JUDGMENT
Sinha, J.
1. This appeal is on behalf of the defendant arising out of an action in ejectment.
2. The plaintiff’s case was that at the time of the settlement of the land in question, which measures 2 bighas 10 kathas in village Ghatsila,. he was the landlord of the land. There was a title suit going on about the proprietary interest of the plaintiff which went up to the Privy Council and was ultimately decided in favour of the plaintiff. During the pendency of that suit, a Receiver had been appointed by the Court and the Receiver settled the land with defendant 1 for a term of ten years commencing from 1334 Amli under a kabuliyat executed by defendant 1. The settlement was made on 6-5-1927. After final decision in the title suit, when the plaintiff came in khas possession of the village in which the suit land lay in July following, he brought a title suit (No. 4 of 1928) for recovery of ‘khas’ possession of the land in suit on the allegation that the ‘kabuliyat’ executed by the defendant was a collusive and fraudulent document and he was not bound by the same, and further that the defendant derived no title thereunder. This title suit No. 4 of 1928 was dismissed as premature, and an appeal from that decree was also dismissed. The term of the ‘kabuliyat’ expired in 1344 ‘Emli’, and on 18-8-1942, about four or five years after the expiry of the term of the ‘kabuliyat’, notice to quit was served
upon the defendants to vacate the land by 4-9-1942. The present suit was filed in 1945.
3. The defence was that the suit was barred by limitation; that the learned Munsif, in whose Court the suit had been filed, had no jurisdiction to try the suit and that the suit was barred by ‘res judicata’ in view of the decision in title suit No. 4 of 1928. It was further alleged that the lease was a permanent one as there was a clause of renewal of the lease and the defendants had several times approached the plaintiff’s manager for renewal of the lease. The notice was also challenged as not sufficient, and lastly it was urged that the defendants had spent Rs. 6000/- on the construction of a house on the land and they could not be ejected from the land. The learned Munsif decreed the suit and the decree has been affirmed on appeal.
4. Defendant 1 has appealed to this Court, and Mr. Mitter appearing on his behalf has contended that the suit is barred under Article 144, Limitation Act because there being no valid lease, the possession of the appellant was that of a trespasser ‘ab initio’, and, therefore, he got his title perfected by continuous possession for 12 years. In my opinion, this contention is absolutely without substance. Title Suit No. 4 of 1928 had been brought immediately after the settlement with defendant 1 and it was held in that suit that the lease was a valid lease and, therefore, defendant 1 could not be ejected from the land and the house within the period covered by the lease. In that case it was also held that the settlement with the defendant accompanied by delivery of possession was a good lease and on the basis of that finding the suit had been dismissed. It cannot now be urged that the lease was ‘ab initio’ void and the possession of the defendant was that of a trespasser.
5. The next point urged was that the lease was for building purposes, and, therefore, it was a permanent lease and the landlord having allowed the defendant to construct building upon the land in suit, he was estopped from challenging the permanency of the lease. Before I take up that point, I would like to dispose of some minor points taken by Mr. Mitter. It is urged on behalf of the appellant that the appellant was minor at the time of the lease, and, therefore, he was entitled to take advantage of the clause in the lease which was to his benefit, namely, that when he was given the right to build upon the land, it must be deemed that he was given a permanent lease. No question was raised about the minority of the appellant in the Court below nor was framed any issue on this point. This question depends upon findings of fact, and I am not prepared to allow this question to be raised for the first time in second appeal.
It was then urged that Section 53-A, T. P. Act applies to this case, and, therefore, the appellant was entitled to remain on the land as a lessee In my opinion, there is no question of the application of Section 53A, T. P. Act. This section enables the transferee to continue in possession and debars the transferor or any person claiming under him from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the contract, if the contract though in writing has not
been registered, or that the instrument of transfer has not been completed in the manner described therefor by the law for the time being in force. In this case the ‘kabuliyat’ which was executed in 1927 was a registered one, and there was no defect in the instrument of transfer according to the law then in force, and, in my opinion, this section has got no application to the facts of the present case. It was contended that according to the terms of the lease, there was a renewal, and, in that view of the matter, it should be held that the lease has been renewed after the expiry of the period of the original lease. In this connection reference was made to para, 7 of the ‘kabuliyat’ which runs as follows:
“That the term of this kabuliyat shall be 10 (ten) years. Should I, within the stipulated period act according to the terms and conditions and pray for asking resettlement of the said land, I shall be entitled to have the same provided I agree to whatever rent and terms and conditions you may propose, at that time, for making re-settlement. Should I not take settlement (of the said land again) you shall be competent to take khas possession (thereof) and to settle (the same) with any other person as you like. ………………”
The Court below affirmed the finding of the learned Munsif that the defendants never made any approach for re-settlement after the expiry of the term of the lease and were sleeping over the matter, and, therefore, the defendants cannot take advantage of the renewal clause; and also because the clause regarding renewal of the lease was too vague and uncertain, that clause was incapable of being specifically enforced as being vitiated by uncertainty. In my opinion, the learned Judge in the Court below was absolutely right in taking the view he has taken, and I find no reason to differ from the view taken by him. It was then faintly argued that the suit was barred by ‘res judicata’ because of the decision in title suit No. 4 of 1928. It is enough to say, to dispose of this point, that that suit was dismissed as premature because the term of the ‘kabuliyat’ had not expired when that suit had been brought, and there is no merit in this contention on behalf of the appellant. It may be noted in this connection that the question of limitation, and mis-joinder and jurisdiction of the Court was not challenged before the appellate Court.
