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

2. The facts necessary for the disposal of the appeal, in view of the only point raised before us lie in a very narrow compass. The dispute relates to the claim of the appellant to an area of 16 Bighas or 3 acres odd in plot 160 bearing Municipal number 1444, situated in Chhauni Qadim, Sitapur Cantonment. The plaintiff is the Taluqdar of the Mahmudabad estate in the district of Sitapur. The dispute relates to the nature of his title to the interest in his property which is admittedly nazul land and the particular whether he has forfeited his leasehold interest by reason of his acts and conduct to which we shall refer presently.3. From the evidence on record the precise date upon which the predecessors in title of the appellant 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 building at the commencement of these proceedings. While so, the appellant appears in or about September 1947 to havethe plot, leasing them out to different persons for enabling them to erect building 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 S. 9 of the Rehabilitation of Refugees Act (Act 26 of 2948) for the purpose of erecting buildings for housing refugees from Pakistan. Before the Land Acquisition Officer assessing the compensation the contention raised by Government was that the land was admittedly nazul land and that the plaintiff was merely atenant and that therefore be was entitled only to one years rent as compensation. In answer to this claim the plaintiff filed, on March 25, 1949 an application claiming that he and his ancestors had been owners of the land and had been exercising "permanent, heritable and transferable rights" in the land openly and to the knowledge of and with the consent of the Government. He, therefore, claimed that he was entitled by reason of such interest in the land to sum of Rs. 52,900 as compensation for its acquisition. He also stated in that application that as his title to the property had been disputed by the Municipal Board of Sitapur which asserted that he had no rights to transfer or lease the parcels of land as he had done in September, 1947 he was filing a suit in the Civil Court for a declaration of his title in respect of that land and he, therefore, prayed that till the decision of the Civil Court the determination of the amount of compensation due to him may be deferred. Alternatively he prayed that if his claim as to the amount of compensation was not accepted the matter may be referred for decision to the Court for adjudication. The Compensation Officer, however, rejected the claim of the appellant to the title that he claimed to the property and holding that he was meretenant decided that he was not entitled to anything more than a years sent and assessed the compensation payable at Rs. 15, This order was passed on March 26, 1949. Soon thereafter and after the expiry of the period of notice that he had given under S. 80 of the Civil Procedure Code the appellant filed a suit out of which this appeal arises, on July 11, 1949 impleading the Municipal Board, Sitapur which had disputed his right to parcel out the lands and lease them to refugees, and the State of United Provinces which disputed his claim in the compensation proceedings as defendants. After stating the earlier history of the property the plaintplaintiff and his ancestors have been owning the bungalow and other constructions and holding the premises with a permanent heritable and transferable rights.The plaintiff 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 adversereciting that the Municipal Board had been realising a consolidated amount of Rs. 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 l0, 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 year; no bungalow,or any kind 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 parcel out lands and lease the same to different persons the Government stated that the plaintiff had no right to parcel out the land in dispute and had done so by wrongly representing himself as the owner and had sold it to the general public by auction. In other words, it was this action on the part of the plaintiff in parceling out andthe lands, that was said to amount to a repudiation of the title of the landlord. The plaintiffs complaint regarding the action, of the Municipal Board in requesting the Government to terminate the lease and hand over the land to the Board was answered in paragraph 13 byMunicipal Board passed a resolution terminating the tenancy of the plaintiff and requesting the Government to take over the land on the ground that the action of the plaintiff amounted to a denial of ownership the landlord and was further detrimental to public interest and constituted violation of the purpose for which the holder of the land was permitted to useGovernment accordingly, terminated the tenancy, and took over the land." The contention regarding the repudiation of the title of the landlord in this manner was also repeated in paragraph 14 of the written statement which was emphasised and elaborated in Paragraphs 25, 26 and 27 which ran:"25. The plaintiffs claim to permanent heritable and transferable right as owner is wrong, baseless and without any foundation.26. Under the Cantonment tenure governing such areas no one except the Government can have any title to the land in the said area, and the Government can resume it at any time.27. In spite of the fact that the plaintiff had no claim to the land in dispute as owner, be repudiated the title of the landlord, and representing himself as the owner actually parcelled it out into various plots and with a view to make money out of it sold portions of it by auction to the general public representing himself to be the owner thereof. Under the circumstances the Municipal Board had to terminate the lease of the plaintiff and the Government acquired the land for building houses for refugees and have actually constructed the said house on it. . . . . . .. . . . . . . The conduct of the plaintiff has resulted in the forefeiture of the rights of the plaintiff in the tenancy claimed by him.Other defences were also raised to which however it is not necessary to refer.6. On April 22, 1950, nearly a fortnight after the filling of the written statement the Government issued a notice to the plaintiff stating, to quote the materialthe Government is the absolute owner of this