Appeal No 177 of 1954
Appeal from the judgment and decree dated October 9 1950 of the Bombay High Court in First Appeals Nos 361  363 of 1948 from Original Decree arising out of the judgment and decree dated July 31 1946 of the Court of Special Tribunal Mangalvedhe in Special Suit No 1322 of 1938
L K Jha Rameshwar Nath J B Dadachanji and section N Andley for the appellant
K R Bengeri and K R Chaudhari for the respondent
April 14
The following Judgment of the Court was delivered by SINHA J This is a defendants  appeal by leave granted by the High Court of Judicature at Bombay from the decision of that Court dated October 9 1950 in two cross appeals from the decision of the Special Judge of the Special Tribunal Court at Mangalvedhe dated July 31 1946 in Special Suit No 1322 of 1938
Of the two cross appeals the First Appeal No 361 of 1948 by the appellants was dismissed and the First 481 Appeal No 363 of 1948 by the plaintiff was allowed
The plaintiff respondent had instituted another suit being suit No 1894 of 1937 which was also tried along with Special Suit No 1322 of 1938
The former suit stands dismissed as a result of the judgment of the High Court and no appeal has been brought against that judgment to this Court
The suit out of which this appeal arises Special Suit No 1322 of 1938 was instituted under the provisions of the Sangli State Agriculturists Protection Act granting certain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called  British India 
The suit as originally framed prayed for accounts in respect of two mortgages though there were really three mortgages to be described in detail hereinafter and for possession of the lands comprised in those mortgages
The first defendant filed his written statement on January 6 1940 contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened that the mortgaged properties had been sold at auction and purchased by the defendant s father who thus became the full owner thereof and that he had sold most of the properties to other persons who were holding those properties as full owners
Defelidant No 3 who also represents the original mortgagee filed a separate written statement supporting the first defendant
Of the defendants who are transferees from the original mortgagees or their heirs only defendant No 8 filed his written statement on March 26 1940 substantially supporting the first defendants written statement and adding that he had purchased the bulk of the mortgaged properties after acquisition of full title by the mortgagees themselves more than 12 years before the institution of the suit and that therefore it was barred by limitation
The trial court dismissed the suit by its judgment dated November 26 1941 with costs
On appeal by the defeated plaintiff the Special Bench of the High Court of Sangli State by its judgment dated June 13 1944 remanded the suit for a fresh trial after having permitted the plaintiff to amend the plaint so as to 482 include the relief for redemption
It appears that during the pendency of the suit after remand an application was made in February 1945 for making substitution in place of defendant No 2 who had died meanwhile but the application was refused by the Court on the ground that the suit had abated as against that defendant
After reframing the issues and rehearing the lase the trial court by its judgment and decree dated July 31 1946 dismissed the suit as against defendants 6 to 9 who were holding portions of the mortgaged properties by sale deeds of the years 1919 and 1922 for more than 12 years as barred by limitation under article 134 of the Limitation Act
The Court decreed the suit in respect of the mortgaged portion of R section No 1735 having an area of 16 acres and 21 gunthas as against defendant No 3 and R section No 334 against defendant No 1 s heirs
Each party was directed to bear its own costs throughout
From that decision the defendants preferred a first appeal being First Appeal No 361 of 1948 and the plaintiff filed a crossings being First Appeal No 363 of 1948 in the High Court of Judicature at Bombay
Both the appeals were heard together along with two other cross appeals arising out of the other suit mentioned above
The High Court by its judgment and decree dated October 9 1950 dismissed the defendants  appeal No 361 of 1948 and allowed the plaintiff s appeal No 363 of 1948 with costs holding that article 148 and not article 134 of the Limitation Act applied to the suit and that therefore it was not barred by limitation
In the result the plaintiff s suit was decreed in its entirety
Hence this appeal by the defendants
A number of Questions of fact and law have been raised by the learned counsel for the appellants but before we proceed to deal with them it is convenient to dispose of the preliminary points in bar of the suit
At the fore front of his submissions the learned counsel for the appellants contended that the suit was outside the jurisdiction of the Special Court created under the Sangli State Agriculturists Protection Act I of 1936
With reference to the provisions of that Act it was contended that the Act authorized the Special Court to 483 take accounts and to reopen closed transactions only up to the year 1915 and that as the transactions which were the subject matter of the suit were of the years 1898 1900 and 1901 the Special Court was not competent to go into those transactions and grant any relief to the agriculturist plaintiff
In our opinion there is no substance in this contention
The Sangli Act referred to above had chosen the year 1915 as the dateline beyond which the court was not competent to grant any relief to agriculturists by way of reopening of closed transactions
