Case: Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur &amp; Another

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 mere 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 14, 1949. It would be recalled that in Ex. A-18 the appellant made a claim for Rs. 52,900 as the proper compensation payable to him. The officer by his order dated March 26, 1949 awarded him Rs. 15. Complaining of this award he made a claim for the amount he originally sought, by a reference to the District Judge under S. 11(3) of Act XXVI of 1949 and the application he filed for this purpose was Ex. A-19 in which again the appellant made the two alternative prayers as he had done before the Compensation Officer. The learned District Judge, it may be noticed, by his order dated December 23, 1949 stayed the proceedings before him till the disposal of the present suit. The averments made in support of the reference were identical with those in Ex. A-18 which he had filed before the Compensation Officer on March 25, 1949. Paragraph 2 of Ex. A-19 stated that the land acquired was a part of the Jali Kothi or Bangla Maret Saheb "belonging to the claimant" and was situated in the heart of the city. Paragraph 6 which corresponds to paragraph 5 of Ex. A-18 ran:"The claimant and his ancestors have been owners of the land and have been exercising permanent heritable and transferable rights in this (as in other lands mentioned in para 4 above) openly and to the knowledge and consent of the Government for more than sixty years,"and in paragraph 18 he said:"The claimant was then forced to file a declaratory suit No. 24 of 1949 against the U. P. Government and the Municipal Board, Sitapur that the rights of the claimant in the whole land acquired requisitioned and left out are those of an owner or of a permanent lessee."This of anything is less unambiguous and unequivocal than the statements contained in Ex. A-18. Learned Counsel next referred us to the terms of the plaint. Here again, the only assertions made were that the plaintiff and his ancestors had been in possession of the bungalow and its compound since the last 79 years; that the plaintiff and his ancestors had been owing a bungalow and other constructions and holding the premises with permanent heritable and transferable rights, that the plaintiff and his predecessors had been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and the Municipal Board and in any view of the case had acquired such rights by adverse possession. In paragraph 20 the plaintiff prayed that it may be declared that the plaintiff had a permanent heritable and transferable right as an owner and , in any case, as a permanent 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, dismissed this argument on the ground that it was not proved that rent was paid up to 1949. Mr. Aggarwala made the same submission to us. As regards this matter, however, two things stand out prominently: The first is what we have already stated that the appellant never disputed his liability to pay rent. The next is that as early as September 24, 1947 the Municipal Board objecting to the subleases effected by the appellant applied to the Government to terminate the lease and the Government also appear to have concurred with the municipality in this matter. The notification for acquisition of the suit plots was published on December 3, 1948 and immediately thereafter possession appears to have been taken as is recited in Ex. A-18 which we have extracted earlier. In these circumstances, we do not consider that any inference adverse to the appellant could be drawn from his not tendering the rent for the period up to the date on which possession was taken.21. We, therefore, hold that the learned Judges were in error in holding that the appellant had incurred a forfeiture of his tenancy, assuming it was a permanent tenancy, by the claim that he made in Ex. A-18 and the other documents to which we have referred so as to justify the forfeiture which the Government claimed to enforce by Ex. A-15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Before we proceed to state the points urged before us, it is necessary to mention that the arguments before us have proceeded on the assumption that the appellant was a permanent lessee with heritable and transferable rights. We are saying this because the learned Judges of the High Court have not recorded any definite finding on this issue of fact but have expressed the opinion that if it were necessary to determine that question the matter would have to be remanded to the trial court after summoning the documents which are referred to in the passage extracted earlier. We would only add that we entirely agree with the observations of the learned Judges on thisdoubt, the provisions of the Transfer of Property Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in S. 111(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience (See Maharaja of Jeypore v. Rukmini Pattamahadevi, 46 Ind App 109 (AIR 1919 PC 1).It was also clear law that permanent tenancies are within the rule and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlords title. That the disclaimer or the repudiation of the landlords title must be clear and unequivocal and made to the knowledge of the landlord is also beyonddeed was presented for registration and was registered on August 12, 1918. We are not now concerned with the legal effect of the declaration or to ascertain whether by reason thereof the lease of the property attained the character of permanency with hereditary and transferable rights in the hands of the then Talukdar or his successors but we are reciting this anterior history regarding which there is no dispute for the purpose of appreciating the significance of the claim made in Ex.and in ascertaining whether it amounted to a repudiation of the landlords title.Now