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PATNA HIGH COURT
Shambhu Prasad Singh and B.D.Singh JJ.
Kedar Das Mohta
Versus
Nand Lal Poddar
Appeal From Appellate Decree No. 659 of 1963 ; 660 of 1963 ;
Decided On : SEPTEMBER 10, 1970
TRANSFER OF PROPERTY ACT - SECTION 111(G) - FORFEITURE OF TENANCY - NOTICE - WAIVER - SECTION 112 - CLAIM FOR RENT AFTER FORFEITURE - WHETHER WAIVER - SECTION 112, PROVISO 2 - ACCEPTANCE OF RENT AFTER SUIT FOR EJECTMENT - NOT WAIVER.
Fact of the Case:
Plaintiffs claimed title to the disputed properties based on adverse possession and attornment of tenancy by the defendants. The defendants denied the plaintiffs' title and claimed to have acquired valid title by sale deeds executed by respondent No. 6. The courts below found in favor of the plaintiffs and decreed the suit for possession and arrears of rent.
Finding of the Court:
The court held that the plaintiffs had acquired good title by adverse possession and that the defendants had attorned to them as tenants. The court also held that the alleged settlement between the plaintiffs and respondent No. 6 did not affect the plaintiffs' title as it was not supported by a registered instrument and that the defendants could not rely on the recitals in the sale deeds in favor of the plaintiffs against the plaintiffs themselves. The court further held that the defendants' tenancy was forfeited under Section 111(g) of the Transfer of Property Act due to their denial of the plaintiffs' title and that the claim for rent in the suit did not amount to a waiver of the forfeiture as the election to forfeit was complete and irrevocable when the suit was instituted.
Issues: 1. Whether the plaintiffs had acquired good title by adverse possession and attornment of tenancy by the defendants? 2. Whether the alleged settlement between the plaintiffs and respondent No. 6 affected the plaintiffs' title? 3. Whether the defendants' tenancy was forfeited under Section 111(g) of the Transfer of Property Act? 4. Whether the claim for rent in the suit amounted to a waiver of the forfeiture?
Ratio Decidendi: 1. The court held that the plaintiffs had acquired good title by adverse possession and that the defendants had attorned to them as tenants based on the concurrent findings of the courts below and the absence of any challenge to these findings by the defendants. 2. The court held that the alleged settlement between the plaintiffs and respondent No. 6 did not affect the plaintiffs' title as it was not supported by a registered instrument and that the defendants could not rely on the recitals in the sale deeds in favor of the plaintiffs against the plaintiffs themselves. 3. The court held that the defendants' tenancy was forfeited under Section 111(g) of the Transfer of Property Act due to their denial of the plaintiffs' title based on the specific statement in the plaints that the defendants were denying and interested in denying the title of the plaintiffs to the suit properties. 4. The court held that the claim for rent in the suit did not amount to a waiver of the forfeiture as the election to forfeit was complete and irrevocable when the suit was instituted, relying on the second proviso to Section 112 of the Transfer of Property Act and the Madras view in Padmanabhaya V/s. Ranga and Koragalva V/s. Jakri Beary.
Final Decision: The court dismissed both appeals with costs.
Shambhu Prasad Singh, J.
1. Questions arising for decision in these two appeals being common, they have been heard together and are being disposed of by this judgment. The res-pondents in the two appeals are also common; Nos. 1 to 5 are the plaintiffs and Nos. 6 and 7 are two of the defendants, adopted son and widow of Charmanlal Khedia. The appellants in two appeals are not commer. They are other defend-ants of the two suits and claimed title to teh properties in dispute on the basis of purchases from respondent No. 6. Title Suit No 10 of 1957 was filed in the court of the Subordinate Judge at Chaibassa. Second Appeal No. 659 of 1963 arises out of this suit The other suit was originally filed before the Munsif at Chaibassa, but, It appears subsequently this also came before the Subordinate Judge at Chaibassa and was numbered as Title Suit No. 7 of 1959 of that Court Second Appeal No. 600 of 1963 arises out of this suit.
2. Briefly stated, the case of the plaintiff- respondents in both the suits was that the properties in dispute as described in schedule A to the plaint belonged to Saligram (father of Chaman Lal Khedia) and others and stood recorded in their names in the record of revisional settlement of Porahat. In the year 1934, there was a partition suit No. 86 of 1934 of the court of the Subordinate Judge at Purulia between Saligram and his co-sharers. The dispute was referred to arbitration and according to the award of the arbitrators, which was ultimately made a decree of the court the property was allotted exclusively to the share of Saliaram. According to the award, Salig-ram was also to discharge the debts of the joint family firms Tularam Nathuram and Teipal Madangopal. The aforesaid firms were indebted to the firm Ganga-sahay Rameshwar of Rameshwar (the original plaintiff), ancestor of plaintiff-respondents, and in discharge of those debts Saligram agreed to transfer the property in dispute to the firm Gangasahay Rameshwar. The terms of the transfer were incorporated in a letter of the year 1936 and Rameshwar as proprietor of the said firm came in possession of the property. He continued in exclusive and peaceful possession of the properties in dispute openly and uninterruptedly as well as adversely to the interest of Salig-ram and his descendants for over 12 years.
In 1936, Dwarka Das (original defendant No. 1). adoptive father of appellant No. 1 and husband of appellant No. 2 oJf Second Appeal No. 659 of 1963 and both the appellants of the other appeal were in possession, of the pro per Lies described in Schedule B to the plaints (i.e.. shop Nos. 10 and 11 in Second Appeal 659/63 and shop No. 7 in the other appeal) as tenants under Saligram. They attorned as tenants to Rameshwar and started paying ants to him. The firm Gangasahay Rame-shwar owed some money to Dwarka Das and, therefore, they agreed that the rent payable by him would be adjusted as against that debt and it was so adjusted and satisfied by Jeth Sudi 15, Sambat 2000. After that Dwarka Das started paving rent in cash to Rameshwar. In 1956, there was some dispute between Dwarka Das and Rameshwar on tthe ques-tion of electric installation in the portion of the house in occupation of the former. Rameshwar insisted that he would install electricity only it rent was enhanced. Being annoyed, Dwarka Das directly applied for electric installation denying his tenancy under Rameshwar and setting up tenancy under respondent No, 6. Dwarka Das also stopped paying rent from that time. He also got filed a collusive and fraudulent application by respondent No. 6 in the Chakradbarpur Municipality challenging the mutation in the name of Rameshwar, but they could not succeed.
Dwarka Das and respondent No. 6 also set themselves to the task of winning over some of the tenants of the plaintiff-respondents including the appellants in the other appeal i.e.. Second Appeal No. 660 of 1963. Ramesbwar then filed an application before the Circle Officer, Cha-kradharpur,
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