But that does not mean that the court itself was incompetent to grant any other relief in respect of transactions of a date prior to 1915
If the legislature had intended to limit the jurisdiction of the Special Court as contended on behalf of the appellants nothing would have been easier than to say in express terms that the court s jurisdiction to grant relief was limited to transactions of that year and after but there are no such words of limitation in any part of the statute
The operative portion of the statute does not contain any such provision
In our opinion therefore the Special Court was competent to entertain the suit for redemption though it would not be competent to reopen those transactions even if any such question of reopening closed transactions had been raised
But it is manifest that no such question arose out of the pleadings in this case
Hence those words of limitation are wholly out of the way of the plaintiff
It may be mentioned that no such plea of want of jurisdiction of the trial court had been raised in the pleadings or in the issues in the courts below
This ground was raised for the first time in the statement of case in this Court
The preliminary objection to the jurisdiction of the trial court is thus overruled
It was next contended that the suit was barred by limitation of one year under article 12 of the Limitation Act
The point arose in this way
The properties sought to be redeemed were mortgaged as will presently appear successively under three bonds of the years 1898 1900 and 1901 by the plaintiff s father Gundi omitting all reference to his brothers
484 It appears that there was a decree for money of the year 1903 in favour of a third party who is not before us
Gundi had been stied as the original defendant but after his death his place was taken by his brother Sadashiv as his heir and legal representative
In execution of the decree the mortgaged properties were auction purchased by the mortgagee s Fulchand son of the first defendant as it appears from the sale certificate Exh
D 56 dated October 31 1907
On the basis of this auction purchase it has been contended on behalf of the mortgagee that unless the sale were set aside it would bind Gundi and his successor in interest the plaintiff
The High Court has held that article 12 is out of the way of the plaintiff because neither the plaintiff nor her father was a party to the sale
If Gundi himself were a party to the execution proceedings the sale as against him would bind his estate and his successor in interest
But it appears that Gundi was substituted by his brother Sadashiv in the execution proceedings
If Sadashiv could not be the representative in interest of Gundi as will presently appear he could not have represented Gundi s estate and therefore the gale as against him would be of no effect as against the plaintiff
Bat it was argued in answer to this contention that the decision of the Privy Council in the case of Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa 1 is an authority for the proposition that even if the property was sold by substituting a wrong person as the legal representative of the judgment debtor the sale would bind the estate of the judgment debtor as much as if the right legal representative had been brought on the record of the execution proceedings
Assuming that the decision of the Privy Council in Malkarjun s case supra is correct and that it is not subject to the infirmities of an ex parte judgment asimay well be argued that decision is clearly distinguishable so far as the present case is concerned
In Malkarjun s case the executing court had been invited to decide the question as to who was the true legal representative of the judgment debtor and the court after 1 1900 LB 27 1 A 216 485 judicially determining that controversy had brought on record the person who was adjudged to be the true legal representative
The sale was held to be of the property of the judgment debtor through his legal representative after the adjudication by the court
The Privy Council held that though the decision of the court on the question as to who was the true legal representative was wrong it was a decision given in that litigation which affected the judgment debtor and his true legal representative unless set aside in due course of law
In the present case there was no such adjudication
From the scanty evidence that we have on this part of the case it appears that Gundi the original defendant had died and had been without any controversy substituted by his brother Sadashiv
The court had not been invited to determine any controversy as between Sadashiv and the true legal representative of Gundi deceased
In execution proceedings the property was sold as that of Sadashiv the substituted judgment debtor
It was a moneysale and passed only the right title and interest of Sadashiv if it bad any effect at all
Malkarjun s case supra therefore is of no assistance to the appellants
The plaintiff Gundi s daughter not being affected in any way by the sale aforesaid it is not necessary for her to sue for setting aside the sale
She was entitled as she has done to ignore those execution proceedings and to proceed on the assumption justified in law that the sale had not affected her inheritance
The suit is therefore not barred by article 12 of the Limitation Act
It was next contended that even if article 12 was not available to the defendants by way of a bar to the suit the suit was certainly barred under article 134 of the Limitation Act
Under article 134 the plaintiff has to sue to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration within 12 years from the date the  transfer becomes known to the plaintiff 
