TMI Blog1964 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... record the precise date upon which the predecessors in title at the appellant's ancestors obtained this property on lease or the terms upon which they held it are not very clear. We should also add that this has not been the subject of examination by the High Court. There was, however, evidence that there was a bungalow constructed by a previous tenant on this property. This bungalow was burnt down by an accidental fire some years before these proceedings began and on the finding of the Courts, the site was vacant and without any buildings at the commencement of these proceedings. While so, the appellant appears in or about September 1947 to have sub-divided the plot, leasing them out to different persons for enabling them to erect buildings on them. The municipal Board of Sitapur objected to this dealing with the property and contested his right to do so, and passed a resolution requesting the State Government to terminate his lease. The Government thereupon issued a notification, in December 1948, for the acquisition of an extent of 2.68 acres out of this plot under Section 9 of the Rehabilitation of Refugees Act (Act 26 of 1948) for the purpose of erecting buildings for hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff and his predecessors have been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and Municipal Board and in any view of the case have acquired such rights by adverse possession. After reciting that the Municipal Board had been realising a consolidated amount of ₹ 388/8/- per year from the plaintiff and his ancestors in respect of the lands of all their bungalows including the plot in dispute, it prayed for a declaration that he had a permanent heritable and transferable right as owner and, in any case, as a permanent lessee for building purposes and that he had right to lease out the same. 4. We are not concerned with the written statement of the Municipal Board but the Government of U.P. filed one on April 10, 1950 to whose terms it is necessary to advert. In paragraph 5 they admitted that there was a bungalow on plot 1444 but since the last 30 years no bungalow, out-houses or any land of constructions had existed on the land in dispute which had been lying vacant up to March 18, 1949. In answer to the allegation in paragraph 11 of the plaint wherein it had been set out that the plaintiff decided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to refer. 6. On April 22, 1950, nearly a fortnight after the filing of the written statement the Government issued a notice to the plaintiff stating, to quote the material part: That the Government is the absolute owner of this plot. That in the acquisition proceedings as well as on other occasions you set up a title in yourself as owner and proprietor of the said land and claimed the same in that capacity. That on account of the said acts on your part, I, on behalf of the Government hereby give you notice that the Government have forfeited the tenancy rights, if any, possessed by you in the said land. On May 15, 1950 the plaintiff moved an application for amending the plaint by admitting in express terms the ownership of the Government and claiming rights merely as a permanent lessee but this application was dismissed. 7. The question raised in this appeal if whether the plaintiff had incurred forfeiture of his lease-hold interests by denying the title of the Government so as to justify the latter in terminating the lease. On the basis of the pleadings as many as 12 issues were raised of which it is necessary to refer only to. 4. If this property was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy was properly terminated the suit was directed to be dismissed. 8. From this judgment and decree the plaintiff-filed an appeal to the High Court. In the appeal only two points were urged on his behalf. The first was that the learned trial judge was wrong in negativing his case that he was a permanent lessee with heritable and transferable rights, of the land in suit. In support of this position it was urged that the manner of dealing with the property, the fact that the giant was lost in antiquity and the other circumstances of the case clearly indicated that the plaintiff held a permanent lease with heritable and transferable rights . An objection was raised on behalf of the State who was the only contesting respondent before that Court (the Municipal Board who was impleaded as the first defendant having chosen to remain ex parte) that the plaintiff had come to Court with a statement that he was an owner and wanted a declaration to that effect. The learned Judges, however, construed the plaint as meaning that the plaintiff had prayed for a declaration in the alternative and that, at any rate, on the facts proved he was prima facie a permanent lessee who had a right to lease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the trial Judge negativing the plaintiff's claim that he was a permanent lessee and holding that he was merely a licensee or a tenant at will. 9. It would have been noticed that the learned trial Judge had recorded a finding that the plaintiff had denied the title of the landlord and having thus incurred a forfeiture, had no further interest in the suit property as to obtain the relief of declaration in any form that he wanted. The second point that was urged before the learned Judges of the High Court was that the trial Judge was in error in holding that the plaintiff had denied the title of the landlord by the statements which were relied upon for that purpose--both having regard to the circumstances in which they were made as well as their tenor. Learned Counsel for the State stated that he was prepared to argue the case on the basis that the plaintiff was a permanent lessee with heritable and transferable rights and contended that oven if it were so, the tenancy had been forfeited and determined and therefore there was no necessity for a remand. The learned Judges thereafter considered the terms of Ex. A-18 which was the application made to the Compensation Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancies are within the rule and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlord's title. That the disclaimer or the repudiation of the landlord's title must be clear and unequivocal and made to the knowledge of the landlord is also beyond dispute. The question then is whether the learned Judges of the High Court were right in holding that by the statement filed on behalf of the appellant before the Land Acquisition Officer marked as Ex. A-18 the appellant: had renounced his character as lessee claiming title in himself. For answering it we have to consider whether on the terms of Ex. A-18: (1) the appellant had asserted an ownership in himself repudiating the title of the Government, and (2) whether the terms of this assertion of ownership are clear and unequivocal. 