Vyom Prakash Gupta, J.
1. S/Shri Ishwar Dass and Om Prakash filed a suit for possession in respect to the property mentioned in the plaint on the allegations that they are the owners of tha disputed property and that the same was mortgaged with S/Shri Ganga Ram, Sant Ram and Salig Ram. In is alleged that the mortgage was redeemed by the plaintiffs on 26-1-1961. The plaintiffs have further alleged that Tara Chand defendant is in possession of the property in dispute as trespasser and he was never inducted as a tenant by the plaintiffs and if the said Tara Chand defendant had been inducted as a tenant by the mortgagees then this act of the mortgagees was mala fide and the plaintiffs are not bound by the said tenancy created by the mortgagees. This suit was filed in the court of the Senior Sub Judge, Dharamsala on 11-1-1967.
2. Defendant Tara Chand contested the suit and contended that the disputed land was given to the defendant's ancestors by plaintiffs' ancestors for residential purposes and that the defendant's father and grand-father in fact made constructions on this property and also improved the land. It was also alleged that the defendant is a permanent occupancy tenant of the land in dispute and is in possession of the same for the last more than 100 years and by virtue of Punjab Act 8 of 1953 has become its owner. The defendant also alleged that he is not a trespasser and is not liable to ejectment and that the plaintiffs had even accepted rent from him for two years on 20-12-1964. The plaintiffs were estopped by their act and conduct from filing the suit. The defendant also claimed adverse possession on the ground that from 15-6-1952 onwards he had become absolute owner of the property by virtue of Punjab Act 8 of 1953 and the suit is barred by limitation. The defendant also claimed damages in case of ejectment. Some other objections were also raised.
3. On the pleadings of the parties the following issues were framed :--
1. Is the suit correctly valued for purposes of court-fee and jurisdiction?
2. Is the site plan correct?
3. Whether the suit is barred by limitation?
4. Are the plaintiffs estopped by their acts and conduct in bringing the suit?
5. Whether any prior notice as alleged was necessary. If so, what is the effect of not serving it?
6. Is the defendant a permanent occupancy tenant of the land in suit?
7. Has the defendant become owner of the property in suit by adverse possession?
8. Whether the defendant is a trespasser?
9. To what compensation, if any, is the defendant entitled in case of ejectment?
10. Relief.
4. The Senior Sub Judge, Kangra, vide his judgment dated 6th Nov. 1968 dismissed the plaintiffs' suit and decided issues Nos. 1, 2, 3, 6 and 7 in plaintiffs' favour and issues Nos. 4, 5 and 8 against the plaintiffs. No findings were recorded on issue No. 9 as the court held that ejectment of defendant could not be ordered. The suit was dismissed on the main ground that there was relationship of landlord and tenant between the parties and tenancy had not been terminated under Sections 106 and 108 of the T. P. Act.
5. Feeling aggrieved from this judgment and decree of the Senior Sub Judge, the plaintiffs filed an appeal with the District Judge, Kangra at Dharamsala and the learned District Judge vide his judgment and decree dated 11-5-1977 accepted the appeal and decreed the plaintiffs' suit with costs throughout. The learned District Judge held that the defendant was a tenant-at-will of the disputed property and was not a trespasser. It was further held that the defendant had denied the title of the plaintiffs, therefore, this denial has resulted in the forfeiture of his tenancy. The learned District Judge further held that the defendant by reasons of forefeiture of tenancy is a trespasser and is not entitled to a notice under Section 106, T. P. Act. It was also held that defendant is not entitled to any compensation for structures which belonged to plaintiffs.
6. Defendant Tara Chand aggrieved from this judgment and decree of the learned District Judge has now come up in this appeal.
7. I have heard Shri Chhabil Dass, learned counsel for the appellant and Shri P. N. Nag, learned counsel for the respondents.
8. The learned counsel for the appellant contended that in the circumstances of the present case the District Judge has erred in holding that the defendant has forfeited his tenancy rights by denial of plaintiffs' title. It was contended that the plaintiffs have nowhere pleaded in the plaint or the replication that the defendant is or was a tenant of the suit property under the plaintiffs and so there was no question of denial of plaintiffs' title. It was also contended that the denial, if any must be prior to institution of suit and should have been pleaded in the plaint, In support of his contention the learned counsel also based his reliance on the observations made in AIR 1965 SC 1923, Raja Mahomed Amir Ahmad Khan v. Municipal Board of Sitapur.
