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Shiam Behari Lal Gour and ors. Vs. Madan Singh - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1945All293
AppellantShiam Behari Lal Gour and ors.
RespondentMadan Singh
Excerpt:
.....by mr. yards) as well as the land encroached upon (area 125 sq. 2129 comprised both the demised land as well as a strip of land alleged to be encroached upon-it is quite possible that he was making that statement only with reference to the encroached portion of the land. if in the course' of that long statement he failed specifically to indicate that only a portion of plot no. his statement, therefore, might very well have been made in relation only to the encroached portion of the land. judged against this background and keeping in mind the fact that he was challenging the title of the plaintiff as well as that of the plaintiff's predecessor with regard to the portion of plot no. the mere fact that in making the statements in question he failed to indicate precisely which portion of..........lal on the other. suit no. 300 of 1930 was a suit for arrears of rent in respect of the demised land and suit no. 271 of 1930 related to the encroachment on a strip of land to the north of the demised plot on which pt. sohan lal had built his kothi. so far as suit no. 300 of 1930 was concerned, it is clear from the written statement filed by pt. sohan lal (ex. 4) that pt. sohan lal admitted that he was a lessee from mt. nasiban in succession to mr. j. kichak. he certainly went on to question the title of the heirs of mt. nasiban and the transferees from the heirs of mt. nasiban. it is, therefore, clear from this written statement (ex. 4) that pt. sohan lal had not the least idea of denying the title of the lessor mt. nasiban so far as the demised land was concerned. in the course of.....
Judgment:

Sinha, J.

1. This is a defendants appeal and arises out of a suit for possession of a plot of land and for Rs. 30, on account of compensation. The plot is in the city of Bulandshahr. Mt. Nasiban was admittedly its original owner. On 4th March 1903, she executed a lease in' favour of one Mr. Kichak. Kichak agreed to pay an annual rent of Rs. 5-8-0. He built a kachcha house on this land and on 12th February 1913, he sold his rights to Pt. Sohan Lal Gaur. At the time of the sale, the house was in a dilapidated condition and what passed to Pt. Sohan Lal consisted only of its materials. Pt. Sohan Lal for some time continued to pay rent to Mt. Nasiban, till she died in 1919. Her death led to a regular scramble for her estate. On the one side was her brother, Karim Bux and, on the other, her nephew, Ismail, the son of a predeceased brother. Ismail came forward with a will by Nasiban in his favour, which Karim Bux repudiated. Ismail transferred his rights to Madan Singh, the plaintiff-respondent, and to the D. A. V. High School. There was a subsequent arrangement between them and, as a result of it, two-thirds were assigned to Madan Singh and one-third fell to the D. A. V. High School Committee. The chapter of troubles opened only with the property passing into the hands of the transferees. In 1930, two suits were instituted by Madan Singh and the D. A. V. High School. One was Suit No. 271 of 1930 and the other was 300 of 1930. The former was for demolition of certain constructions over an adjacent plot and the latter for recovery of the rent of the plot, which is now in controversy. Both suits were decreed. We do not know the subsequent history of the suit for recovery of rent, but the other suit was fought up to the High Court and was finally decided in February 1935, by a learned single Judge of this Court. On 21st September 1931, Madan Singh and the D. A. V. High School served a notice on Pt. Sohan Lal terminating the lease. To this notice he never replied. He, however, acquired the rights of the D. A. V. High School. In 1934, Sohan Lal died and the present suit against his sons, for the reliefs mentioned above, was instituted on 12th May 1938.

2. This was the story with which the plaintiff came to Court and he founded his cause of action on the denial of title made by Pt. Sohan Lal on various occasions, but principally in the suit for the removal of the encroachments brought against him in 1930. The defence was that there was no such denial; nor did Sohan Lal set up a title in any third person. The plea of defective notice was also taken. Finally, it was pleaded that the defendants' father had made a substantial construction worth Rs. 40,000 on the land in dispute and the plaintiff was not entitled to an unconditional decree. The learned Munsif held that there was no denial of title. With certain other findings mostly in favour of the defendants, with which we are not concerned at this stage, he dismissed the plaintiff's suit. This decision was challenged in appeal by the plaintiff. The learned Additional Civil Judge by his judgment of 16th April 1941, while rejecting the plaintiff's prayers for possession and compensation, granted him a declaration in these terms:

The suit is decreed with costs for a declaration that the lease rights of the defendants first party in the leased land have been determined and the plaintiff is entitled to possession thereof on partition.