plot. That in the acquisition proceedings as well as on other occasions you set up a tile 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 saidMay 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 is whether the plaintiff had incurred forfeiture of hisinterests 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 onlyIf this property was made a part of Taluqa Mahmudabad in 1919 and whether the plaintiff has a permanent heritable and transferabl right in it?6. If the Municipal Board had been realising rent for the land in suit on behalf of the U.P. Government from the plaintiff and his predecessors7. Whether the plaintiff is and his predecessors were mere licensees of the land in, suit, and whether by sales and his attempt to allot parcel out of it to others, has ceased to be a licensee?8. Whether the defendants terminated the tenancy of the plaintiff and took possession of the land 1ts landlord after forfeiture of the.plaintiffs rights?9. If the right of the plaintiff, if any, terminated by his own acts viz., (1) denial of his landlords title, (2) Use of the land for purpose inconsistent with the purpose of the tenancy, (3) by the destruction of the house about 30 yearsthe stage of the trial and particularly during the arguments before the learned trial Judge, the learned Counsel for the plaintiff sought to argue that the plaintiff had a permanent transferable and heritable right in the land as a lessee, i.e., he was a permanent lessee the origin of which was unknown. The learned Judge, however, construed the plaint as not permitting such a case to be made out and that the choice was between the plaintiffs full title as owner which he held had not been established or a title as a licensee or atenant which was the entry in the revenue register. On this reasoning the learned trial judge decided issue No. 7 in favour of the defendants. If the plaintiff was thus a licensee of the site of the bungalow and a tenant at will in respect of the rest of the land the learned trial Judge held that by the written statement that he flied on March 25, 1949 he had repudiated the title of theattitude which had been repeated in the oral evidence in Court at the trial. He, therefore, held that the plaintiff had incurred forfeiture and that the Government were therefore entitled to revoke the licence and put an end to his rights. The learned trial Judge also referred to the application that was made for amending the plaint filed in May, 1950, but held that this would not help the plaintiff for avoiding the effect of the forfeiture he had already incurred. The result was that on the finding the plaintiff had incurred a forfeiture and the tenancy 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 grant was lost in antiquity and the other circumstance 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 out the plots. It will be noticed that this was theof the controversy between the plaintiff and the Municipal Board when the latter body invoked the aid of the Government to put an end to the lease. The learned Judges also referred to the application filed by the plaintiff on May 15, 1950 to amend his prayer and praying in specific terms for the relief that the plaintiff "was the owner with a permanent heritable and transferable right to property of which the Government had a paramount proprietary title. The learned Judges stated that they would not be prepared to accept the finding of the learned trial Judge on the point whether, in fact, the plaintiff was a permanent lessee who had a right tothe property which he held under the lease. In this connection they observed aswere, therefore, inclined to remand this case for a proper determination of the fact as to whether the plaintiff was a permanent lessee or an ordinary lessee or a mere licensee. We had come to this opinion only because we found that repeated attempt made by the plaintiff to summon certain documents from the defendants, particularly the defendant No. 1 had been improperly blocked. We were taken through three applications 100 Ga, 101 Ga and 103 Ga, the last having been filed on the 22nd July, 1950. We are satisfied with the manner in which them applications had been dealt with. We are aware that the plaintiff had not included these documents, in any list of documents submitted by him either with the plaint or immediately after the issues within the time granted to him. There could however, be no doubt as to we genuineness of these documents as they were being summoned from the defendant No. 1. There was hardly any question of proof, as the documents were coming from the possession of defendant No. 1 and they would have been immediately exhibited in the case. We are of opinion that in the circumstance the learned Civil Judge should have allowed the summoning of these papers on payment of costs and should have admitted them as evidence in the case and whatever costs be considered just and proper could be imposed on the plaintiff in respect of eachresult of this was that on this main point which was urged by the plaintiff the learned Judges gave no definite finding themselves but were not prepared to accept as correct the finding of the trial Judge negativing theclaim 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 thathaving 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 even 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.which was the application made to the Compensation Officer in the land acquisition proceedings and considered that it contained an unequivocal assertion of the plaintiffs absolute and proprietary right in the land and an unambiguous denial of the title of the landlord and rejecting the submission of the plaintiff as regards the construction and legal effect of Ex.dismissed the appeal holding that by the statements contained in that application the plaintiff had clearly denied the title of the landlord and thus incurred forfeiture. In passing we might mention that the suit sought a declaration as to the title of the plaintiff to the entirety of plot 160 of 16 bighas, whereas the Land Acquisition proceedings and Ex.filed in the said proceeding related to a smaller extent of 268 acres out of the said plot. This was either not noticed or considered immaterial.10. It is the correctness of this judgment of the High Court that is canvassed in the appeal before us.

Reasoning: 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.