1. The plaintiff sued to evict the defendant from the house in suit on the ground that the defendant was his tenant and that she had forfeited the tenancy by disclaimer of her landlord's title in her written statement in suit No. 227 of 1913.
2. The defendant's main plea was that she was a permanent tenant and held under one Ghurye who was a permanent tenant of the plaintiff.
3. The lower appellate Court found that the written statement of the defendant was a disclaimer of the landlord's title and that the plaintiff was justified in forfeiting the tenancy; that the question of tenancy was res judicata because in suit No. 227 of 1913 which the plaintiff had filed against the defendant before the Subordinate Judge exercising the powers of the Small Cause Court, a decree had been made against the defendant for payment of rent on the footing that she was a tenant of the plaintiff. The Judge also found on the evidence that the tenancy was not permanent.
4. Now we do not concur with the finding of the lower appellate Court on the point of res judicata. No doubt the Small Cause Court had found that the defendant was a tenant of the plaintiff and passed a decree for the plaintiff against the defendant for rent. But that finding of the Small Cause Court could not be res judicata under Section 11, Civil Procedure Code, unless the Small Cause Court has jurisdiction to decide this suit. This suit is for possession and therefore the finding of the Small Cause Court is not res judicata. It matters not that the Judge who made the decree in suit No. 227 of 1913 was also a Judge competent to try a regular suit. For it is clear under Section 33 of the Provincial Small Cause Courts Act that the Judge when trying a regular suit as a regular suit is a Court different from that of the Judge trying a suit in the Small Cause Court jurisdiction. But as the defendant has expressed her willingness to pay rent to the plaintiff, the question whether the defendant was a tenant or a sub-tenant under the plaintiff is of little importance. We therefore accept the finding that the defendant was a tenant.
5. With regard to the finding of the lower appellate Court that the defendant was not a permanent tenant, the main issue for decision is whether that tenancy is as the plaintiff alleges an annual tenancy or as the defendant contends a permanent tenancy. The lower appellate Court has found on the evidence against the defendant. But we are unable to accept that finding as the lower appellate Court has misconceived the evidence. The evidence of the witness Exhibit 40 is that the first tenant he can remember in possession of the house was a Sonar. The lower appellate Court misstates this evidence when it says that this witness has deposed that the Sonar was the first tenant of the plaintiff of the house in suit. The whole finding of the lower appellate Court as to permanent tenancy is based upon this initial mistake. For the Judge comes to the conclusion that in view of the origin of the tenancy being determined either by this witness or at a date subsequent to that which this witness speaks of, Section 83 of the Bombay Land Revenue Code is not applicable. But what the witness had said is that the house was tenanted so far back as that he could remember. This witness is of the age of eighty-three and the first tenant that he can remember is the Sonar. Then he says that the Sonar transferred his tenancy to one Banavalkar. That statement seems to be true because it is corroborated by a recital in the deed of gift of 1859 executed by the defendant's mother. That deed of gift recites the fact that the defendant's mother Ladu was paying rent to Banavalkar. There seems therefore no doubt that Banavalkar succeeded the Sonar in the tenancy. Subsequently the defendant was paying rent to Ghurye and Ghurye says that he purchased the house at a Court sale from Banavalkar. The payment of rent by the defendant to Ghurye corroborates Ghurye's statement, and there can be no doubt that the tenancy which is thus traced to Ghurye and to the defendant is the same tenancy as was traced back by Exhibit 40 to at least eighty years ago. The fact that the commencement of the tenancy cannot be determined, coupled with the presumption of continuation of the tenascy, and coupled also with the fact that a permanent building has been erected on the land at least as far back as the witness Exhibit 40 can remember, raises a strong presumption that the tenancy is permanent. We, therefore, find that the tenancy was a permanent tenancy.
6. The next question that remains is whether the tenancy has been terminated by forfeiture which the plaintiff professed to exercise by his notice of July 28, 1916, on the ground that the defendant had disclaimed the plaintiff's title by her written statement in suit No. 227 of 1913. But all that the defendant then said was: 'I have never paid rent to the plaintiff Pai. Pai now claims that he is entitled to the rent and Ghurye claims likewise. I do not know who is rightfully entitled. I am ready to pay rent at annas five per year to either of them as the Court directs.' It seems to us clear that there was here no denial of the landlord's title. The ease of Doe dem. Calvert v. Frowd (1828) 4 Bin. 557, cited by the respondent's pleader, is not in point; because in that case there was a distinct refusal to recognise the remainderman as landlord. The case is more analogous to those of Doe dem. Williams v. Cooper (1840) 1 M. & G. 135 and Jones v. Mills (1861) 10 C.B.N.S. 788.
7. The remarks of Erle C.J. in Jones v. Mills, quoting Tindal C.J. in Doe dem. Williams v. Cooper, are cited with approval in H. Matheivson v. Jadu Mahto (1908) 12 C.W.N. 525. and are particularly in point. The learned Judge said (p. 139):--
A disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another, or by claiming title in himself.' Here, the [tenant] did not set up the title of another, neither did he affect to claim title in himself: but he required further information before he would pay the rent to anybody. He acknowledged himself to be tenant, and was ready to pay rent to the right person.
8. That is exactly the ease here. For the defendant did not dispute that the plaintiff was the owner. She only wanted to be protected against the possible claim by Ghurye and said that she was willing to pay rent to the right person. That written statement therefore afforded no ground for forfeiture of the tenancy.
9. Again the plaintiff by his conduct in this suit is estopped from relying upon the forfeiture. Because he made an alternative claim in his plaint that his notice of July 28, 1915, should be treated as a notice terminating the annual tenancy as from July 1, 1917. This was clearly inconsistent, with the claim that the tenancy had been terminated by forfeiture as from the date of notice. It amounted to an assertion that the tenancy was still subsisting and was therefore waiver of the forfeiture. See on this point the case of Evans v. Davis. (1878) 10 Ch. D. 747.
10. For these reasons we reverse the decree of the lower appellate Court and restore that of the first Court dismissing the suit.
11. The appeal is allowed with costs throughout.