3. The point, therefore, which falls for consideration is whether the plaintiff is, in the events which have happened, entitled to this declaration. And its determination will involve the question whether there has been any forfeiture. The question of forfeiture is generally not free from difficulty, but the principle must be borne in mind that the law leans against forfeiture. A reading of the various sections will clearly bring out the point. Section 112, T.P. Act, runs thus:

A forfeiture under Section 111...is waived...or by any other act.

Section 113 is in these terms:

A notice given under Section 111, Clause (h), is waived, with the express or implied consent

4. The principle enshrined in these sections has been followed in Kuchwar Lime and Stone Co. v. Secretary of State ('36) 23 A.I.R. 1936 Pat. 372 and in Raman Menon v. Malabar Forest and Rubber Co., Ltd. ('35) 22 A.I.R. 1935 Mad. 163. In the latter case at p. 384, their Lordships have made the following observation:

The principle governing the construction of a clause for forfeiture is that it must always be construed strictly as against the person who is trying to take advantage of it and effect should be given to it only so far as it is rendered absolutely necessary to do so by the wording of the clause.

5. The learned Additional Civil Judge has quoted extensively from the previous statements of Pt. Sohan Lal, which he had made in the suit of 1930. He has himself held that of these only three fall within the mischief of the law. They are portions marked 1, 4 and 5, which are as below:

1. The piece of land on which my house stands bears No. 3352 in Currie's settlement, No. 2129 in Stoker's settlement. No. 2129 was included in the Abadi plot No. 1180. Number 2129 belongs to the Government.

4. I declined to pay the rent to Mt. Nasiban in 1918 when B. Pershadi Lal Sub-Inspector had told me that Mt. Nasiban was not the owner of the land and if I paid her rent I will be in trouble and so I stopped paying her rent.

5. Latrines were made on the entire plot No. 2129. The knowledge of the fact that the entire land on which my house stands and the land on the south, east and west of it belongs to the Government, came to me after 3rd February 1931.

The first clause we have read for ourselves in vernacular. It has been conceded by Mr. Shambhu Nath Seth, the learned Counsel for the respondent, that the revenue entries with regard to plot No. 2129 are in accord with the statement. It is possible that the witness was only stating before the Court the condition disclosed by those revenue entries. The first part of Clause (4) is, to my mind, immaterial. If any denial was made in the lifetime of Mt. Nasiban and she took no steps whatsoever she must be deemed to have waived her right. It is the second portion of this clause to which strong exception has been taken by Mr. Shambhu Nath, viz., 'I stopped paying her rent.' He contends that this means that not only did Pt. Sohan Lal stop paying rent to the lady, but the non-payment was continued even upto his death and his sons have followed suit. I do not so read this clause. It only refers to the state of facts as they existed during the lifetime of Mt. Nasiban. Clause (5) is also, in my opinion, not capable of an interpretation, adverse to the defendants. I am, therefore, of opinion that there has been no forfeiture. I now come to the other question whether the plaintiff is, in the events which have happened, entitled to the declaration granted to him by the learned Additional Civil Judge. The learned Judge has accepted the defendants' case that Pt. Sohan Lal and, after him, his sons stepped into the shoes of the D. A. V. High School and they now represent one-third of the entire estate.

6. In deciding the question of declaration, I have to take into account the antecedent history of the case. That involves a consideration of the conduct of Mt. Nasiban and, after her death, of her heirs and, therefore, of the transferees. It was the plaintiff's case that the forfeiture of which the defendants and their father had been guilty, arose not merely after the death of Mt. Nasiban, but even during her lifetime. The conduct of the defendants, during the lifetime of Mt. Nasiban, is not strictly relevant; but assuming that it is, far from lending countenance to the plaintiff's case, it really supports the defendants. There was a denial, I take it, in the lifetime of Mt. Nasiban. She never took any steps. After her death, there was or were, according to the plaintiff, one or several breaches or denials of title. If the plaintiff is right in asking the Court to consider the conduct of the defendants' father even during the lifetime of Mt. Nasiban, the breaches or denials of title will form one continuous process beginning with the first denial in the time of Mt. Nasiban and followed by subsequent denials after her death. If it is one continuous process, the defendants are entitled to rely upon the dictum of law laid down in Woodf all's Law of Landlord and Tenant (23rd Edn.), p. 409-a book of no mean authority-that 'long continued acquiescence in repeated breaches of covenant will usually amount to a waiver.' Once waiver is made out, even if there has been any forfeiture, the plaintiff is not entitled to any relief. The case may be approached from another point of view. There was a denial in the time of Mt. Nasiban. She, as remarked above, took no steps. The defendants' father might, therefore, have been led into an honest belief by the conduct of Mt. Nasiban that there would be no disturbance of his rights as a lessee and secure in this belief, he made the constructions on the land. Section 115, Evidence Act, embodies the principle of estoppel; but even before this Act, the principle which was laid down in a number of English eases was followed in this country. To quote just a few. In Cairncross v. Lorimer (1860) 3 Mac. H. L. 827 at p. 829, the House of Lords laid down the following dictum:

