Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Hatimullah And Ors. vs Mahamad Abju Choudhury on 6 July, 1927
Equivalent citations: AIR 1928 Cal 312


1. These six appeals are by the defendants in suits for ejectment. It is not necessary to deal with the various points involved in the suits as the only question that has been raised and discussed before us is whether in the circumstances of these cases there was a forfeiture of the tenancies by disclaimer by the defendants. It appears that there was a separate Hisya No. 14 of Taluk No. 27 under Cheak No. 5 of the Thak Map. It stood in the name of one Amirunnessa and was subsequently sold for arrears of revenue and purchased by the present plaintiff. He previously brought suits for rent against these defendants but they having denied the relationship of landlord and tenant between him and themselves he had to withdraw the suits. He then brought the present suits for recovery of khas possession on the ground that the repudiation by the defendants of the relationship of landlord and tenant between him and them operated as a forfeiture of the tenancies, if they had any. The main defence of the defendant was that the lauds did not ‘belong to the plaintiff’s Taluk No. 27 but that they belonged to the Maliks of Taluks Nos. 8, 28, 30 and 32 under whom they were holding and that they were never the tenants of the plaintiff or his predecessor the owner of Taluk No. 27. The first Court found that lands in suit appertained to Taluk No. 27 but that the defendants were bona fide tenants of the lands and that the disclaimer in the previous suit was not sufficient in law for forfeiture of the tenancies. In this view it dismissed the plaintiff’s suits. The learned Subordinate Judge in appeal has dissented from the view taken by the Munsif on fact as well as on law and holding that the disclaimer was sufficient an law to operate as forfeiture he decreed the plaintiff’s suits. Against the decision of the lower appellate Court the defendants have appealed and it is argued on their behalf that the allegations made by the defendants in their written statements in the previous suit did not amount to a disclaimer such as to work forfeiture of the tenancy. In the previous suits for rent the defendants filed written statements of which a translation has been placed before us by the learned vakil for the appellants in which they said that the suits were not maintainable as there was no relationship of landlord and tenant between the plaintiff or his predecessors and the defendants and that the real owners of the lands in suit were persons whose names were mentioned in para. 4 of the written statement. In para. 10 of the written statement the defendants gave a series of denials to all the allegations made by the plaintiff and characterized the plaintiff’s claim as totally false, imaginary, collusive and fraudulent. The essence of the defence in that suit was that the defendants were not the tenants of the plaintiffs or his predecessors in respect of Taluk No. 27, that the lands belonged to the other taluks and that they were holding the lands under the owners of those taluks. The learned Subordinate Judge records the following findings:

There is nothing to hold that the defendants hold the lands of Taluk No. 27 as bona fide tenants for upwards of 12 years. There can be no doubt that the defendants were the tenants of the plaintiffs: so the plaintiff, a bona fide purchaser, is enittled to recover khas possession and wasilat from the defendants who in collusion with the Maliks of other Taluks set up a hostile title and denied the plaintiff’s right. If the defendants would be bona fide tenants of the lands by taking patta from the Maliks of taluks Nos. 8, 28, 30 and 32 then defence would be a plausible one. But they are in collusion with their alleged landlords and persist in setting up adverse right even after the previous decision which bind their alleged landlords as well as the defendants.

2. It may be noticed here that there was a previous suit between the alleged landlords of the defendants and the plaintiff’s predecessors with regard to the lands in suit which was finally decided by the High Court and in which it was held that the lands in suit belonged to Taluk No. 27. On these findings all the learned discussion on the abstract question how far a disclaimer operates as forfeiture hardly arises. The findings come to this, that the defendants have not acquired any permanent right in the lands but have been in possession of these lands in collusion with the Maliks of the other taluks not as bona fide tenants but in order to deprive the plaintiff of his land.

3. The learned vakil for the appellants, however, contends that in law in order that a disclaimer should operate as forfeiture it should be a disclaimer of the tenancy in general and setting up of an adverse right by the tenant in himself. In other words if the tenant denies the relationship of landlord and tenant between the plaintiff and himself and sets up a third person as his landlord, claim-ling and not renouncing the status of a tenant, there is no forfeiture of the tenancy in law. It is conceded that under the law prevalent in the province from which this case comes the denial of the landlord’s right works forfeiture on the analogy of the English law on the subject: see the case of Nizamuddin v. Mamtazuddin [1901] 28 Cal. 135. In support of the broad proposition that has been placed before us by the learned vakil for the appellant we have been pressed with the decision in II. Mathewson v. Jadu Mahto [1908] 12 C.W.N. 525. That case on a close examination does not support the appellants’ contention. In that case the defendant in the previous suit had stated that he was not aware of the plaintiff’s predecessor-in-title having any interest in the land, that the decree, auction-sale and kobala on which the plaintiff based his claim were collusive and fraudulent and that be had a junglebari right in the land. In his evidence the defendant said:

I have no relationship of landlord and tenant with Mr. Mathewson the plaintiff in the suit. I owe no money to him. I am a tenant of Lalit those to whom I pay rent.

