50 of Act LVII of 1947. Section 12 of the Act is in these terms-
 A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
 No suit for recovery of possession shall be insti- tuted by a landlord against a tenant on the ground of non- payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. No decree for eviction shall be passed in any such suit if, at the hearing. of the suit, the tenant pays or tenders in court the standard rent or permitted increases then due together with the costs of the suit.
 Explanation--In any case where there is a dispute as to the amount of standard rent or permitted increases recovera- ble under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the court under sub-section (3) of section 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the court. This is the substantive section giving protection to the tenant against ejectment.
 Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section. It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows-- Provided that all suits and proceedings (other than execution proceedings and appeals) between a landlord and a tenant relating to the recovery or fixing of rent or posses- sion of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applies, which are pending in any Court, shall be transferred to and continued before the courts which would have jurisdiction to try such suits or proceed- ings under this Act, and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.
 Provided further that-- (a) every order passed or act done by the Control- lers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Con- trollers under this Act The High Court held that section 50 merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded be- cause no question could arise of their being transferred from one court to another and that an appeal being a contin- uation of the suit and in the nature of a re-hearing, the provisions of section 12 should be applied to pending ap- peals.
 The opinion expressed by the Division Bench on the construction of sections 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal (J), and the matter was referred to a Full Bench. The Full Bench overruled the decision reached by the Division Bench on the construction of section 50 and observed that it was clear that in terms the provi- sions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are trans- ferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in section 50 of the Act.
 We are in respectful agreement with the view expressed by the Full Bench. On a plain reading of the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of section 50 and there- upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings fully bear out this construction. Mr. Daphthary contended that the whole object of section 50 was to make provision for transfer of pending cases to courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that section 12 of the Act which gives protection to tenants should
 A. I. R. 1949 Bom. 210. be construed as having retrospective effect. In our opinion this contention is not sound. Section 50 cannot be de- scribed as a section providing merely for transfer of pend- ing cases to courts having jurisdiction to deal with them. It is on the other hand a repeal section in the new stat- ute.
 It repeals the two earlier statutes, and while repeal- ing them it provides that the repeal shall not affect executions and appeals and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jurisdiction to hear them under section 28 of the Act. We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force.
 It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit and not in any suit. Such suit can only be a suit referred to in subsec- tions (2) and (3) of section 12.
 DECISION ??

We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective.

section 12 is in terms prospective and not retrospective

the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts.

The case must therefore be decided on the assump- tion that the respondents did not exercise the option given to them under the lease for its renewal

In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947.

Such suit can only be a suit referred to in subsec- tions (2) and (3) of section 12

The appellants are owners of a property known as Bharat Bhuvan Theatre at Ahmedabad. The respond- ents are the lessees of the said theatre

On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts

The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947

The judgment and decree of the Joint Civil Judge were reversed and the plaintiffs suit was dismissed.

Being aggrieved by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949

The case must therefore be decided on the assump- tion that the respondents did not exercise the option given to them under the lease for its renewal.

The appellants are owners of a property known as Bharat Bhuvan Theatre at Ahmedabad. The respond- ents are the lessees of the said theatre.

On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts.

Section 50 cannot be de- scribed as a section providing merely for transfer of pend- ing cases to courts having jurisdiction to deal with them.

It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.

In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947.

This is the substantive section giving protection to the tenant against ejectment.

Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section.

We are in respectful agreement with the view expressed by the Full Bench

In our opinion this contention is not sound.

An enquiry was directed into the amount of mesne prof- its.

The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947.

The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents.

We should not howev- er be taken to concur in all the reasons given by the High Court for reversing that finding.

We are in respectful agreement with the view expressed by the Full Bench.

other than execution proceedings and appeals

that the High Court wrongly reversed the trial courts finding that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease


CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 17 of 1951. Appeal against a Judgment and. Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in Criminal Revision No. 1533 of 1950
 P. Sinha (P.S. Safeer and K.N. Aggarwal, with him) for the appellants. The respondent did not appear. 1951. May 24. The Judgment of the Court was delivered by PATANJALI SASTRI J.--This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial.
 The appellants were prosecuted for alleged offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian Penal Code at the instance of one Polai Lal Biswas who lodged a complaint against them before the po- lice.
 The prosecution case was that, while the complainant was harvesting the paddy crop on his field at about 10 a.m. on 29th November, 1949, a mob of about fifty persons came on to the field armed with ballams, lathis and other weapons and that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the complainant and ,said he would not allow the paddy to be removed unless the disputes were settled. An altercation followed as a result of which Logendra or- dered an assault by his men. Then Logendra and one of his men, Harihar, gave ballam blows to one of the labourers, Kangali, who fell down and died on the spot.
 Information was given to the police who investigated the case and submitted the charge-sheet. The committing Magistrate found that a prima facie case was made out and committed the appellants to the Court of Sessions for trial. The appellants pleaded not guilty alleging inter alia, that Mohender and Debender, the brothers of Logendra (appel- lants 2 and 3) were not present in the village of Dandkhora with which they had no concern, as all the lands in that village had been allotted to Logendra at a previous parti- tion, that Logendra himself was not in the village at the time of the occurrence but arrived soon after and was dragged to the place at the instance of his enemies in the village and was placed under arrest by the Assistant Sub-Inspector of Police who had arrived there previously.
 It was also alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the complainant, and the other by Logendra and there had been numerous revenue and criminal proceedings and long-standing enmity between the families of these leaders as a result of which this false case was foisted upon the appellants.
 The learned Sessions Judge examined the evidence in great detail and found that the existence of factions as alleged by the appellants was true. He found, however, that the appellants plea of alibi was not satisfactorily made out, but the truth of the prosecution, he proceeded to observe, cannot be judged by the falsehood of the defence nor can the prosecution derive its strength from the weak- ness of the defence. Prosecution must stand on its own legs and must prove the story told by it at the very first stage. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be convicted.
 Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land and had raised the paddy crop which he was harvesting when the occurrence took place, the learned Sessions Judge examined the evidence of the prosecution witnesses who belonged to the opposite faction critically and found that the story of the prosecu- tion was not acceptable. Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother Parasmani who brought him up from his childhood, was only 19 years old and unmarried and was still living with his grandmother.
 He did not claim to be a bataidar of any other person. In these circumstances, said the learned Judge, it does not appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamus land in the lifetime of his nani who has brought him up from his infancy like her own child. Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of run- ning batai cultivation of the lands of his mamu where he has been living since his childhood without any trouble, more particularly in view of the heavy expenses of cultivation brought out by the evidence of Tirthanand (P.W. 14).
 He, therefore, disbelieved the whole story that Polai had taken the lands of his grandmother or his uncles as bataidar for cultivation and that he was engaged in harvesting the paddy crop on the lands at the time of the occurrence.
 This false story, in his opinion, vitally affected the prosecution case regarding the alleged manner of the occurrence. He also found a number of discrepancies and contradictions in the evidence of the prosecution witnesses, which, in his view, tended to show that the prosecution was guilty of concealment of the real facts.
In view of such conceal- ment of real facts, the learned Judge concluded, it does not appear to me to be possible to apportion liability and to decide which of the two parties commenced the fight and which acted in self-defence. Such being the position, it is not possible at all to hold either party responsible for what took place. In such a view of the matter coupled with the fact that the manner of occurrence alleged by the prose- cution has not been established to be true beyond doubt, I think that the accused persons cannot be safely convicted of any of the offences for which they have been charged.
The learned Judge accordingly acquitted the appellants of all the charges framed against them. Against that order the complainant Polai preferred a revision petition to the High Court under section 439 of the Criminal Procedure Code., The learned Judge who heard the petition reviewed the evidence at some length and came to the conclusion that the judgment of the learned Sessions Judge could not be allowed to stand as the acquittal of the appellants was perverse .
In his opinion, the entire judgment displays a lack of true perspective in a case of this kind. The Sessions Judge had completely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the case is concerned, and there was no justifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai. And he concluded with the warning I would, however, make it per- fectly clear that when the case is re-tried, which I am now going to order, the Judge proceeding with the trial will not be in the least influenced by any expression of opinion which I may have given in this judgment.
On behalf of the appellants Mr. Sinha raised two conten- tions. In the first place, he submitted that having regard to section 417 of the Criminal Procedure Code which provides for an appeal to the High Court from an order of acquittal only at the instance of the Government, a revision petition under section 439 at the instance of a private party was incompetent, and, secondly, that sub-section (4) of section 439 clearly showed that the High Court exceeded its powers of revision in the present case in upsetting the findings of fact of the trial Judge.
We think it is unnecessary to express any opinion on the first contention of Mr. Sinha especially as the respondent is unrepresented, as we are of opinion that his second and alternative contention must prevail. It will be seen from the judgment summarised above that the learned Judge in the High Court re-appraised the evi- dence in the case and disagreed with the Sessions Judges findings of fact on the ground that they were perverse and displayed a lack of true perspective.
He went further and, by way of expressing in very clear terms as to how perverse the judgment of the court below is, he indicated that the discrepancies in the prosecution evidence and the circum- stances of the case which led the Sessions Judge to discred- it the prosecution story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case.
We are of opinion that the learned Judge in the High Court did not properly appreciate the scope of inquiry in revision against an order of acquittal. Though sub-section(1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to convert a finding of acquittal into one. of conviction.
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him.
By merely characterising the judgment of the trial Court as perverse and lacking in perspective, the High Court cannot reverse pure findings of fact based on the trial Courts appreciation of the evidence in the case.
DECISION ??

as we are of opinion that his second and alternative contention must prevail.