The doctrine will apply, which is to be found, I believe, in the laws of all civilised nations, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he, therefore, induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

The leading case in this country is Sarat Chunder Day v. Gopal Chunder Laha ('92) 20 Cal. 296. The principle was followed in a recent case of this Court in In re Union Indian Sugar Mills Co. Ltd : AIR1930All330 in these terms:

Authorities have laid down from time to time that people, who have induced others to act on the assertion that they were going to act in a particular manner, have not been allowed to act otherwise than in the. way promised, if the other party have acted in the manner suggested, and have thereby changed their position.

7. The learned Counsel for the respondent relies upon the case in Wilmott v. Barber (1880) 15 Ch. D. 96 and followed in this Court in Jai Narain v. Jafar Beg : AIR1926All324 . But there does not, to my mind, appear to be any real conflict between (1860) 3 Mac. H. L. 8273 and Wilmott v. Barber (1880) 15 Ch. D. 96, and at all events, the facts of this case attract the application of the principle laid down in the former. Nasiban's rights were infringed. She remained alive after such infringement and she never claimed the penalty involved in the conduct of the defendants. The constructions were made, we are informed, some time in 1927 and the notice which was served in 1931 terminating the tenancy-assuming that it was an effective notice otherwise-will have no force on the principle laid down above. I am, therefore, of opinion that apart from waiver, the principle of estoppel will also operate against, the plaintiff. I now come to the last question, whether having regard to his findings, the learned Additional Civil Judge was right in granting the declaration, which he has done. It. is conceded, as remarked above, that there has been a coalition of the two rights so far as the one-third, purchased of the D. A. V. High School, was concerned. To that extent, the defendants have become the full owners. To the extent of the remaining two-thirds, they are, on the findings, lessees. But even if the lease subsists in its entirety, is the plaintiff entitled to the declaration which has been granted to him by the learned Judge? Declaration is a matter of discretion and the plaintiff in this, case is certainly not entitled to a declaratory relief. My reasons are these:

The doctrine of the Court thus established, therefore, is that laches on the part of the plaintiff (whether vendor or purchaser), either in. executing his part of the contract or in applying to the Court, will debar him from relief. 'A party cannot call upon a Court of Equity for specific performance,' said Lord Alvanley M.B. in Milward v. Earl Thanet (1801) 5 Ves. 720n 'unless he has shown himself ready, desirous, prompt, and eager;' or, to use the words of Lord Cranworth in Eads v. Williams (1854) 4 De G. M. & G. 674 at p. 691 'specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit: Fry on Specific Performance, Edn. 6, p. 515.

8. A Bench of this Court in Nawab Begum v. A. H. Greet ('05) 27 All 678 gave full effect to this dictum and held that:

Great delay on the part of the plaintiff, in applying to the Court for specific performance of a contract of which he claims the benefit is of itself sufficient reason for the Court in the exercise of its discretion to refuse relief.

They followed the case in Milward v. Earl Thanet (180l) 5 Ves. 72. That the principle is not a new one in this country is manifest from the observations of their Lordships of the Judicial Committee made so far back as the year 1873 in Sree Narain Mitter v. Sreemutty Kishen Soondory Dassee ('72-73) I.A. Sup. Vol. 149 (P.C.) at p. 162. Say. their, Lordships:

It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for. There is so much more danger in India than here of harassing and vexatious litigation, that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.

9. It was a simple suit for possession with a prayer for compensation. These reliefs, on the findings of the learned Judge himself, the plaintiff is not entitled to. It was no part of the duty of the Court to convert a suit for possession into one for declaration. This principle was followed by their Lordships in a later case in Thakurain Jaipal Kunwar v. Bhaiya Indar Bahadur Singh ('04) 7 0.C. 239 p. 69:

A claim to a declaratory decree is not a matter of right, but that it rests with the judicial discretion of the Courts.

