Muhammad Abdul Latif vs Shaikh Habibur Rahman

Jwala Prasad, J.—This second appeal arises out of a suit for ejectment of the defendant No. 1 from two plots of homestead land in Mouza Dariapur Sher, and in the alternative for mutharja rent for 1320 to four annas kisht of 1323 Fasli. The Mouza was partitioned in 1894 and the lands in dispute, bearing Batwara Khasra Nos. 65 and 67, fell in Touzi No. 98. The plaintiffs now hold the entire 16 annas of Touzi No. 98. The defendant No. 1 holds the lands as tenant thereof. He denied the title of the plaintiffs to khas possession or to rent and set up the title of one Nur Jahan, wife of defendant No. 2, to the lands in suit. Nur Jahan was impleaded as defendant No. 2 in the suit and after her death her husband was substituted in her place. There was no appearance in the Courts below by Nur Jahan or her husband. The suit was contested by defendant No. 1 only.

The Courts below have concurrently held that the plaintiffs as owners of 16 annas of Touzi No. 98 are proprietors of the disputed lands which have fallen in their Touzi and that Nur Jahan, defendant No. 2, has no concern with the disputed lands. This finding as to the plaintiffs'' title to the lands in suit is not pressed before me in this appeal. The plaintiffs are, therefore, owners of the lands in suit and the defendant No. 1 is tenant thereof. The Courts below have decreed the suit for possession in favour of the plaintiffs. The defendant No. 1 has preferred this second appeal.

In 1907 the plaintiffs brought a suit for recovery of rent from the defendant No. 1. In that suit the defendant denied the relationship of landlord and tenant and set up the title of Nur Jahan. The plaintiffs'' suit was dismissed on 19th June 1908. The plaintiffs subsequently brought another suit for rent. The defendant No. 1 again denied the title of the plaintiffs and the relationship of landlord and tenant, with the result that the plaintiffs had to withdraw the suit with liberty to bring a fresh suit. The plaintiffs, therefore, in the present suit seek to recover possession of the property in this suit on the ground that the denial of their title by the defendant in the two previous suits for rent constituted a forfeiture of the tenancy. The Courts below have found as a fact that the lands in suit are homestead lands and are not governed by the Bengal Tenancy Act, and that defendant No. 1 clearly and unequivocally denied the title of the plaintiffs in the previous suits referred to above. The attempt of the defendant to challenge these findings of fact is futile. In the first place, the appellant is not entitled to re-open the findings of fact in second appeal. Apart from this a reference to the written statement of the defendant, Exhibits 6 and 6(1) in the previous suits, and his deposition in the suit of 1907 clearly go to show that the defendant No. 1 openly and clearly repudiated in toto the plaintiffs'' title to the lands. It is also admitted, as held by the Courts below, that the lands when acquired were homestead lands and hence are not governed by the Bengal Tenancy Act. This finding is not seriously disputed in the second appeal. The defendant not only denied the plaintiffs'' title in the previous suits but persists in denying it in the present suit and in setting up the title of a third person. There can, therefore, be no doubt that defendant No. 1 has forfeited his right of tenancy in the lands in suit and is liable to be ejected therefrom. The learned Vakil on behalf of the appellant, however, contends that the defendant is not liable to be ejected from the lands in suit, inasmuch as there is nothing to show that the plaintiffs did any act prior to the suit for ejectment showing their intention to determine the lease. Reliance is placed upon clause (g), section 111 of the Transfer of Property Act, which runs as follows:--

A lease of immoveable property determines by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter or the lease shall become void; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; and in either case the lessor or his transferee does some act showing his intention to determine the lease.

This point does not appear to have been taken in the Courts below nor in the written statement. The defendant, to my mind, is not entitled to raise this point in second appeal, particularly when the decision on the point involves determination of facts which should have been raised in and determined by the Courts below. The defendant is a purchaser of the holding of the plots Nos. 65 and 67 from Kanhai Mahto and Gopi Halvai respectively by means of sale-deeds executed some 27 or 28 years ago, i.e., about the year 1888, the exact dates whereof are not disclosed. The origin of the tenancy is not at all known. Kanhai and Gopi must have held the lands for over 12 years prior to 1888, when they transferred the occupancy rights in the lands to defendant No. 1. The tenancy was, therefore, probably created before the Transfer of Property Act. If the tenancy was created prior to the Transfer of Property Act of 1882, clause (g) of section 111 will not apply, as clearly held in Padmanabaya and Others Vs. Ranga and Others, , which was followed in Korapalu and Another Vs. Narayana alias Naranappayya, ; vide also Ramnath Sil and Another Vs. Siba Sundari Debya and Another, . It was for the defendant-appellant to show that the tenancy was created after the Transfer of Property Act in order to take advantage of the clause mentioned above. The defendant did not take this plea nor offered any evidence to show when the tenancy was created. He is not entitled in second appeal to raise this Question.

Again even if the tenancy was created after the Transfer of Property Act, it appears to me that the clause does not require any notice to be given, nor a prescribed act to be done on the part of the lessor. It is sufficient if something is done by the lessor to show his intention to determine the lease. In the present case the defendant repudiated the plaintiffs'' title in 1907 and the plaintiffs'' suit for rent was dismissed. Subsequently the plaintiffs had to withdraw their second suit for rent on account of the denial of their title by the defendant. The plaintiffs, therefore, bring the present suit for ejectment treating the defendant as trespasser, as they are entitled to do so: vide Khater Mistri Vs. Sadruddi Khan, , Nilmadhab Bose and others Vs. Ananta Ram Bagdi and others and Ramnath Sil and Another Vs. Siba Sundari Debya and Another, . The withdrawal of the suit, with liberty to bring another suit, was an act done by the plaintiffs sufficient to indicate the intention of cancelling the lease and ejecting the defendant from the holdings. The plaintiffs have accomplished their intention by bringing the present action for ejectment.

It is thus clear that the plaintiffs are entitled to eject the defendant No. 1, whether the tenancy was created before or after the Transfer of Property Act.

I, therefore, hold that the defendant has forfeited the lease and the plaintiffs are entitled to recover possession in the present suit. The result is that agreeing with the views of the Courts below I dismiss the appeal with costs.