On behalf of the appellants Mr. Sinha raised two conten- tions

we are of opinion that his second and alternative contention must prevail.

The learned Judge accordingly acquitted the appellants of all the charges framed against them.

An altercation followed as a result of which Logendra or- dered an assault by his men.

Prosecution must stand on its own legs and must prove the story told by it at the very first stage.

Such being the position, it is not possible at all to hold either party responsible for what took place.

Information was given to the police who investigated the case and submitted the charge-sheet.

He did not claim to be a bataidar of any other person.

This false story, in his opinion, vitally affected the prosecution case regarding the alleged manner of the occurrence.

In his opinion, the entire judgment displays a lack of true perspective in a case of this kind.

On behalf of the appellants Mr. Sinha raised two conten- tions.


Fazl Ali, J. The principal question for determination in this appeal is whether a certain lease had validly terminated by efflux of time or whether there was holding over by the lessee of the leasehold property as contemplated in section 116 of the Transfer of Property Act. The circumstances under which this question and several subsidiary questions to which reference will be made later have arisen may be briefly stated as follows
 The Province of Bengal, (hereinafter referred to as the respondent No. 1 or plaintiff) is admittedly the owner of an area of 1125 bighas and odd of land in village Akra. On the 17th February, 1928, the respondent No. 1 executed a lease (exhibit 3) in respect of the said land for 10 years for manufacture of bricks in favour of the appellant, at a rental of Rs. 6,000 a year. The lease was to commence from the 24th February, 1928, and a years rent was payable in advance. By the terms of the said lease, the lessee was prohibited from assigning or subletting the premises or any part thereof without the consent of the lessor except to a limited company and the lease also contained a general provision that the lessee would at the expiration of the lease restore to the lessor the demised premises in as good condition as it was at the date of the lease, reasonable wear and tear excepted. Two further clauses in the lease, which are material for the decision of this appeal, may be reproduced verbatim -
 Clause 11 of Part I of the Schedule. The Secretary of State reserves the right to terminate the lease at any time subject to six months notice in the event of the lessees failing to observe and duly perform the conditions hereinbefore and after mentioned and it is hereby agreed that the lessee shall before the expiration or prior termination of the lease hereby granted remove his boilers engines trucks kilns railway and tram lines bricks tools and plant and all other materials whatsoever and yield up the said demised premises unto the Secretary of State and that those bricks tools and plant and other materials that shall not be removed before such expiration or prior termination shall become the property of the Secretary of State. Clause 1 of Part III of the Schedule. The lessee shall be at liberty to keep on the said premises hereby demised for three months after the expiration or prior termination of the term of this lease any bricks boilers engines trucks kilns railway and tram lines and all other materials whatsoever as may have been manufactured by him in the premises in accordance with the conditions of these presents but any bricks and other materials left in contravention to this condition shall become the absolute property of the Secretary of State without payment. It may be stated here that at the time of the execution of the lease, the lessee had purchased from the lessor for Rs. 50,000 all the boilers, engines, trucks, kilns, railway and tramway lines and all other movable property, plant and machinery on the demised premises. The case of the respondent No. 1, who is the plaintiff in the present litigation, is that the appellant (defendant No. 1) had, in contravention of the terms of the lease, sublet the brickfield to defendants-respondents 2 to 18 without the consent of respondent No. 1, and they had caused serious damage to the brickfield in general and failed to maintain the embankments, sluices, etc. in proper repair resulting in a total loss of Rs. 16,840. It was further alleged that the defendants had refused to deliver possession though the lease had terminated, and they had not removed the bricks, pugmills and other materials within 3 months from the termination of the lease. On these allegations, the respondent No. 1 prayed for the following reliefs -
 (a) a decree for ejectment and khas possession over the brickfield
 (b) damages amounting to Rs. 4,000 for the period between the termination of the lease and institution of the suit and mesne profits for the subsequent period
 (c) a decree for Rs. 16,840 for damages caused to the field and
 (d) a decree for permanent injunction restraining the defendants from removing or otherwise disposing of the bricks, pugmils, etc. which were claimed to have become the property of the plaintiff. The suit was contested by the appellants, and the other defendants, and their defence was that the appellants had held over with the implied consent of respondent No. 1, and hence the lease had not validly terminated, that no damage or injury had been caused to the land, that the respondent No. 1 was not entitled to forfeit the properties of the appellants lying in the brickfield inasmuch as the term in the lease to that effect was by way of penalty and as such unenforceable, and that the respondent No. 1 was not entitled to the relief of injunction. The trial Judge by his judgment dated the 24th November, 1941, held that there was no holding over with the assent of the plaintiff and both parties were under a mistaken belief that the lease had expired on the 23rd February, 1938. He however held that the evidence did not show that there was any damage or injury caused to the property.