On the other hand it has been contended on behalf of the plaintiff that the usual 486 rule of 60 years  limitation under article 148 of the Limitation Act governs the present case
On this part of the case the defendants suffer from the initial difficulty that the sale deeds relied upon by them in aid of the plea of limitation under article 134 have not been brought on the record of this case and therefore the Court is not in a position to know the exact terms of the sale deeds
This difficulty the appellants sought to overcome by inviting our attention to the statements made in paragraph 8 of the plaint
But those are bald statements giving the reasons why the defendants other than the original mortgagee were being impleaded as defendants
There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale deeds and other transfers referred to therein
The Court is therefore not in a position to find out the true position
Those sale deeds themselves were the primary evidence of the interest sold
If those sale deeds which are said to be registered documents were not available for any reasons certified copies thereof could be adduced as secondary evidence but no foundation has been laid in the pleadings for the reception of other evidence which must always be of a very weak character in place of registered documents evidencing those transactions
Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such
The legislature naturally treats the possession of such transferees as wrongful and therefore adverse to the mortgagor if he is aware of the transaction
Hence the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor in interest is cut down to the shorter period of 12 years  wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him
In order therefore to attract the operation of Art 134 the defendant has got affirmatively to prove that the mortgagee or his successor in interest has transferred a larger interest than justified by the mortgage
If there is no such proof the shorter period under article 134 is not available to the 487 defendant in a suit for possession after redemption
A good deal of argument was addressed on the question as to upon whom lay the burden to prove the date of the starting point of limitation under that article
It was argued on behalf of the defendants appellants that as it is a matter within the special knowledge of the plaintiff the plaint should disclose the date on which the plaintiff became aware of the transfer
On the other hand it was contended on behalf of the plaintiff respondent that it is for the defendants to plead and prove the facts including the date of the knowledge which would attract the bar of limitation under article 134
As we are not satisfied for the reasons given above that article 134 is attracted to the present case it is not necessary to pronounce upon that controversy
It is thus clear that if articles 12 and 134 of the Limitation Act do not stand in the way of the plaintiff s right to recover posses ion the only other Article which will apply to the suit is article 148
It is common ground that if that Article is applied the suit is well within time
Before dealing with the factual aspects of the case it is necessary to deal with another plea in bar of the suit raised on behalf of the appellants
It is contended that the suit is bad for defect of parties in so far as the heirs of the second defendant are concerned
It appears from the order dated March 27 1946 passed by the trial court during the pendency of the suit after remand that the second defendant died on April 26 1943 that is to say while the appeal before the Bombay High Court was pending in that Court before remand
The then appellant who was the plaintiff did not take steps to bring on record the legal representatives of that defendant
An attempt was made by the plaintiff later on to get his heirs substituted on the record but the Court upheld the defendants objection and did not allow substitution to be made
It was therefore noted that the appeal which was then pending in the High Court had abated as against defendant No 2 and that the order of remand made after his death and in the absence of his legal representatives would not affect them
Therefore it was 488 contended that the whole suit would abate because in the absence of the heirs of the deceased defendant No 2 the suit was imperfectly constituted under 0 34 r
I of the Code of Civil Procedure
That rule requires that  all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties 
The original mortgagee
under the three mortgages was Kasturchand Kaniram
The defendant No 1 has contested this suit by filing a separate written statement of his own as the successor in interest of the original mortgagee
It does not appear from the pleadings that the second defendant was a joint mortgagee with the first defen dant or his ancestors
The only statement in the plaint in para
8 with reference to the second defendant is that the  Lands R section No 1735 has gone to the share of defendant No 2
Defendant No 3 looks after all the transactions of defendant No 2 and the shop running under the name of  Kaniram Kasturchand  has gone to the share of defendant No 3 
Thus it is not a case of the first defendant being joint with the other defendants including defendant No 2 who is not now represented on the record
If defendant No 2 had any distinct interest that on the plaint appears to be confined to R section No 1735
In the written statement filed on behalf of the third defendant it is stated in para
9 that the mortgaged portion of R section No 1735 which according to the plaint was the property of the second defendant was really in possession of the third defendant as owner
It would thus appear that even in respect of that plot the second defendant had no subsisting interest