12. That the land-plot No. 1444--held by the appellant was nazul land is not in controversy, nor did the respondent controvert this. It was subject to the payment of a nominal annual rent of ₹ 45/14/- which has been unvarying as long as is known. There was no document evidencing the grant of the lease so as to enable the ascertainment of the terms upon which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the nature of his interest in the land. (2) in the alternative he prayed that a sum of ₹ 52,900 might be paid to him as compensation for the acquired plot. Paragraph 2 of this application ran: The land acquired is part of Jali Kothi or Bungalow Marett Saheb, belonging to me, in the Civil Lines, Sitapur. After reciting in paragraph 4 the declaration made by his ancestor under Section 32A to which we have adverted, he proceeded in paragraph 5 to state: That I and my ancestors have been owners of the land and have been exercising permanent heritable' and transferable rights in this land, openly and to the knowledge and consent of the Government. Before proceeding to paragraph 8 it would be useful to summarize the intervening two paragraphs. In paragraph 6 he set out his having plotted out the land to various tenants for being built on and in paragraph 7 he said: Under a misconception of my rights some wrong entries have been made perhaps by the Patwari without any official order. (The reference here is to his being recorded as a non-occupancy tenant of the land). On the same basis the Municipal Board, Sitapur, disputed my rights of transfer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galow constructed on the property and learned Counsel for the respondent con-ceded that if that bungalow were in existence and the property had been referred to as my bungalow' or bungalow belonging to me it would not be a disclaimer or rather the denial would not be unequivocal but he urged that if the same terms were used in respect not of the super-structure and the land together but of the site alone on which the super-structure stood, the interpretation of the assertion would be different. It is in this context that the circumstances of the tenancy become material for determining the nature of the assertion made. Here was a tenancy whose origin was not definitely known. The lessee had constructed super-structures and the appellant and his ancestors had been in enjoyment of the property for over three quarters of a century. There had been transfers effected of the property and the same had been the subject of inheritance. There had been a document in which there had been a public assertion that though it was Government land for which a nominal rent was payable, they had a permanent heritable and transferable right . Notwithstanding enjoyment of this nature with public a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration is paragraph 8 and the reference there to the suit for declaration of my title in respect, of this land . This passage is, if anything, less capable of the construction sought to be put upon it by the respondent that it amounts to an assertion repudiating the title of the landlord. If we are correct in the conclusion as regards paragraphs 2 and 5 it would follow that the title of which it seeks a declaration is such title as he has in the suit property. A title as a permanent lessee with a heritable and transferable right in the property is as much a title as one with full ownership and if he stated that he was seeking a declaration from the Civil Court of his title as permanent lessee of such a character, there would, of course, be no question of his setting up a title in himself in derogation of the landlord's. 17. Learned Counsel for the respondent placed before us certain English decisions, particularly Vivian v. Moat, (1881) 16 Ch D 730 and Warner v. Sampson, in support of his submissions. In the former case a claim by a tenant disputing the right of the landlord to increase the rent which, on the facts, he was entitled to, was held to be a disclaimer of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dlord as to incur forfeiture. 18. In a Divisional Court held that even by an inadvertent denial in a pleading of the right of the landlord, a tenant would incur forfeiture. We do not consider that this is the law in India, and for the same reason for which (1881) 16 Ch. D. 730 was held inapplicable to this country. We consider the law to be that unless there is a disclaimer or renunciation in clear and unequivocal terms whether the same be in a pleading or in other documents, no forfeiture is incurred. 19. Ex. A-18 was the only document containing the statement of the appellant which was held by the High Court to amount to a disclaimer entailing a forfeiture. Learned Counsel for the respondent, however, drew our attention to statements in a few more documents which he submitted either by themselves amounted to a disclaimer or could be used to clarify the intention of the appellant in the statements or assertions that he made in Ex. A-18. The first one referred to in this connection was Ex. A-19 dated October 2-1, 1949. It would be recalled that in Ex. A-18 the appellant made a claim for ₹ 52,900 as the proper compensation payable to him. The officer by his order dated M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent lessee for building purposes and he had the right to lease out the same. We do not consider that the position of the respondent is improved by the plaint or that it takes us beyond the assertions in Ex. A-18 which we have considered in detail. If one proceeds on the basis that the appellant was a permanent tenant, holding at a nominal and invariable rent, and had a transferable and heritable interest in the plot, none of the allegations in Exs. A-18, A-19 or the plaint go beyond it or purport to deny the landlord the right to the reversionary interest or to demand and receive the fixed rental for the property. Mr. Agarwala referred us, besides, to the oral evidence of the manager of the appellant who stated that the plaintiffs believed that they were the owners. We do not think that this assists the respondent. 20. The one fact that remains is that rent was being continuously paid right up to March, 1947 and the appellant never raised a dispute as regards his liability to pay rent. This was stressed before the learned judges of the High Court as pointing to the assertion made by the appellant not amounting to a claim to full ownership in himself. The learned Judges, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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