 On these findings, the suit was decreed in part, and the respondent No. 1 was directed to be put in possession of the brickfield and was also granted a decree for Rs. 4,000 as mesne profits up to the date on which the respondent No. 1 was put in possession. The prayer for damages for injury alleged to have been caused to the field and the prayer for injunction were however disallowed. The trial Judge allowed the appellants 3 months time to remove their belongings from the Akra brickfield including kilns, pugmills, bricks, coals and any other brick-making material that may be lying there after this period these properties, if any, left in the field. Were to become the absolute properties of the plaintiff. The appellants thereafter preferred an appeal to the High Court at Calcutta, and the respondent No. 1 also preferred a cross-objection claiming that the prayer for injunction should have been allowed and the claim for damages should have been decreed in full. The learned Judges of the High Court who heard the appeal, by their judgment dated the 13th February, 1948, dismissed the appellants appeal and allowed the cross-objection of the respondent No. 1 in part. They held that on the facts established in the case there was no holding over, and that the clause in the lease stating that if the appellants did not remove the bricks etc. from the field within 3 months after the termination of the lease they would become the property of respondent No. 1, was not a clause by way of penalty and should be given effect to. They further held that the claim of respondent No. 1 for damages for injury caused to the demised premises was not established. The present appeal is directed against the judgment of the High Court. The admitted facts of the case are briefly these. The appellants duly paid Rs. 6,000 as rent to respondent No. 1 in February, 1928. In February, 1929, a sum of Rs. 6,714 and odd was paid by the appellants as rent for the period 17th February, 1929, to the 31st March, 1930, and thereafter they continued to pay Rs. 6,000 as rent for the yearly period, 1st April to 31st March of the succeeding year, and the last payment was made in April, 1937, by means of a cheque sent with a covering letter, the material portion of which runs as follows - We beg to enclose herewith a cheque for Rs. 6,000 in payment of rent Akra brickfield for the year 1937-38 ending 31st March, 1938, and shall thank you to please favour us with your formal receipt for the above. The cheque was duly cashed and the amount was entered in the cash book of the plaintiff in the following terms - 5-4-37 (date of receipt). Received without prejudice from Karnani Industrial Bank Ltd. on account of yearly rent for Akra brickfield for the year ending 31st March, 1938. On the 27th August, 1937, the appellants applied to the Secretary to the Government of Bengal, Public Works Department, for renewing the lease for a further period of 10 years, but no reply was received to that letter. After addressing several other letters, the appellants received a letter dated the 23rd February, 1938, with which was enclosed a copy of an extract from a letter addressed by the Executive Engineer, Suburban Division to the Assistant Engineer, No. III Sub-division, which was as under - He is requested to make arrangements with Messrs.
 Karnani Industrial Bank Limited for vacant possession of the Akra brickfield on the 24th instant as the lease with the Bank will expire on the 23rd instant according to the terms of the agreement. Ultimately, on the 17th March, 1938, the appellants received the following communication from the Excecutive Engineer, Suburban Division - I would inform you that it is not the intention of Government in this Department to lease out the brickfields and arrangement is being accordingly made to make over the lands to the Government in the Revenue Department for disposal. In a subsequent letter dated the 14th September, 1938, the Executive Engineer wrote to the appellants as follows - I am instructed to state that Government have decided that you cannot be allowed to continue in occupation of the premises any further However, as a matter of grace Government will allow you time till the 30th day of September next, to dismantle the kilns and to remove all your bricks, boiler etc. from the site, on which date Government will take over possession of the property from you. The correspondence to which reference has been made does not show that at any point of time the plaintiff had assented to the appellants continuance of possession. On the other hand, some of the letters written by the appellants show that, notwithstanding their having paid rent up to the 31st March, 1938, they had proceeded all along on the footing that the lease was to expire in February, 1938. For instance, in the appellants letter of the 23rd August, 1937, it is stated we are desirous of renewing the lease of the brickfield for a further period of 10 years from the date of the expiration of the period of the lease dated 17-2-1928. Again, in the letter dated the 23rd October, 1937, reference is made to the appellants application for renewal of the lease for a further period of 10 years on its expiry. Even in the letter which was written on behalf of the appellants on the 3rd March, 1938, after the expiry of the date on which the lease was to terminate, the statement made in the earlier letters was repeated, and it was further stated we applied for renewal of the lease on the 23rd August, 1937, six months prior to the date of expiration of the lease. In this letter, it is nowhere suggested that the appellants were holding over by reason of the acceptance of rent up to the 31st March, 1938. On the other hand, at the end of this letter, we find the following statement - We therefore pray that if the Government is not at all inclined to renew the lease, time may be granted to us for dismantling and removing till the end of December, 1938, and we shall pay the proportional rent to the Government for seven months time in pursuance of the terms of the lease. The reference to the period of 7 months shows that it was assumed that the lease had expired in February, 1938. The letters written on behalf of the Government point to the same conclusion, namely, that both the parties were acting on the assumption that the lease was to expire on the 23rd February, 1938. For instance in a letter written on behalf of the Government on the 25th February, 1938, the following statement is made - I have the honour to inform you that none of your agents was present at the Akra brickfield today as previously arranged to make over the possession of the brickfields. You are therefore requested to please inform me about as to what arrangements are being made by you to make over the possession of the said brickfield to this department. The term of lease expires on the afternoon of the 23rd February, 1938. Apart from the fact that the appellants did not set up in any of their letters a case of holding over, we have to see whether the plea can be said to have been successfully made out by them. There is no doubt that the appellants have established that the rent was paid on their behalf up to the 31st March, 1938, and it was accepted by the respondent No. 1. It has also been established that this payment was made by a cheque and that cheque has been cashed by the Government. Section 116 of the Transfer of Property Act, on which reliance was placed on behalf of the appellants, runs as follows - If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased
 This section was construed by the Federal Court in K. B. Capadia v. Bai Jerbai Warden and Another 1959 F.C.R. 262, and it was held that where rent was accepted by the landlord after the expiration of the tenancy by efflux of time, section 116 applied even though the landlord accepted the amount remitted to him as part deposit towards his claim for compensation for illegal use and occupation, and without prejudice to his rights. It is to be noted that in that case rent had been accepted after the expiry of the tenancy. In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important that here the payment of rent up to the 31st March, 1938, was made not after the date of expiry of the lease, but on the 5th April, 1937, nearly a year before the expiry of the lease. A reference to section 116 of the Transfer of Property Act will show that for the application of that section, two things are necessary - (1) the lessee should be in possession after the termination of the lease and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. The use of the word otherwise suggests that acceptance of rent by the landlords has been treated as a form of his giving assent to the tenants continuance of possession. There can be no question of the lessee continuing in possession until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Both the courts below, after dealing with the matter elaborately, have concurrently held that in the circumstances of the case the consent of respondent No. 1 to the appellants continuing in possession cannot be inferred, and we agree with this finding.
 It was pointed out to us on behalf of the respondent that the entry relating to this payment in the books of the plaintiff contains the words received without prejudice from Karnani Industrial Bank The same words however occur in several earlier entries, and we are not inclined to attach any special significance to them. But it seems to us that the very fact, that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act. There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease, and nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6,714 and odd, and the payment was made in respect of rent up to the 31st March, 1930. After this, all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the plaintiff filed an application on the 6th November, 1941, for amending the plaint so as to include the following statement - The plaintiff submits that even assuming that the registered lease terminated on the 23rd February, 1938, by an agreement between the plaintiff and the defendant No. 1, the latter was allowed to hold over up to the 31st March, 1938.
 This application however was rejected, because it was made at a very late stage, that is to say, after the defendants evidence had been closed and an adjournment had been granted to the plaintiff to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to the 31st March, 1938. In this view, the respondent No. 1 became entitled to re-enter after the 31st March, and no notice under section 106 of the Transfer of Property Act was necessary. In the circumstances, the decree for ejectment passed by the courts below must be upheld. The next question which arises in the case turns on the proper construction of clause 11 of Part I and clause 1 of Part III of the lease, which have already been quoted. It seems to us that clause 11 should be read as a whole, and, when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, in the event of the lessee failing to observe and duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines and all other materials and yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is clause 1 of Part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause, as we have seen, provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that any bricks and other materials left in contravention of this condition shall become the absolute property of the Secretary of State without payment. There can be no doubt that under this clause, the bricks and other materials have become the absolute property of the plaintiff.
 The only question is as to the meaning of other materials. It seems to us on an examination of the lease as a whole that there must be a distinction between materials, and machinery and tools and similar articles, and the words other materials have no reference to engines, trucks, railway and tramway lines and plant. They mean building materials such as bricks, tiles and similar articles that might have been manufactured by the appellants on the demised premises. That being so, the decree under appeal should be modified accordingly. The only other point which arises for consideration relates to the plaintiffs prayer for a decree for permanent injunction against the defendants, to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the appellants that the respondent No. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them and possession over them, and in support of this proposition, the following cases were cited - Ratnasabhapathi Pillai and Others v. Ramaswami Aiyar I.L.R. 33 Mad. 482, Bhramar Lal Banduri and Others v. Nanda Lal Chowdhuri 24 I.C. 199 and Valia Tamburatti v. Parvati and Others I.L.R. 13 Mad. 455. After reading and fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks and other materials have become the property of the plaintiff, and there can be no legal objection to the granting of an injunction as prayed.
 DECISION ??