4. With regard to the defence stated in the written statement the learned Judges held following the English law on the point and the decisions of this Court that it did not amount to a disclaimer operating as forfeiture in as much as the tenant sought information, with regard to the strength of the plaintiff’s title. With reference to the statement made in the cause of his deposition by the defendant the learned Judges seem to be of opinion that it might have entailed forfeiture but in that case they did not say so because they could not trust the memorandum on the record of the tenant’s deposition in that case as it was not, in conformity with the provisions of the Civil Procedure Code. That case, therefore, does not support the appellants’ contention. The rule with reference to this branch of the English law has been explained by Parke, B., in Dead Gray v. Stanion [1836] 1 M. &. W. 695. At p. 702 the learned Baron observes thus:

A disavow by the tenant of the holding under the particular landlord, by words only, is sufficient.

5. In explanation of this dictum the learned Baron adds:

But in order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant or, to a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relation which by necessary implication is a repudiation of it. An omission to acknowledge the landlord as such, by requesting further information will not be enough.

6. This rule seems to have been based upon a consideration of not allowing a. party to make inconsistent cases at different times by saying that the relationship of landlord and tenant does not exist between the plaintiff and the defendant; and then saying on a future occasion that he was a tenant on the land and that he was willing to treat the plaintiff as the landlord and should not therefore, be ejected from the land. Some English authorities have held in these circumstances that the defendant is estopped. There have been several cases on this point in this Court and all of them followed the principle that when the tenancy was denied under the plaintiff he should not be entitled to claim on a future occasion that the tenancy under the plaintiff was subsisting. The cases which deal with this point are mostly cases under the Bengal Tenancy Act, where the defence of the tenant repudiating the tenancy has been given effect to by the decree of the Court. In such cases, as has been held in Ekambar v. Hara Bewa [1911] 15 C.W.N. 395, the principle of res judicata comes into play. But the principle seems to be the same in cases where the defence has succeeded and in cases where the plaintiff had to abandon the suit on account of the defendants’ defence; for in one case the decision in the previous suit operates as an estoppel by judgment and. in the other case the denial estops the defendant from taking an inconsistent position in a subsequent suit. The principle governing the law of forfeiture by disclaimer has been considered in many cases. See the cases of Mallika Dasi v. Makhan Lal Chowdhury [1905] 2 C.L.J. 389, Pratap Narain Mukherjee v. Biraj Dasi [1914] 19 C.L.J. 77 and Annada Charan Dutt v. Mohim Chandra Ghua (1917) 26 C.L.J. 261. The principle to be deduced from all these cases is that where the tenant denies the plaintiff’s title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the plaintiff’s title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the plaintiff, it would operate as forfeiture. One of the cases on this point, namely, the case of Miadhur v. Rajani Kanta Roy [1910] 14 C.W.N. 339, throws some light on the question which has been canvassed before us. There the defendant in a suit for rent had denied the plaintiff’s title and claimed to hold under a third party. It was held that in a suit for ejectment by the landlord the defendant was debarred from pleading his tenancy and claiming possession on that ground. Though it was a case under the Bengal Tenancy Act and the plaintiff’s previous suit for rent was dismissed on the defendant’s objection, the principle underlying the decision in that case is applicable to the present case.

7. But the question may be looked at from another standpoint. In the present case it has been found by the lower appellate Court that the defendants’ title had not been perfected by 12 years possession. They are at best non-occupancy raiyats with all the incidents of tenancy at will. As has been pointed out in the case of Maharaja of Jeypur v. Rukmini Pattamahadevi A.I.R. 1919 P.C. 1 quoting from the judgment in an English case,
that denial or disclaimer by a tenant of this character need not be held to work a forfeiture, the holding being subject to the mutual will of landlord and tanant to determine it on giving the usual notice, evidence of a disclaimer in evidence of an election to put an end to the tenancy and supersede the necessity for such notice.

8. On the authorities and on a common sense view of the matter, we are not prepared to accept the contention of the appellant that if the tenant does not claim a right in himself and admits tenancy under a third party, he cannot be sued as a trespasser. The English law of forfeiture has been assimilated with the law of transfer in this country and has been embodied in Section 111, Clause (2), T.P. Act. where one of the grounds for forfeiture is said to be setting up by the lessee a title in a third person. This indicates the principle of law that a tenancy may suffer forfeiture even though the tenant may not deny his tenancy but sets up the title of a third person.

9. The findings of the lower appellate Court in this case are strong enough to maintain the decree passed by that Court. They are that the defendants are not bona fide tenants, that they colluded with the Maliks of the adjoining taluks to deprive the plaintiff of the lands of which he was owner and they persisted in setting up adverse title even after the decision in the previous litigation between the landlord of taluk No. 27 and the landlords of the other taluks which was binding on the landlords now set up by the defendants. It has not been found that the defendants are bona fide tenants of the land and have any right to remain on the lands. Apart from the question of forfeiture of tenancy, in the view taken by the lower appellate Court it seems that the defendants had no such tenancy as to be terminated by forfeiture.

10. In the result we hold that the decision of the lower appellate Court on the facts found by it is correct and these appeals are dismissed with costs.

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