9. The learned counsel for the respondents contended that the defendant has denied the relationship of the landlord and tenant in the written statement and has claimed adverse possession. In such circumstances he had forfeited his tenancy rights due to the denial of tenancy. The learned counsel referred to AIR 1965 SC 1923 (supra) and (1970) 72 Pun LR 223 : (AIR 1970 Punj 511) Sada Ram v. Gajjan and AIR 1971 Punj 434, Smt. Suhag Rani v. Sukhdev.
10. I have considered the contentions of the learned counsel for the parties and have gone through the records of the case.
11. To decide the controversy it is necessary to refer to the pleadings. The plaintiffs in the plaint have claimed that they are the owners of the disputed property, the defendant is a trespasser and is liable to be dispossessed. The plaintiffs have also alleged that the defendant is not a tenant of the disputed land and was never inducted as a tenant by the plaintiffs, nor any rent was settled between him and the plaintiffs. It is also stated that if the defendant has been inducted as a tenant by the mortgagees then such an act on the part of the mortgagees is mala fide and the defendant is liable to ejectment as the mortgage has been redeemed. The defendant in written statement alleged that the disputed land was given to the defendant's ancestors by the plaintiffs' ancestors for residential purposes and that defendant is a permanent occupancy tenant of the land in suit, it is also alleged that by virtue of the provisions of Punjab Act 8 of 1953 he has become an owner of the disputed property. It is also asserted that the defendant is not trespasser and that he paid rent to the plaintiffs for two years on 20-11-1964. It was also asserted that no valid notice under Section 108 of T. P. Act has been served and the suit is not competent and is barred because the defendant after having acquired ownership rights from 15-6-1952 has acquired title by adverse possession. It was further alleged that the defendant was not inducted as a tenant by the mortgagee.
12. In replication the plaintiffs alleged that the defendant has forfeited his tenancy rights due to the denial of the tenancy.
13. From the above facts it is clear that the plaintiffs have nowhere accepted the defendant as a tenant of the disputed property and have in fact treated the defendant as a trespasser. The plaintiffs have also not alleged in the plaint that by denial of title of the plaintiffs, the defendant has forfeited the tenancy rights. An indirect averment has been made in the plaint that if the defendant is proved to have been inducted as a tenant by the mortgagees then the said creation of the tenancy in favour of the defendant is mala fide and is not binding on the plaintiffs. Hence the plaintiffs' suit is on the grounds (a) that defendant was never inducted as a tenant by the plaintiffs; (b) that after the redemption of the mortgage the defendant's tenancy rights, if any, have come to an end. The defendent on the the other hand has set up a tenancy with respect to the disputed land and had alleged that he has acquired status of a permanent occupancy tenant on the land. The only avermenc of the defendant in the written statement is that as he was a permanent occupancy tenant of the suit land of 15th June, 1952 therefore, by virtue of the Punjab Act 8 of 1953, he has acquired ownership rights. The next averment of the defendant that he has acquired a title by adverse possession is also based upon the fact that as he had been vested with ownership rights on 15-6-1952 by virtue of the provisions of the Punjab Act 8 of 1953, therefore, he has become owner by adverse possession from 15-6-1952. If the written statement of the defendant is read as a whole, then it cannot be said that the defendant was denying his status as a tenant under the plaintiffs. On the other hand the defendant was all along claiming himself to be a tenant of the plaintiffs and was accepting his status as a tenant and was claiming ownership simply on the ground of an enactment. There is no allegation in the plaint that the defendant had denied the tenancy earlier to the institution of the suit and there is further no allegation in the plaint that the defendant was ever a tenant of the plaintiffs. In view of these circumstances that the defendant was never accepted as a tenant by the plaintiffs, there is no question of denying the title of the plaintiffs. For applying the provisions of Section 111 (g), T. P. Act the plaintiffs should first have accepted the existence of relationship of landlord and tenant and then should have claimed the possession on the ground of forfeiture of tenancy by denial of title. In the present case this is not the position. On the other hand the defendant is claiming tenancy rights and has stated in his written statement that he had been paying rent to the plaintiffs in the year 1964 also, which rent was accepted by the plaintiffs. In view of the aforesaid circumstances, it cannot be said ;that the defendant loses his tenancy rights by denial of the tenancy. If the defendant had been asserting ownership or adverse possession then this status was claimed by defendant on account of his being a tenant of the suit property and under the provisions of law, I have carefully gone through the authorities referred to by the learned counsel for the parties.