Both the courts below, after dealing with the matter elaborately, have concurrently held that in the circumstances of the case the consent of respondent No. 1 to the appellants continuing in possession cannot be inferred, and we agree with this finding.

But it seems to us that the very fact, that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act.

In the circumstances, the decree for ejectment passed by the courts below must be upheld.

There can be no doubt that under this clause, the bricks and other materials have become the absolute property of the plaintiff.

In the present case, it has been found that the bricks and other materials have become the property of the plaintiff, and there can be no legal objection to the granting of an injunction as prayed.

The only other point which arises for consideration relates to the plaintiffs prayer for a decree for permanent injunction against the defendants, to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed.

In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important that here the payment of rent up to the 31st March, 1938, was made not after the date of expiry of the lease, but on the 5th April, 1937, nearly a year before the expiry of the lease.

However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to the 31st March, 1938. In this view, the respondent No. 1 became entitled to re-enter after the 31st March, and no notice under section 106 of the Transfer of Property Act was necessary

The principal question for determination in this appeal is whether a certain lease had validly terminated by efflux of time or whether there was holding over by the lessee of the leasehold property as contemplated in section 116 of the Transfer of Property Act.

that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act.

The principal question for determination in this appeal is whether a certain lease had validly terminated by efflux of time or whether there was holding over by the lessee of the leasehold property as contemplated in section 116 of the Transfer of Property Act.

On the other hand, some of the letters written by the appellants show that, notwithstanding their having paid rent up to the 31st March, 1938, they had proceeded all along on the footing that the lease was to expire in February, 1938

at the end of this letter, we find the following statement - We therefore pray that if the Government is not at all inclined to renew the lease, time may be granted to us for dismantling and removing till the end of December, 1938, and we shall pay the proportional rent to the Government for seven months time in pursuance of the terms of the lease.

The reference to the period of 7 months shows that it was assumed that the lease had expired in February, 1938. The letters written on behalf of the Government point to the same conclusion, namely, that both the parties were acting on the assumption that the lease was to expire on the 23rd February, 1938

Apart from the fact that the appellants did not set up in any of their letters a case of holding over, we have to see whether the plea can be said to have been successfully made out by them.

There is no doubt that the appellants have established that the rent was paid on their behalf up to the 31st March, 1938, and it was accepted by the respondent No. 1. It has also been established that this payment was made by a cheque and that cheque has been cashed by the Government

it was held that where rent was accepted by the landlord after the expiration of the tenancy by efflux of time, section 116 applied even though the landlord accepted the amount remitted to him as part deposit towards his claim for compensation for illegal use and occupation, and without prejudice to his rights.

In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important that here the payment of rent up to the 31st March, 1938, was made not after the date of expiry of the lease, but on the 5th April, 1937, nearly a year before the expiry of the lease

Both the courts below, after dealing with the matter elaborately, have concurrently held that in the circumstances of the case the consent of respondent No. 1 to the appellants continuing in possession cannot be inferred, and we agree with this finding.

But it seems to us that the very fact, that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act

This clause is evidently not applicable to the present case. The clause which applies to this case is clause 1 of Part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time.

It seems to us on an examination of the lease as a whole that there must be a distinction between materials, and machinery and tools and similar articles, and the words other materials have no reference to engines, trucks, railway and tramway lines and plant.

They mean building materials such as bricks, tiles and similar articles that might have been manufactured by the appellants on the demised premises. That being so, the decree under appeal should be modified accordingly

The only other point which arises for consideration relates to the plaintiffs prayer for a decree for permanent injunction against the defendants, to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed.

In the present case, it has been found that the bricks and other materials have become the property of the plaintiff, and there can be no legal objection to the granting of an injunction as prayed.

In such a case, if the lessee did not remove the boilers, engines and all other materials and yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State

There can be no doubt that under this clause, the bricks and other materials have become the absolute property of the plaintiff.
 The only question is as to the meaning of other materials

The principal question for determination in this appeal is whether a certain lease had validly terminated by efflux of time or whether there was holding over by the lessee of the leasehold property as contemplated in section 116 of the Transfer of Property Act.

