1. The suit out of which this second appeal arises was brought by the plaintiffs to recover possession from the principal defendants of 3 kedars of land appertaining to taluk Lakhan Deb; that the plaintiffs had purchased the same from the vendor defendants who, not having executed a kobala, were sued therefor; and upon a decree obtained by the plaintiffs the kobala was executed by them in respect of the said land. They further allege that the principal defendants were holding the lands in question under the vendors of the plaintiffs, under a bhagidar jote right, and that after the execution of the kobala they asked the defendants to give them possession, and upon their refusal to do so they bring this suit to obtain khas possession. They base their cause of action upon the refusal, and put the date as the 19th of POUS 1302 B.S., the date of their purchase; and also the 5th of Joist 1303 (17th May 1896) when the princpial defendants were verbally requested to give up the lands.
2. The defendants, among other pleas, alleged that the land in suit appertained to mehal Raj Bullubh and not to taluk Lakhan Deb; they further alleged that the vendors of the plaintiff's had no title; that as a matter of fact, one Shibjoy Surma and others were proprietors of a 12 annas share, which the defendants had purchased from them, and that in respect of the remaining 4 annas, they were in possession of the same, by virtue of a ryoti title derived from Brojo Mohan Chowdhry.
3. The Munsif in a judgment, which is by no means satisfactory, held against the defendants and made a decree in favour of the plaintiffs.
4. The defendants appealed to the Subordinate Judge who sets out in full the allegations of the parties; and deals with the principal questions involved in the case, and which we are concerned in the present appeal. One of the objection taken before the learned Subordinate Judge against the decree for khas possession was that, inasmuch as, according to the plaintiffs' own showing, the defendants had a tenant right, they could not be evicted without notice; and the learned Subordinate Judge dealt with that question first. He says: 'In the written statement the tenants right was not Set up; on the contrary the defendants expressly denied having held as tenants. It is, however, clearly proved in the case that previously one Fyroddi held the land as tenant under the plaintiffs' vendors, and that subsequently the defendants themselves held the land as tenants under the said vendors. The plaintiffs' case is that on their demanding the defendants to surrender the land, the latter denied the plaintiffs' title and thus forfeited the tenants' right;' and then he adds: 'I, therefore, find that there was a denial of plaintiffs' title' The defendants appear to have contended before him that the statement made in the plaint and proved in the case did not amount to a denial of plaintiffs' title, but only refers to their right to re-enter. With reference to that contention the learned Subordinate Judge says as follows: 'Beading however, the statement in the light of the written statement in which the defendants most clearly denied the plaintiffs' title and their vendors title to the land, I can have no doubt that by the previous statement the defendants meant to deny not the plaintiffs' right of re-entry only, but also their title to the land itself. That being so, the denial operated a forfeiture, and the defendants were, therefore, entitled to no notice' He accordingly affirmed the decree of the First Court.
5. The defendants have appealed to this Court from the judgment and decree of the Subordinate Judge; and the question which we have to determine in this case is whether the order for khas possession was right and proper under the circumstances.
6. Under Act VIII of 1885, there is no forfeiture arising out of a denial by the tenant of the landlord's title. On this question we need only refer to the case of Debiruddi v. Abdur Rahim (1888) I.L.R. 17 Cal. 196. In that case the tenant had persistently denied the landlord's title, and yet the learned Judges held that the Bengal Tenancy Act does not recognize forfeiture on the ground of the denial of the landlord's title. But the present case has arisen in a District where Act VIII of 1885 is not applicable, and the relations of landlord and tenant are still regulated by the provisions of Bengal Act VIII of 1869, and although there is no provision in that Act providing that a tenant denying his landlord's title should forfeit his tenancy, it has been held in several cases, which bay, proceeded chiefly upon considerations of the English law, that such a denial would cause a forfeiture. As at present advised we do not wish to dissent from that view; and we must, therefore, take it that if the defendants denied before suit the title of the landlord it must be held that they have forfeited the tenancy. But a penal provision of this character can be enforced only upon an express denial; it must not be inferential or proceed upon an ex post facto circumstance. For example, the Subordinate Judge refers to the written statement to explain what transpired previously between the plaintiffs and defendants. A denial, however, in the written statement, as has been held in the case of Pranath Shaha v. Madhu Khulu (1886) I.L.R. 13 Cal. 96 would not operate as a forfeiture. The cause of action must arise before the institution of the suit; the real question for determination, here fore, is whether there was an express denial by the defendtants prior to the institution of the suit. If what transpired before suit is ambiguous in its character, it would be irregular and hardly in accordance with the principles of law to refer to the written statement to explain the intention of the defendant, for that would be proceeding upon a mere inference. The learned pleader for the appellant desired to refer to the evidence to show that what took place before suit did not amount to a denial of plaintiffs' title. In second appeal we are unable to look into the evidence to see whether there was or was not an express denial of the landlords' title in this case. Having regard, however, to the circumstances to which we have already adverted, we think this case must be sent back to the lower Appellate Court for the purpose of coming to a finding on the point of the express denial upon which alone the forfeiture can be based.
7. The appeal will remain on the file of this Court. The learned Judge will make the return of his finding within a month from the date of the receipt by him of the record.