14. The facts in (1970) 72 Pun LR 223 : (AIR 1970 Punj 511) (supra) relied upon by the learned District Judge are quite distinguishable and are not applicable to the facts of the present case. In this case one Hazari was the owner of the property and after his death the same was inherited by his widow Smt. Malaro in the year 1933-34. After the enforcement of the Hindu Succession Act, 1956, Smt. Malaro gifted the property to one Gajjan who was the plaintiff in the aforesaid case, Gajjan filed a suit for possession against Sada Ram and others and alleged that the said Sada Ram and others were tenants under Smt. Malaro. After the gift in favour of the plaintiff, the plaintiff asked Sada Ram and others to accept him as their landlord but Sada Ram and others refused to do so and on these facts it was alleged that the plaintiff was entitled to the possession of the disputed property after ejecting them. Sada Ram and others filed written statement and denied the relationship of landlord and tenant between Smt, Malaro and themselves and also the relationship of landlord and tenant between Gajjan and themselves. They also asserted that Smt. Malaro was not owner of the suit property and could not claim any rent from them and they further claimed the adverse possession, In the light of the above pleadings the suit of Gajjan was decreed and it was held that the defendants Sada Ram and others have denied the relationship of landlord and tenant which determines their tenancy forthwith. It is important that the plaintiffs in the aforesaid case had alleged that a relationship of landlord and tenant existed between Smt. Malaro and the defendants (Sada Ram and others) and that after the transfer by Smt. Malaro in favour of Gajjan the said relationship once existed between Gajjan (plaintiff in that suit) and Sada Ram and others (defendants in that suit). In these circumstances it was held that as the defendants Sada Ram and others have denied the relationship, therefore, they had forfeited their tenancy rights.
15. In the present case there is no such assertion by the plaintiffs, that defendant was ever their tenant and in fact the plaintiffs have never accepted the existence of relationship of landlord and tenant between the parties. In such a situation there was no occasion for the defendant to have denied the relationship and thus cause forfeiture of the tenancy. Thus the facts of the authority (1970) 72 Pun LR 223 : (AIR 1979 Punj 511) (supra) are altogether inapplicable to the facts of the present case.
16. The next case AIR 1971 Pun 434 (supra) is under the provisions of East Punjab Urban Rent Restriction Act and has been decided on the basis of (1970) 72 Pun LR 223 : (AIR 1970 Punj 511) (supra). Hence this case is also not of any help.
17. The next case relied upon by both the parties is AIR 1965 SC 1923 (supra). In this case it has been held that the disclaimer or the repudiation of the landlords title must be clear and unequivocal and made to the knowledge of the landlord, In this case the tenant had asserted that the property belonged to him. This assertion was made by the tenant in the background that he was claiming title in the property as a permanent lessee with a heritable and transferable right in the property. Their lordships held that this assertion by the tenant does not amount to a disclaimer or repudiation of the landlord's title. This case helps the appellant/defendant Thus on the construction of the pleadings and the relevant stands as have been taken by the parties an the present case, I am of the firm opinion that in view of the law as laid down in AIR 1965 SC 1923 (supra) the defendant appellant cannot be said to have forfeited his tenancy rights by denial of the plaintiffs' title, In fact the defendant appellant claimed tenancy rights and the other claims with respect to ownership and adverse possession have been put forward in this background. The learned District Judge has held the defendant/appellant to be tenant of the suit property and the finding of the learned District Judge that defendant/ appellant has forfeited his tenancy right by disclaimer is apparently not correct in view of the above discussion.
18. The contention of the respondents' counsel that even if the appellant is held to be a tenant-at-will still he can be ejected without a notice under Section 106 of the T. P. Act, cannot be allowed to be raised in view of the fact that this matter was never raised in the pleadings before the courts below. In the normal course the suit against defendant-appellant is liable to be dismissed on the ground that he has been held to be a tenant and a notice under Section 106 T. P. Act had not been issued terminating his tenancy.
19. No other point was urged beforeme.
20. In view of the above discussion the present appeal succeeds and the judgment and decree dated 6th Nov., 1968 passed by the Sub-Judge, Kangra dismissing the plaintiffs suit is restored. The parties are left to bear their own costs throughout.