This claim of the third defendant is strengthened by the fact that the second defendant did not file any written statement challenging he statement aforesaid of the third defendant or claiming any interest in that plot or any other part of the mortgaged property
The second defendant had remained ex parte throughout apparently because he had no interest in the property to be redeemed
In any view of the matter his heirs are not parties to this suit and any determination in this suit will not bind them
But it does appear that 489 the second defendant had no subsisting interest if he had any at any anterior period in any portion of the mortgaged property
It was also contended that the original defendant No 8 died and in his place defendants Nos
8a to 8g were substituted
It appears that of the seven persons substituted on the record as the legal representatives of the original defendant No 8 only defendants 8e 8f and 8g were served and the others namely 8a 8b 8c and 8d were not served
On those facts it was contended that the suit for redemption was bad in the absence of all the necessary parties
It was sought at one stage of the arguments to be argued that the suit had abated against defendant No 8 and this argument in the High Court was met by the observation that under O XXII r 4 Code of Civil Procedure it was enough to bring on record only some out of the several legal representatives of a deceased party on the authority of the judgment of the Bombay High Court in Mulchand vs Jairamdas 1
But on the facts stated above there was no room for the application of r 4 O XXII of the Code
All the legal representatives at any rate all those persons who were said to be the legal representatives of the deceased defendant No 8 had been substituted
Thus the requirements of O XXTI had been fulfilled
If subsequently some of the heirs thus substituted are not served the question is not one of abatement of the suit or of the appeal but as to whether the suit or the appeal was competent in the absence of those persons
It does not appear that the absent parties were really necessary parties to the suit or the appeal in the sense that they were jointly interested with the others already on the record in any portion of the mortgaged property
In what circumstances they were not served or ordered to be struck off from the record does not clearly appear from the printed record before us
The defendant No 8e who happens to be the brother of the original defendant No 8 has only filed a written statement claiming that he and his vendor defendant No 7 had been in possession for more than 12 years and that 1  490 the suit was on that count barred by limitation
None of the other defendants who had been brought on the record in place of the original defendant No 8 has appeared in the suit or in the appeal to contest the claim of defendant No 8e that he was in possession of that portion of the property namely 6 acres and 32 gunthas out of R section No 242 old survey No 233
Renee there was no question of abatement of the suit or the appeal
The only question which may or may not be ultimately found to be material on a proper investigation may be whether the decree to be passed in this case would be binding on those who had not been served
For ought we know it may be that they were not interested in the plot sought to be redeemed
On these findings it must be held that the preliminary objections raised on behalf of the defendants in bar of the suit must be overruled
Hence the whole suit cannot be held to be incompetent for the reason that the heirs of defendant No 2 have not been brought on the record
Having thus disposed of the specific pleas in bar of the suit we now turn to the contentions bearing on the factual aspects of the controversy
It was contended that the plaintiff who is admittedly the daughter of Gundi has not established her title to the mortgaged properties
In this connection it is convenient to set out the essential facts in relation to the three mortgage
deeds in question
The first mortgage is dated June 4 1898 in favour of Kasturchand Kaniram executed by Gundi son of Appa for the sum of Rs 700 the amount borrowed by him mortgaging 7 survey numbers with an aggregate area of 43 acres and 38 gunthas
It was a mortgage with possession for a period of 4 years with Gundi s two brothers Sadashiv and Rama as sureties for the repayment of the amount borrowed which was the personal responsibility of Gundi under the terms of the document
But the property mortgaged is admittedly the ancestral land of the three brothers
The second mortgage between the same parties in respect of the same properties bears the date May 25 1900
It secures a further advance of Rs 300 to the mortgagor the payment of which debt 491 is again assured by his two brothers Sadashiv and Rama as sureties
The third mortgage bond is for a further advance of Rs 200 to the mortgagor Gundi with his brothers aforesaid again figuring as sureties
It would thus appear that all the three mortgages are between the same parties as mortgagor and mortgagee and the two brothers of the mortgagor join in executing the mortgages as sureties the property given in mortgage belonging to all the three brothers
The total advance of Rs 1200 under those three mortgages was made to the principal debtor Gundi
It appears that of the three brothers Rama died first and then Gundi some time in 1903 survived by his two daughters the plaintiff and defendant No 13
The plaintiff s case is that the common ancestor Appa in his lifetime had effected a partition amongst his three sons aforesaid giving them each specific portions of his lands reserving a portion for the maintenance of his wife
