ALI NAWAZ CHAWHAN, J.--- This appeal is against judgment and decree, dated 18-4-1988 passed, by the learned Senior Civil Judge, Islamabad, whereby the appellant was denied a part of the relief while the suit of the appellant was decreed through directions that she be handed over the possession of the house and be also paid rent since August, 1985 at the rate of Rs.10,028 per month and until the vacant possession is handed over to the plaintiff.
2. The plaintiff had filed a suit for ejectment of the respondent from House bearing No.42, Nazimuddin Road, F/8-4, Islamabad. The house was taken on rent by the respondent for a period of three years effective from 1-8-1981 to 31-7-1984 at a monthly rent of Rs.10,028 through a written contract.
3. Whereas, according to para. 3 of the Lease Agreement, the period of three years was further extendable for a period of one year on the previous terms and conditions upon the lessee's written notice to be sent to the lessor one month prior to they date of the termination of 'the lease. In case of failure, the lease was to terminate ipso facto, According to para. No.6(iii) of the Lease Agreement, the lessee was to deliver the peaceful and vacant possession of the premises to the lessor after the expiry of lease period.
4. That the lessor made repeated requests to the lessee for finalization of a fresh lease or for vacation of the premises, but no reply was sent. Finally, the lessor addressed a written notice to the lessee on 17-10-1985 which was later followed by a legal notice dated 10-12-1985 making a request for vacation of the premises and for payment of compensation at twice the monthly rent with effect from 1-12-1985 and until the vacation of the premises.
5. It was also the case of the plaintiff that whereas the Government had revised the rents of hired properties on 25th August, 1985, the appellant was not paid rent according to the enhanced rates from 1st July, 1985, from which date the rents were increased pursuant to the enhancement. In this connection, reference is made to Government Office Memo. No.F.8(69)R.14/83-886 of 25th August,, 1985 (Mark-A).
6. A perusal of the legal notice (Exh.P.2. On the file) reflects a desire on the part of the lessor for renewal of lease on the basis of the revised rent and also asked for payment of rent on the basis of the revised rates.
7. In paragraph 9 of the legal notice, a threat was hurled to the respondent that in case her requests aforementioned were not adhered to, the respondent shall be liable to pay compensation at the rate of Rs.20,056 per month which was double the rate of rent.
8. It is said before this Court that the notices were not answered. This led to the filing of the suit with -a prayer for, putting the lessor in possession, of the property for payment of compensation at the rate of twice the rent from 1-12-.1985 and finally for payment of arrears of rent from 1-7-1985 to 30- 11-1985 on the basis of revised rates.
9. Of course, the learned trial Court did not agree to the payment of any compensation nor gave any relief with respect to the payment of arrears on account of the revision in rates and kept itself confined to the payment of rent as originally reflected in the agreement.
10. A question which calls for determination is whether the present case of the respondent was one of "holding over" or of "tenant by sufferance".
11. The principle of holding over is derived from section 116 of the Transfer of Property Act which reads as follows:-- "Effect of holding over.--- If a lessee or under-lessee 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 as specified in section, 106."
12. A tenant holding over after the expiration of his lease and paying rent, the tenancy will be deemed to be on the terms of the old lease in the absence of evidence of a different understanding (Thetford Corporation v. Tyler (1845) 8 QB 95 at 101; Wedd v. Porter (1916) 2 KB 91, CA).
13. Whereas, a "tenancy in sufferance" is one where a tenant continues in possession without the consent of his lessor. A tenant at sufferance is one who after rightfully being in possession of rented premises continues after his right has terminated. He has no estate nor title but only naked possession without right and wrongfully, and stands in no privity to landlord and is not entitled to notice to quit, and is a bare licensee to whom landlord owes merely duty not wantonly nor wilfully to injure him. Welch v. Rice 61 Wyo. 511, 159, P.2d 502, 506, 509.
14. Where, a lessor accepts rent or otherwise assents to the lessee's continuing in possession, he is obviously a lessee who is "holding over". The status of a tenant in any of the above capacities can be determined on the basis of explicit or tacit evidence.
15. In this case, a legal notice in the terms aforementioned was given to the tenant. It had the tacit permission of the lessor for the tenant to continue in possession provided a fresh lease agreement is entered into. Which for the first extended year was to be on the same terms and conditions. The desire of the lessor is further gathered from the notice when she demanded rent on enhanced rates as per the official memorandum of the Government (Mark-A). The lessor also by receiving the rent sent by the lessee had through her conduct established that there was some sort of permission from her side for the lessee to continue. This conduct is further clear by the, fact that the legal notice was issued on 10-12-1985, whereas, the' lease had expired on 31-7-1984 and the suit was filed on 13-1-1986. Therefore, this was a case of a tenant "holding over" and the principle of holding over as enunciated in section 116 of the Transfer of Property Act, 1882 shall be applicable as if the tenancy was on a month to month basis.
16. While this tenancy was subsisting, a revision had taken place in the hiring rates of both commercial and residential houses vide the aforementioned office memo., dated 25th August, 1985, with effect from 1st July, 1985. And these rates should, therefore, be applicable to the appellant for the period the lessee was "holding over" in these premises. This was denied to the lessor by the trial Court and we, after hearing both sides, find that there was no justification for withholding these revised rates to the premises under reference. We accordingly hold that these) revised rates will be applicable for the period commencing from 1st July, 1985, and until the premises were vacated i.e. On 6-12-1988 when the) possession is said to have been delivered, and we decree the suit accordingly while modifying the judgment and decree impugned and allow the appeal with costs throughout.