10. The learned Counsel for the respondent repudiates the charge of laches. His contention is that the starting point must be the notice which he sent on 21st September 1931. Prom 21st September 1931 to 12th May 1938, is a long stretch of years. He, however, maintains that, as a matter of precaution, he was bound to wait till the decisions of the two suits instituted in 1930. The judgments in those suits of the trial Court were delivered some time in 1931. One of the cases, no doubt, came up to the High Court and the judgment of this Court is dated 20th February 1935, but the defendants are entitled to say that there was no justification for waiting after 1931, the date of the judgment of the first Court, much less for waiting after 23rd January 1932, the date of the judgment of the lower appellate Court, and still less after the judgment of this Court on 20th February 1935. If the date of the notice or the judgment of the first Court is the starting point, the delay is seven years. And even if the judgment of the first appellate Court, which is the final Court on facts, is the material date, even then the delay is inexcusable. I am, therefore, of opinion that even if the contention of the learned Counsel for the respondent is accepted that the starting point must be 21st September 1931, the plaintiff is guilty of laches.

11. The plaintiff has, therefore, no right to the declaration granted to him. I now come to another aspect of this matter. Assuming that laches do not stand in his way, is the plaintiff entitled to the declaration on any other legal or equitable principle? The learned Additional Civil Judge has himself held that the plaintiff is not entitled to possession. The one-third share which now belongs to the defendants will, on partition, fall to their share. The plaintiff, therefore, stands to gain nothing by the declaration. Indeed, he stands to lose nothing by being refused this relief. I would, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. I would also dismiss the cross-objection.

Walli Ullah, J.

12. I agree with my learned brother that the appeal must be allowed and that the plaintiff's suit must be dismissed. The facts of the case have been fully set out in the judgment of my learned brother and it is, therefore, unnecessary for me to go into details. The first and foremost question which arises for decision in this appeal is whether or not the statements made by Pt, Sohan Lalin the course of his deposition (Ex. 5) in Suit No. 271 of 1930, constitute a valid ground for the contention of the plaintiff that Pt. Sohan Lal denied the title of the lessor and renounced his character of a lessee of the demised land. In the Court of the learned Munsif, the plaintiff's counsel made a statement which was recorded on paper No. 57-A (2) which indicated the passages in the deposition of Pt. Sohan Lal (Ex. 5) mentioned above which, according to him, constituted the grounds of forfeiture. The learned Munsif has marked these passages with red ink and they have been numbered as passages Nos. 1 to 7. In addition to these passages the plaintiff's counsel in his statement recorded on paper No. 57-A (2) also pointed to certain portions in the written statement (Ex. 4) and grounds of appeal (Exs. 7 (1) and 7 (2)) filed by Pt. Sohan Lal against the decision of the Court of first instance in the two Suits Nos. 300 of 1930 and 271 of 1930 as constituting denials of the title of the lessor, but both the Courts below have concurred in finding that these statements did not amount to a denial of the title of the lessor. We are, therefore, not concerned with them at this stage. Regarding the passages marked as Nos. 1 to 7 in the deposition of Pt. Sohan Lal (Ex. 5) the learned Munsif came to the conclusion that none of them constituted a disclaimer of the character of a lessee by Pt. Sohan Lal or a denial of the lessor's title. The learned Civil Judge on appeal, however, came to a contrary conclusion with regard to three of the passages in the statement of Pt. Sohan Lal, namely passages marked as Nos. 1, 4 and 5. The passages marked as Nos. 1 and 5 may be considered together. In substance they come to this that according to Pt. Sohan Lal the demised land (area 400 sq. yards) as well as the land encroached upon (area 125 sq. yards) both bear No. 3352 in Currie's settlement and No. 2129 in Stoker's settlement. According to that statement, plot No. 2129 belonged to the Government. It was also said that latrines had existed on the entire plot No. 2129. Passage No. 4 in effect said that Pt. Sohan Lal had declined to pay rent to Mt. Nasiban in 1918. He went on to add the reason why he had stopped paying her rent. In order to judge whether these three portions of the statement of Pt. Sohan Lal-and they are the only three portions of the statement on which the finding of the lower appellate Court is based regarding forfeiture-really amount to a denial of the title of the lessor and a disclaimer of the character of a lessee by Pt. Sohan Lal it is very necessary to consider the contest and the ' setting in which these statements were made.