In the circumstances, the decree for ejectment passed by the courts below must be upheld.

There can be no doubt that under this clause, the bricks and other materials have become the absolute property of the plaintiff.

Two further clauses in the lease, which are material for the decision of this appeal, may be reproduced verbatim -
 Clause 11 of Part I of the Schedule.

On these findings, the suit was decreed in part, and the respondent No. 1 was directed to be put in possession of the brickfield and was also granted a decree for Rs. 4,000 as mesne profits up to the date on which the respondent No. 1 was put in possession.

The learned Judges of the High Court who heard the appeal, by their judgment dated the 13th February, 1948, dismissed the appellants appeal and allowed the cross-objection of the respondent No. 1 in part.

But it seems to us that the very fact, that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act.

In this view, the respondent No. 1 became entitled to re-enter after the 31st March, and no notice under section 106 of the Transfer of Property Act was necessary.

The next question which arises in the case turns on the proper construction of clause 11 of Part I and clause 1 of Part III of the lease, which have already been quoted.

That being so, the decree under appeal should be modified accordingly.

After reading and fully considering those cases, we find them to be wholly inapplicable to the present case.

It may be stated here that at the time of the execution of the lease, the lessee had purchased from the lessor for Rs. 50,000 all the boilers, engines, trucks, kilns, railway and tramway lines and all other movable property, plant and machinery on the demised premises.

It was further alleged that the defendants had refused to deliver possession though the lease had terminated, and they had not removed the bricks, pugmills and other materials within 3 months from the termination of the lease.

The trial Judge by his judgment dated the 24th November, 1941, held that there was no holding over with the assent of the plaintiff and both parties were under a mistaken belief that the lease had expired on the 23rd February, 1938.

He however held that the evidence did not show that there was any damage or injury caused to the property.

The prayer for damages for injury alleged to have been caused to the field and the prayer for injunction were however disallowed.

They further held that the claim of respondent No. 1 for damages for injury caused to the demised premises was not established.

On the 27th August, 1937, the appellants applied to the Secretary to the Government of Bengal, Public Works Department, for renewing the lease for a further period of 10 years, but no reply was received to that letter.

On the other hand, some of the letters written by the appellants show that, notwithstanding their having paid rent up to the 31st March, 1938, they had proceeded all along on the footing that the lease was to expire in February, 1938.

it is nowhere suggested that the appellants were holding over by reason of the acceptance of rent up to the 31st March, 1938.

The reference to the period of 7 months shows that it was assumed that the lease had expired in February, 1938.

The letters written on behalf of the Government point to the same conclusion, namely, that both the parties were acting on the assumption that the lease was to expire on the 23rd February, 1938.

Apart from the fact that the appellants did not set up in any of their letters a case of holding over, we have to see whether the plea can be said to have been successfully made out by them.

There is no doubt that the appellants have established that the rent was paid on their behalf up to the 31st March, 1938, and it was accepted by the respondent No. 1. It has also been established that this payment was made by a cheque and that cheque has been cashed by the Government.

In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important that here the payment of rent up to the 31st March, 1938, was made not after the date of expiry of the lease, but on the 5th April, 1937, nearly a year before the expiry of the lease.

A reference to section 116 of the Transfer of Property Act will show that for the application of that section, two things are necessary - (1) the lessee should be in possession after the termination of the lease and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession.

The use of the word otherwise suggests that acceptance of rent by the landlords has been treated as a form of his giving assent to the tenants continuance of possession.

Both the courts below, after dealing with the matter elaborately, have concurrently held that in the circumstances of the case the consent of respondent No. 1 to the appellants continuing in possession cannot be inferred, and we agree with this finding

This application however was rejected, because it was made at a very late stage, that is to say, after the defendants evidence had been closed and an adjournment had been granted to the plaintiff to adduce rebutting evidence.

However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to the 31st March, 1938.

In such a case, if the lessee did not remove the boilers, engines and all other materials and yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State.

This clause is evidently not applicable to the present case.

It seems to us on an examination of the lease as a whole that there must be a distinction between materials, and machinery and tools and similar articles, and the words other materials have no reference to engines, trucks, railway and tramway lines and plant.

They mean building materials such as bricks, tiles and similar articles that might have been manufactured by the appellants on the demised premises.

The only other point which arises for consideration relates to the plaintiffs prayer for a decree for permanent injunction against the defendants, to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed.

The circumstances under which this question and several subsidiary questions to which reference will be made later have arisen may be briefly stated as follows
 The Province of Bengal, (hereinafter referred to as the respondent No. 1 or plaintiff) is admittedly the owner of an area of 1125 bighas and odd of land in village Akra.