to revert to paragraphs 2, 5 and 8 which the learned Judges considered amounted to a clear and unequivocal denial of the Governments title, they referred in para 2 to the words "belonging to me" as constituting a disclaimer of the tenancy and a repudiation of the landlords title. We do not agree that this is the only or proper construction which the words are capable of bearing. Though the word "belonging" no doubt is capable of denoting an absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by thatthe case before us there had been a bungalow constructed on the property and learned Counsel for the respondent conceded that it 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 theand the land together but of the site alone on which thestood, 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 constructedand the appellant and his ancestors had been in enjoyment of the property for over three quarters of a century. There had been transfers effected at 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 assertions of the type, when the property was sought to be enjoyed byit to others for construction of houses the municipality had come in and asserted rights in denial of these claims. It is with that background that one has to judge as to whether when the tenant stated that the land "belonged to him" he was asserting merely the substantial character of his interest in the property or was disclaiming the reversionary interests of Government or its right to demand and receive a fixed rent in respect of the property. We consider that the words employed did not, in the circumstances, amount to a disclaimer or a renunciation of the tenancy.15. Coming next to paragraph 5, what we have stated in regard to paragraph 2 and the use of the expression "belonging to me" occurring there would in our opinion apply equally to the use of the word owner in this paragraph. The reference to the appellant and his ancestors exercising permanent heritable and transferable rights to the land is an obvious reference to the deed dated August 8, 1918 executed under S. 32A of the Oudh Estates Act, 1869 in which also the same words occur. Though divorced from the context these words are capable of being construed as an assertion of absolute ownership, they cannot, in our opinion, in the setting in which they occur and bearing in mind the history of the enjoyment by the appellant and his predecessors of this property, be deemed an assertion unequivocal in nature of absolute ownership sufficient to entail a forfeiture of a permanent tenancy of this nature. In this connection it might be noticed that this enjoyment is stated to be with the consent of the Government. If the assertion were understood to be as an absolute owner in derogation of the rights of the Government as landlord, the reference to the consent of Government to such an enjoyment would be wholly inappropriate. Consent would have relevance only if the Government had interest in the property and we, therefore, understand the passage to mean that the permanent, transferable and heritable, particularly the right to transfer which was being denied by the municipality, was stated to have been enjoyed with the consent of the Government. That is an additional reason for our holding that at the worst the assertion was not unequivocal as to entail a forfeiture of the tenancy.16. What remains for consideration 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.All ER 44 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 his 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 isof anything is less unambiguous and unequivocal than the statements contained in Ex.el next referred us to the terms of the plaint.Here again, the only assertions made were that the plaintiff and his ancestors had been in possession of the bungalow and its compound since the last 79 years; that the plaintiff and his ancestors had been owing a bungalow and other constructions and holding the premises with permanent heritable and transferable rights, that the plaintiff and his predecessors had been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and the Municipal Board and in any view of the case had acquired such rights by adverse possession. In paragraph 20 the plaintiff prayed that it may be declared that the plaintiff had a permanent heritable and transferable right as an owner and , in any case, as a permanent 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.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.9 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, dismissed this argument on the ground that it was not proved that rent was paid up to 1949. Mr. Aggarwala made the same submission to us. As regards this matter, however, two things stand out prominently: The first is what we have already stated that the appellant never disputed his liability to pay rent. The next is that as early as September 24, 1947 the Municipal Board objecting to the subleases effected by the appellant applied to the Government to terminate the lease and the Government also appear to have concurred with the municipality in this matter. The notification for acquisition of the suit plots was published on December 3, 1948 and immediately thereafter possession appears to have been taken as is recited in Ex.which we have extracted earlier. In these circumstances, we do not consider that any inference adverse to the appellant could be drawn from his not tendering the rent for the period up to the date on which possession was taken.21. We, therefore, hold that the learned Judges were in error in holding that the appellant had incurred a forfeiture of his tenancy, assuming it was a permanent tenancy, by the claim that he made in Ex.and the other documents to which we have referred so as to justify the forfeiture which the Government claimed to enforce by Ex.