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P.N. Mookerji J.

1. This appeal arises out of a suit for declaration of Title and recovery of possession. The suit has been decreed by both the Courts below. Hence this second appeal by the contesting defendant.

2. The suit was brought by the plaintiff-respondent on, inter alia, the following allegations, namely, that the suit lands were originally held by his predecessor Mahadev Singh on a tenancy under the admitted landlords Bejoy kumar Banerjee and others for a fixed term of five years from 1334 to 1338 B. S. The tenancy expired, but Mahadev continued to hold on with the landlords' assent, and upon his death, the tenancy devolved on his heirs Ajodhya and Kalika who -continued in possession till October 20, 1944, when it was sold to the plaintiff. Thereafter, the plaintiff brought a rent suit against defendant No. 1 Sreemati Fulkumari Devi who was in occupation of one of the rooms as a tenant under the plaintiff and his predecessors, but the said defendant No. 1 denied the plaintiff's title and set up title in defendant No. 2, the present appellant, and disclaimed all relationship of landlord and tenant between her (defendant No. 1) and the plaintiff, whereupon the rent suit was dismissed. On account of this dismissal,, the present suit had to be brought against the two defendants.

16. The above position is practically beyond dispute but, if authority is needed, reference may be made to the case of the and the case of Anwarli Bepari v. Jamini Lal Roy Choudhary's Mahadev's tenancy, therefore devolved on his death, upon his heirs Ajodhya and Kalika, and, from them, the plaintiff ,got title, by the assignment (Kobala) in his favour. His (Plaintiff's) title, therefore, has been fully established.

17. One word is necessary with regard to the Privy Council case of Kamakhya Narayan Singh v. Ram Rakshna Singh 55 Ind App 212: (AIR 1928 PC 146) (L). There the original lease was one for life and, therefore strictly speaking, there was no question of holding over, and, indeed, there can possibly be no holding over under Section 116 of the Transfer of Property Act except by the lease or the under lessee (Vide 55 Ind App. 212, already cited at p. 225): AIR 1928 PC 146 at p. 151 (L). The heirs who were the claimants in that case would not properly come under that section They could only acquire a new and independent tenancy. This was apparently in the minds of their Lordships of the Privy Council (Vide pp. 224, 225 (of Ind App): (at p 151 of AIR); vide also in this connection when they were dealing with question of holding over under" Section 116 of the Transfer of Property Act. But they also pointed out that section (Section 116) was subject to an agreement to the contrary'' and, in that case, there was such an agreement (vide p. 225 (of Ind App): (at p. 151 of AIR) and, further, that the facts and circumstances of the case also militated against the creation of a new tenancy. In the result, they held that no subsisting tenancy had been proved. There is nothing in that decision which in any way conflicts with the view of law which I have stated above.