The trial Judge allowed the appellants 3 months time to remove their belongings from the Akra brickfield including kilns, pugmills, bricks, coals and any other brick-making material that may be lying there after this period these properties, if any, left in the field.

Were to become the absolute properties of the plaintiff.

The appellants thereafter preferred an appeal to the High Court at Calcutta, and the respondent No. 1 also preferred a cross-objection claiming that the prayer for injunction should have been allowed and the claim for damages should have been decreed in full.

The present appeal is directed against the judgment of the High Court.

The cheque was duly cashed and the amount was entered in the cash book of the plaintiff in the following terms - 5-4-37 (date of receipt).

The correspondence to which reference has been made does not show that at any point of time the plaintiff had assented to the appellants continuance of possession.

For instance, in the appellants letter of the 23rd August, 1937, it is stated we are desirous of renewing the lease of the brickfield for a further period of 10 years from the date of the expiration of the period of the lease dated 17-2-1928.

Again, in the letter dated the 23rd October, 1937, reference is made to the appellants application for renewal of the lease for a further period of 10 years on its expiry.

Even in the letter which was written on behalf of the appellants on the 3rd March, 1938, after the expiry of the date on which the lease was to terminate, the statement made in the earlier letters was repeated, and it was further stated we applied for renewal of the lease on the 23rd August, 1937, six months prior to the date of expiration of the lease.

For instance in a letter written on behalf of the Government on the 25th February, 1938, the following statement is made - I have the honour to inform you that none of your agents was present at the Akra brickfield today as previously arranged to make over the possession of the brickfields.

You are therefore requested to please inform me about as to what arrangements are being made by you to make over the possession of the said brickfield to this department

The term of lease expires on the afternoon of the 23rd February, 1938.

It is to be noted that in that case rent had been accepted after the expiry of the tenancy.

It was pointed out to us on behalf of the respondent that the entry relating to this payment in the books of the plaintiff contains the words received without prejudice from Karnani Industrial Bank The same words however occur in several earlier entries, and we are not inclined to attach any special significance to them.

There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease, and nothing turns upon it.

When however the second payment was made, the sum paid was Rs. 6,714 and odd, and the payment was made in respect of rent up to the 31st March, 1930.

After this, all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year.

The clause which applies to this case is clause 1 of Part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time.

This clause, as we have seen, provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that any bricks and other materials left in contravention of this condition shall become the absolute property of the Secretary of State without payment.

The only question is as to the meaning of other materials.

Received without prejudice from Karnani Industrial Bank Ltd. on account of yearly rent for Akra brickfield for the year ending 31st March, 1938.

The correspondence to which reference has been made does not show that at any point of time the plaintiff had assented to the appellants continuance of possession.

it has been found that the bricks and other materials have become the property of the plaintiff, and there can be no legal objection to the granting of an injunction as prayed.

On the 27th August, 1937, the appellants applied to the Secretary to the Government of Bengal, Public Works Department, for renewing the lease for a further period of 10 years, but no reply was received to that letter.

On the other hand, some of the letters written by the appellants show that, notwithstanding their having paid rent up to the 31st March, 1938, they had proceeded all along on the footing that the lease was to expire in February, 1938.

The letters written on behalf of the Government point to the same conclusion, namely, that both the parties were acting on the assumption that the lease was to expire on the 23rd February, 1938.

On the 17th February, 1928, the respondent No. 1 executed a lease (exhibit 3) in respect of the said land for 10 years

The lease was to commence from the 24th February, 1928

We beg to enclose herewith a cheque for Rs. 6,000 in payment of rent Akra brickfield for the year 1937-38 ending 31st March, 1938, and shall thank you to please favour us with your formal receipt for the above.

In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important that here the payment of rent up to the 31st March, 1938, was made not after the date of expiry of the lease, but on the 5th April, 1937, nearly a year before the expiry of the lease.

A reference to section 116 of the Transfer of Property Act will show that for the application of that section, two things are necessary - (1) the lessee should be in possession after the termination of the lease and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession.

by the implied consent of the parties the period of the lease was extended up to the 31st March, 1938.

There is no doubt that the appellants have established that the rent was paid on their behalf up to the 31st March, 1938, and it was accepted by the respondent No. 1.

But it seems to us that the very fact, that the payment was made at a time when there was no question of the lessor assenting to the lessees continuing in possession and neither party treated the payment as importing such assent, is sufficient to take the case out of the mischief of section 116 of the Transfer of Property Act.

It is to be noted that in that case rent had been accepted after the expiry of the tenancy.