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Allahabad High Court
Mohammad Hafiz Ullah And Anr. vs United Provinces And Anr. on 11 January, 1945
Equivalent citations: AIR 1945 All 285
Author: Bennett


Bennett, J.

1. The only question for consideration in this second appeal is whether a lease has determined by forfeiture by reason of the fact that in a previous suit the lessor’s title was denied by the lessees, that is whether the lease has determined according to the provisions of Section 111(g), T.P. Act. The lease in question which was a perpetual lease, was executed in the year 1841 by a man named Dildar Khan in favour of a Mr. Reid, who was then Collector of Gorakhpur. The lease was granted for building purposes. Subsequently, the Secretary of State for India was recorded in the records in place of Mr. Reid and the plots covered by the lease are now said to be under the management of the Notified Area Committee of Gorakhpur. The previous suit was brought, I understand, because the Secretary of State for India had been recorded as proprietor of the land. The plaintiffs sued for a declaration that they were the owners and that the defendant was only a lessee. They also sued for demolition of certain constructions on the land and they challenged the right of the defendant to transfer his rights. In that suit a written statement was filed on behalf of the Secretary of State for India in which the right of the plaintiffs to any of the reliefs claimed was denied and it was also said that the defendant had been in adverse possession of the plots in suit for over 12 years. To this was added another paragraph that even if the defendant was still a lessee, he had an absolute right to transfer his rights under the lease, as the lease was a perpetual one. This previous suit was decided in favour of the plaintiffs in so far as it prayed for a declaration that they were the owners and that the defendant was a lessee. The prayer for demolition of the buildings was refused and the right of the defendant to make transfers was upheld. In view of the case set up by the Secretary of State for India in his written statement, notice was given by the plaintiffs of their intention to determine the lease. It appears that the lessor, Dildar Khan, sold the property in 1911 to the father of the plaintiffs and they acquired title from their father in 1931 by a deed of gift.

2. The Courts below dismissed the suit brought by the plaintiffs for possession on the ground that the lease had determined under the provisions of Section 111, T.P. Act, taking the view that there had not been an unequivocal assertion of title by the Secretary of State. The lower appellate Court in particular rested its decision on the view that the Secretary of State had merely put the plaintiffs to proof of their derivative title. He had not denied the lease, but merely questioned the plaintiffs’ title to be representatives of the lessor. This view is disputed in the present appeal and I may say at once that on a consideration of the written statement in question I find it very difficult to support it. There is nothing in that written statement which suggests that, although the Secretary of State was a lessee in the lease granted by Dildar Khan, he disputed the plaintiffs’ right to sue because he was not sure that they had derived title from the lessor, Dildar Khan. No reference in fact is made whatever to the plaintiffs’ position as the alleged successors of Dildar Khan. It is merely said that the plaintiffs have no cause of action and are not entitled to any of the reliefs claimed. The next paragraph is the important paragraph in which it is stated that this defendant, namely the Secretary of State, has been in adverse possession of the plots in suit for over 12 years. Various cases were cited on each side, but I do pot find them very helpful. It is clear that a permanent lease is covered by the provisions of Clause (g) of Section 111, T.P. Act, as held by the Calcutta High Court in Kally Das Ahiri v. Manmohini Dasses (’97) 24 cal. 440 and the Privy Council in Abhiram Goswami v. Shyama Charan Nandin (’09) 36 Cal. 1003.

3. The only question for consideration, in my opinion, is whether by claiming to have been in adverse possession of the plots in suit for over 12 years, the defendant can be said to have claimed title in himself within the meaning of el. (g). It has been said by the Court below that the denial of the lessor’s title or assertion of the lessee’s title must be unequivocal and unambiguous. It is true that the assertion in the present case is not an express assertion of title, but it appears to me that this is the only possible inference that can be drawn from the statement that he has been in adverse possession for more than 12 years. It is clear that the defendant’s substantive case was that he was no longer a lessee, otherwise he would not in the following paragraph have said that “even if the defendant is still a lessee.” Learned Counsel for the appellants cited the case in Madho Lal v. Lal Bahadur Singh (’34) 21 A.I.R. 1934 All. 103, which has some slight bearing on this point. In that case, which was a case of a rent suit, the tenant contended that the plaintiff was not his landlord and that he was nobody’s tenant. He did not expressly say that he himself was the owner. Nevertheless, it was held that this amounted to a disclaimer of the landlord’s title and that the landlord was entitled to eject him. I feel that there can be no reasonable doubt in the present case that the Secretary of State intended to set up the case that he had obtained title by adverse possession for more than 12 years, this case being based mainly, it would seem, on the entries in the record showing him as proprietor. I accordingly allow this appeal, set aside the decrees of the Courts below and decree the appellants’ suit with costs in all Courts. I allow the respondents three months to remove their property from the plots in suit. Leave to appeal under the Letters Patent is refused.

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