1. This is a plaintiff's appeal. He is the owner of a Purwa situated within the Municipality of Meerut. He sued to eject the defendants from three houses on the allegation that the sites of the houses had been let originally to the father of the defendants at a rental of three annas per mensem for them to build on, on the understanding that whenever the plaintiff desired it, the defendants should vacate the land on receiving the price of the materials of the buildings. The defendants denied that the plaintiffs were the owners of the land. They said that their predecessor-in-title had acquired the sites from Government. They also pleaded that they had paid no rent to the plaintiff for over 12 years and that if the plaintiff bad any title originally, he had lost it by adverse possession.
2. The lower Court held that the plaintiff was the owner of the land but that the tenancy was a permanent one and, therefore, decreed the suit only so far as the rent was concerned. The plaintiff appealed.
3. The learned Judge has found that the tenancy, so far as the pucca house was concerned, was a permanent one and dismissed the suit.
4. With regard to two houses, however, it decreed the ejectment of the defendants from the two kachcha houses. There is no appeal from that portion of the decree. The plaintiff appeals with reference to the pucca house and three main points are urged:
(1) That once the plaintiff had established the fact that he was the owner and that the defendants had failed to prove adverse possession, the Court below ought to have decreed the ejectment of the defendants without going into any other question as to what was the relationship between the parties.
(2) It was held that if the Court was entitled to go into the question of tenancy that tenancy, as a matter of fact, came to an end in 1912 when the plaintiff brought a suit for ejectment and the defendants denied the title of the plaintiff. It is argued that this operated as a forfeiture of the lease and that, therefore the plaintiff was entitled to eject the defendants.
(3) It was objected that there was no material on the record from which the Court could find that the tenancy was a permanent one.
5. It seems to me that when the plaintiff pleaded that the tenancy was of a particular nature and the defendants denied the fact, it was open to the Court to go into the question. In fact, I think the Court was bound to find not only that there was a tenancy but also what was the nature of the tenancy because if there was no tenancy the plea of adverse possession would prevail as rent had not been paid for over 12 years.
6. On the second ground I think that under Clause (g) of Section 111 of the Transfer of Property Act something more is necessary to forfeit a lease beyond the mere denial of the landlord's title. The section says that the lessor must do some act showing his intention to determine the lease. It is true that the plaintiff brought a suit in 1912 to eject the defendant and in that suit the defendants denied the landlord's title. The plaintiff withdrew that suit and upto the filing of this suit, nine years afterwards, has done absolutely nothing to show that he did intend to determine the lease. He has not even issued notices to determine the lease before bringing the suit. Vide Nowrang Singh v. Janardan Kishor Lal Singh (1917) 45 Cal. 469 and Prag Narain v. Kadir Bakhsh (1913) 35 All. 145.
7. On the third point I think it is really a question of fact. The Court has found that the lease was granted sometime before the mutiny and that the terms of it are not definitely known. But it has found that the rent was merely nominal and has never been enhanced, that the sites were lot out for building purposes and were useless for any other purpose and that the tenants who had built on this small area have sold and mortgaged their houses without interference by the plaintiff. The house in question was built some 40 years ago and is a pucca house which cost over Rs. 4,000 to build. Under these circumstances I think the Court was justified in holding that so far as the pucca house is concerned the defendants respondents' tenancy is permanent. This is in agreement with the Privy Council ruling in Nabakumari Debi v. Behan Lal Sen (1907) 34 Cal. 902. In my opinion the decision of the Court below is right. I would accordingly dismiss the appeal with costs.
8. I agree. I wish to add only a few words. The plaintiff could not succeed without proving that the lease under which the defendants were in possession had come to an end. It was not enough for the plaintiff to prove that he was the owner of the land. If there was nothing else except the plaintiff's ownership on the one hand, and the defendants' long continued possession on the other, the plaintiff would not succeed, and for the simple reason that the defendants' possession would be regarded as adverse. The plaintiff, therefore, must plead and prove a tenancy. This having been done and established, it was further necessary for the plaintiff's success to prove that the lease had come to an end. The plaintiff could prove the determination of the lease in two ways:
(1) Either by proving forfeiture and some act on his part showing an intention to enforce the forfeiture and,
(2) By giving a notice to quit. Neither of these two conditions have been fulfilled. The suit was, therefore, bound to fail.
9. The order of the Court is that the appeal be dismissed with costs.