6. The contention in regard to the permanency of the lease and estoppel can be conveniently taken up together. So far as the question of the permanency of the lease is concerned, the matter appears to be concluded by the contract between the parties as embodied in the ‘kabuliyat’ (Ext. D) dated 6-5-1927. From the quotation of this ‘kabuliyat’, mentioned above, it is apparent that the lease was for ten years. It is true, no doubt, that there was a term of renewal in the lease, but upon the findings of the Court below the lease was not renewed as the appellant did not take advantage of the terms in the lease.
Mr. Mitter has argued that though the lease expired sometime in 1937, the appellant was allowed to hold over after the expiry of the term of the lease, and the lease, therefore, had not been determined: and further that during the course of the holding over if the appellant
asked for renewal of the lease, the lease should be deemed to have been renewed. There is no substance at all in this contention because it cannot be a case of holding over as the lessor did not accept any rent from the lessee, nor is there anything to show that the lessor in any other manner assented to the appellant continuing in possession as lessee. Apart from this, the Courts below have held that the defendant never asked for re-settlement, and, in that view of the matter, it cannot be said that the appellant’s lease which was for a fixed term of years had been renewed.
On the facts of this case, in my opinion, there cannot be a case of estoppel. The lease is dated, 6-5-1927, and although the lease had been taken for the purpose of constructing a house, it said in unequivocal terms that the lease would be for a period of ten years only; and if during the currency of the lease, the appellant wanted re-settlement it would be re-settled and that if no such re-settlement was taken, then the lease was to expire and the lessor, in that case, was competent to take khas possession. If in face of the terms of the lease, the appellant built a house upon the land, can it be said that the lessor was estopped from taking khas possession of the leasehold on the ground that the lessor by some statement or representation or by omission to take action encouraged belief in the lessee that his lease was a permanent one? I am unable to find from the facts of this case that any encouragement by act or omission of the lessor was given to the appellant to foster a belief in him that his lease was a permanent one.
Mr. Mitter has placed reliance on the case of — A. H. Forbes v. L. E. Ralli‘, AIR 1925 PC 146 (A). But the facts of that case were entirely different from the facts of the present case. In that case the lessor had agreed in writing to give the lessee a lease of a plot of land for the purpose of erecting buildings from year to year at an annual rental, and in pursuance of the terms of the lease the lessor had taken possession. Some years later the lessees wished to build a pucca house upon the land, and in answer to enquiries the lessor wrote a letter stating that the lease was a permanent lease though the rent was liable to enhancement. Acting upon that letter of the lessor the lessees built hous? and the lessor knew of the building and received bonus in respect of it. When the suit was brought for ejectment their Lordships held that upon the statement contained in the letter the lease was a permanent one because the statement in the letter amounted to a representation of fact and the appellant was estopp?d under Section
115, Evidence Act from denying that the letting was of that character though subject to enhancement of rent. This is not the case here. Section 115, Evidence Act which contains the law in regard to estoppel runs as follows :
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his represpntative shall be allowed. In any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”
It is clear upon the language of this section that there must be representation by declaration, act or omission and that representation must have caused a belief that the representation was true, and upon the strength of that representation the other party acted upon that belief. There is no question of any representation having been made in this case, and consequently there is no question of believing that representation or acting upon that representation. The terms of the lease were precise and definite and if the appellant having known his position spent money over building a house, he did so at his own risk. In that view of the matter, I must hold that there is no substance in these contentions.
7. The appeal, therefore, fails and is dismissed with costs. It will be open to the appellant to apply to the learned Munsif for time
within which he should remove the materials
from the land in question.