Those transactions are exhibits P 43 P 44 P 45 and P 46 all dated August 31 or September 1 1892 and apparently forming parts of the same transaction
These are formal documents giving details of the lands allotted to each one of the three brothers and to their mother by way of maintenance
The common recital in these documents is that the executant of the documents Appa had three sons Gundi Sadashiv and Rama in order of seniority  who cannot pull on together The document further recites Hence separation having been effected with your consent I have divided in every way and given you the estate the land the assets etc
 pertaining to the one third share
The same are as under  Then follow the details of the properties separately allotted to each of them
The plaintiff s case is that ever since 1892 the date of the documents aforesaid the three branches of the family had become separate in estate if not also divided in all respects and that on the death of Raina Guildi and his brother Sadashiv inherited his one third share in equal moieties that is to say  on the death of their mother and their brother the two brothers became owners of half and half of the ancestral 492 property left by Appa who appears to have died soon after the alleged partition
The plaintiff s case further is that the principal mortgagor in all those three transactions aforesaid was Gundi and his two brothers had joined only as sureties by way of additional security in favour of the mortgagee It has been contended on the other hand on behalf of the defendants appallants that in the first instance the documets of 1892 referred to above do not evidence an actual partition by metes and bounds but only represent an arrangement by way of convenience for more efficient and peaceful management of the family property and that alternatively if those documents are claimed to have the efficacy of partition deeds they are inadmissible in evidence for want of registration
The courts below have held that those documents are inadmissible in evidence as regular deeds of partition which they purport to be in view of the provisions of the Registration Act
But those transactions have been used for the collateral purpose of showing that from that time the three brothers became separate in estate and evidencing the clear intention on the part of each one of them to live as separated members each with one third share in the paternal estate
In this connection reliance was placed on behalf of the appellants  upon what was alleged to be the subsequent conduct of the three brothers after 1892 as evidenced by the three mortgage bonds themselves and the saledeed exhibit D 54 dated June 17 1909
By the last named document Sadashiv purported to sell to Fulchand Kasturchand son of the original mortgagee practically the whole of the mortgaged properties for a sum of Rs 1500
The recitals in the sale deed would certainly make it out that the three brothers were joint in estate and that the sale deed was being executed to pay off the personal loans of Gundi and Rama during the Years 1900 to 1903 plus the loans taken by the vendor himself
Finally the deed proceeds to make the following very significant declaration as to the status of the members of the so called joint family As I have sold to you my right title and interest in the above said lands neither I nor my heirs and 493 executors of my will have any right whatsoever over the said property
As I am the male heir in the joint family by survivorship nobody except me has any interest in the aforesaid lands
I have sold to you whatever interest I had in the said lands
 It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the years 1903 to 1907 whereby Sadashiv was substituted as the sole heir and legal representative of the defendant Gundi in the suit for money which resulted in the auction sale referred to above of the ear 1907
If the transaction of the year 1892 is admissible in evidence for the purpose for which the document was used in the courts below namely to prove separation in estate there is no room for ambiguity and the position is clear that the three brothers had become separate
Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately being in the nature of a partition deed by the father in his life time and being unregistered are inadmissible in evidence to prove such a partition
But the plaintiff s case does not depend upon proof of actual partition by metes and bounds
In the absence of any ambiguity the later transactions would not be relevant except to show that there was a subsequent reunion amongst the brothers which is no party s case
But it was argued on behalf of the appellants that those documents exhibits P series aforesaid are not admissible in evidence even for the limited purpose of showing separation in estate
The question therefore is whether those documents  purport or operate to create declare assign limit or extinguish whether in present or in future any right title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property within the meaning of section 171 b of the Registration Act
No authority has been cited before us in support of this contention
Partition in the 63 494 Mitakshara sense may be only a severance of the joint status of the members of the coparcenary that is to say what was  once a joint title has become a divided title though there has been no division of any properties by metes and bounds
Partition may also mean what ordinarily is understood by partition amongst co sharers who may not be members of a Hindu coparcenary
For partition in the former sense it is not necessary that all the members of the joint family should agree because it is a matter of individual volition
If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family that effects a partition so far as he is concerned from the rest of the family