13. It is clear that the two suits Nos. 271 of 1930 and 300 of 1930 were proceeding more or less simultaneously between the plaintiff on the one side and Pt. Sohan Lal on the other. Suit No. 300 of 1930 was a suit for arrears of rent in respect of the demised land and suit No. 271 of 1930 related to the encroachment on a strip of land to the north of the demised plot on which Pt. Sohan Lal had built his Kothi. So far as Suit No. 300 of 1930 was concerned, it is clear from the written statement filed by Pt. Sohan Lal (EX. 4) that Pt. Sohan Lal admitted that he was a lessee from Mt. Nasiban in succession to Mr. J. Kichak. He certainly Went on to question the title of the heirs of Mt. Nasiban and the transferees from the heirs of Mt. Nasiban. It is, therefore, clear from this written statement (Ex. 4) that Pt. Sohan Lal had not the least idea of denying the title of the lessor Mt. Nasiban so far as the demised land was concerned. In the course of the trial of the other suit viz., Suit NO. 271 of 1930, when Pt. Sohan Lal appeared as a witness and made the statement Ex. 5 his statements marked as Nos. 1, 4 and 5 mentioned above were certainly made by him. But it must be remembered that this Suit No. 271 of 1930 related to land other than the demised land and in this suit Pt. Sohan Lal was vehemently contesting the title of the plaintiff to that land and was setting up an adverse title in himself.

14. So far as this denial of title either of the plaintiff or of the plaintiff's predecessor is concerned, there can be no question whatsoever that it could not form a basis for the claim. of the plaintiff regarding the forfeiture of the lease under which he, i.e. Pt. Sohan Lal, held the demised land. If in-the course of a long deposition covering several pages he made the statements in question marked as Nos. 1 and 5 which in substance indicated that the plot No. 2129 belonged to Government and this plot NO. 2129 comprised both the demised land as well as a strip of land alleged to be encroached upon-it is quite possible that he was making that statement only with reference to the encroached portion of the land. If in the course' of that long statement he failed specifically to indicate that only a portion of plot No. 2129 and not the whole of it belonged to Government it seems to me that it is impossible to infer from that omission alone that he was making a definite and unequivocal statement denying the title of the lessor with regard to the demised land. He was being examined in the suit relating to the encroachment and his attention must have been wholly concentrated on the issues raised in that suit. His statement, therefore, might very well have been made in relation only to the encroached portion of the land. Furthermore, it has been definitely stated on behalf of the defendants-appellants, and it is not denied by the learned Counsel for the other side, that the revenue records at the time contained an entry that plot No. 2129 was Government property. Judged against this background and keeping in mind the fact that he was challenging the title of the plaintiff as well as that of the plaintiff's predecessor with regard to the portion of plot No. 2129 which was said to have been encroached upon, it seems to me that the statements in question could not be held to constitute a definite and unequivocal disclaimer of the title of the lessor.

15. The next statement, namely statement No. 4, which relates to the non-payment of rent to Mt. Nasiban in 1918 also, to my mind, does not really amount to a disclaimer of the title of Mt. Nasiban. Omission to pay rent or even refusal to pay it by itself, cannot be held to constitute a definite and unequivocal disclaimer of the title of the landlord. In any event, as no action was taken by Mt. Nasiban to terminate the lease on this ground, it must be deemed to have been waived. It seems to me, therefore, that the three portions of the statement of Pt. Sohan Lal marked as Nos. 1, 4 and 5 on which the learned Judge has based his finding that there was a denial of the title of the lessor, do not, when considered in the proper setting, afford any basis for that conclusion. It is settled law that a disclaimer of title of the lessor or a renunciation of the character of the lessee must be unequivocal, unambiguous, and absolutely definite. It has further been repeatedly laid down that the law leans strongly against forfeiture and that a forfeiture clause must be strictly construed against the person who is trying to take advantage of it. In the present case it seems to me that Pt. Sohan Lal has not made any statement definitely and unequivocally denying the title of the lessor. The mere fact that in making the statements in question he failed to indicate precisely which portion of plot No. 2129 belonged to Government, or was entered in the name of Government, and which portion belonged to the lessor cannot lead to the conclusion that he was definitely denying the title of the lessor to the demised land and setting up the title in a third party. In this connexion reference might be made to Woodfall's Landlord and Tenant, 19th Edn. p. 431, where the law is thus stated:

In order to make either a verbal or a written disclaimer sufficient, it must amount to a direct repudiation of the relationship of landlord and tenant, or to distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, which by necessary implication is a repudiation of it.

16. In view of the above, in my judgment, there was no disclaimer of the title of the lessor by Pt. Sohan Lal and thus the whole basis of the plaintiff's claim disappears. Questions with regard to laches or delay, waiver of the forfeiture, if any, and estoppel which have been discussed at great length by the learned Counsel for the appellants, do not, in view of my finding recorded above, arise for consideration in this appeal. I do not, therefore, express any opinion on these questions. I hold that the appeal must be allowed and the suit dismissed on the ground that there was no forfeiture incurred by reason of any of the statements that were made by Pt. Sohan Lal in his deposition (EX. 5). The cross-objections filed by the plaintiff-respondent must fail.

17. The appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance is restored. The cross-objections are dismissed. The parties will bear their own costs throughout.


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