A tenant forfeits tenancy rights by disputing the true owner's title. Acceptance of rent post-forfeiture does not constitute waiver of the right to evict.

JUDGMENT :

ROHIT W. JOSHI, J.

1. Heard finally with the consent of learned Advocates for the respective parties.

2. The present Second Appeal is filed by the original defendant challenging decree for eviction passed against him, which is in turn confirmed by the learned First Appellate Court by dismissing the First Appeal preferred by him.

3. The present Second Appeal is filed challenging the said concurrent decrees for eviction. One Mahadev Prasad was owner of a building in which the suit property is situated. This Mahadev Prasad had bequeathed the suit property to one Premshankar, who in turn sold the suit property to the plaintiff/respondent vide registered Sale deed dated 08.09.1992, registered on 29.09.1992. The plaintiff claimed ownership over the suit property on the basis of the said sale deed.

4. The defendant/tenant had issued a notice/letter dated 15.09.1992 to Premshankar Trivedi, vendor of the plaintiff, inter alia claiming that the original owner Mahadev Prasad had prior to his demise expressed his intention to give the suit property to him. It is stated that after the demise of original owner Mahadev Prasad, the defendant was paying municipal taxes and was in peaceful settled possession of the suit property for a period of more than 16 years as a lawful owner. It is further stated that although the gift by Mahadev Prasad was oral, the same was duly acted upon by deceased Mahadev Prasad during his lifetime. The defendant/tenant thus claimed ownership over the suit property on the basis of the said alleged oral gift. Apart from this, the defendant also made alternate claim in the notice/letter dated 15.09.1992 that he had acquired ownership over the suit property by virtue of adverse possession.

5. In view of the aforesaid notice/letter, which was issued by the defendant to the vendor of the plaintiff, which somehow reached the hands of the plaintiff, the plaintiff issued a legal notice dated 19.09.1992 to the defendant, inter alia claiming that by claiming ownership over the tenanted premises (suit property) and also by questioning the title of Prem Shankar (vendor), the defendant had forfeited his character of a tenant over the suit property and was accordingly in possession of the same as a trespasser. The notice further recites that the tenancy of the defendant was forfeited as per Section 111 of the Transfer of Property Act.

This notice/letter dated 19.09.1992 is followed by another notice/letter dated 10.11.1992, wherein the plaintiff has called upon the defendant to make payment of rent regularly on the last date of each tenancy month. The notice states that failure to do so would render the defendant, ‘a habitual defaulter’. It is also pertinent to state that the notice dated 10.11.1992 makes a reference to earlier notice dated 19.09.1992 and clearly states that the stand taken in the said notice with respect to forfeiture of tenancy was maintained, even while demanding the rent. The plaintiff has stated in this notice that the demand was without prejudice to the claim of forfeiture. Thereafter, another letter dated 10.04.1993 is issued by the plaintiff to the defendant confirming receipt of amount of rent by money orders. The plaintiff has stated that the amount was accepted under protest and adjusted towards damages. The plaintiff has again confirmed that the claim of tenancy stood forfeited and was not given up. In these circumstances, the plaintiff filed a suit for eviction and possession against the defendant.

6. The defendant opposed the suit claiming protection under the provisions of th