By this process what was a joint tenancy has been converted into a tenancy in common
For partition in the latter sense of allotting specific properties or parcels to individual coparceners agreement amongst all the coparceners is absolutely necessary
Such a partition may be effected orally but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition and is thus within the mischief of section 171 b the material portion of which has been quoted above
But partition in the former sense of defining the shares only without specific allotments of property has no reference to immovable property
Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary
The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property may be effected orally or it may be brought about by a document
If the document does not evidence any partition by metes and bounds that is to say the partition in the latter sense it does not come within the purview of section 171 b because so long as there has been no partition in that sense the interest of the separated member continues to extend over the whole joint property as before
Such a transaction 495 does not purport or operate to do any of the things referred to in that section
Hence in so far as the documents referred to above are evidence of partition only in the former sense they are not compulsorily registrable under section 17 and would therefore not come within the mischief of section 49 which prohibits the reception into evidence of any document  affecting immoveable property 
It must therefore be held that those documents have rightly been received in evidence for that limited purpose
Lastly it was contended that if those documents of the year 1892 are admissible to prove separation amongst the three brothers then oil the death of one of the three namely Rama and of their mother the entire ancestral properties including the mortgaged properties vested in the two brothers in equal shares
Both by the auction purchase of the year 1906 D 57 D and the sale deed exhibit D 54 of the year 1909 Sadashiv s moiety share in the mortgaged property was purchased by Fulchand aforesaid
The plaintiff therefore could only claim the other moiety share of her father Gundi
In our opinion there is no answer to this contention because it is clear upon a proper construction of the three mortgage bonds and on the plaintiff s own case that the entire ancestral properties and not only Gundi s share had been mortgaged
The appeal will therefore be allowed to the extent of the half share rightly belonging to Sadashiv and the decree for possession after redemption will be confined to the other half belonging to the plaintiff s father
In the result the appeal is allowed to the extent indicated above
As success between the parties has been divided they are directed to bear their own costs throughout
Appeal allowed in part


Summary:
The appellant was inducted into the structure in ques tion by the owner in 1953
In 1969 the owner died and some dispute arose between his legal representatives and the respondent
The dispute was finally decided in favour of the respondent
The appellant duly recognised him as landlord and started paying rent
In 1973 in response to a notice received from the Municipal Authorities asking him to remove the disputed structure on the ground that it was erected on Government land the appellant was forced to file a suit in the Civil Court challenging the validity of the notice and praying for injunction against the Municipal authorities from inter fering with his possession
The respondent thereafter filed a suit against the appellant on the grounds of default in payment of rent and denial of his title by him
It was alleged that the appel lant had challenged the respondent s title in the plaint filed in the earlier suit
The case of default in payment of rent was rejected but the suit was decreed on the ground of denial of title
On appeal the Additional District Judge confirmed the decree and held that the statements in the plaint amounted to disclaimer and in any event the appellant had failed to acknowledge the landlord s title therein and consequently he was liable to eviction under clf of section 131 of the Act
The appellant s second appeal was also rejected by the High Court at the admission stage
Allowing the appeal HELD In providing disclaimer as a ground for eviction of a tenant in clf of section 131 of the Rajasthan Premises Control of Rent and Eviction Act 1950 the Legislature decided to give effect to the 331 provisions of clg of section 111 of the 
The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and repro bate at the same time
Since the consequence of applying the rule is very serious it must be held that the denial has to be clear and in unequivocal terms
334C D In the instant case the 1973 suit was not directed against any of the defendants excepting the Municipality and the statements in the plaint were made by way of giving the background in which the impugned notice by the Municipal officers had been issued
No relief against the other de fendants including the present respondent was prayed for
Even interpreting the plaint in a manner as favourable to the landlord as may be possible it has to be accepted that the document cannot be construed to clearly deny the re spondent s title in unambiguous terms
One thing that is conspicuous is that the appellant did not claim any title in himself
He expressly described the character of his posses sion as that of a tenant
Examining the entire plaint in this background the ground contemplated under section 131f of the Act is not made out
334B E F Mohammad Amir Ahmad Khan vs Municipal Board of Sitapur and another AIR 1965 SC 1923 referred to