NIMBAR ALIAS LIMBAR KHAN Vs. TURAB ULLA

JUDGEMENT

(1.) THIS appeal by the plaintiffs arises out of a suit for recovery of khas possession of certain lands on declaration of their maliki right thereto. The plaintiffs obtained a decree in full in the trial Court, but on appeal by the defendant the decree was modified by disallowing the claim for khas possession. Against this decree the plaintiffs have preferred the present second appeal. The plaintiff's case briefly stated was that the lands in suit were let out to the defendant in 1331 B.S., corresponding to 1924, for one year only at paddy rent; that a suit for rent (Suit No. 1,088 of 1926) was instituted by the plaintiffs in which the defendant filed a written statement on 27 February 1927, repudiating the title of the plaintiffs; that the suit was consequently withdrawn on 15 September 1927, with liberty to institute a fresh suit; that Act 8 of 1869 which was then in force came to be repealed by the Sylhet Tenancy Act, 1936 (Assam Act 11 of 1936), which came into operation from 1 March 1937; that the present suit for ejectment was thereafter instituted on 21 May 1937, mainly on the ground that the defendant had forfeited his tenancy right by repudiating the title of the landlords in Suit No. 1088 of 1926. It is urged on behalf of the appellants that the Court of appeal below is in error in taking the view that the case is governed by the new Sylhet Tenancy Act (Assam Act 11 of 1936) and not by the old Act 8 of 1869; that in any event there should have been a decree for damage in favour of the plaintiffs under Section 204 of the existing Act. Regarding the first point reliance has been placed on the decision in Nizamuddin V/s. Mamtazuddin ( 01) 28 Cal. 135 and it is suggested that as soon as there was a denial of the plaintiffs title there was a forfeiture of the tenancy and nothing more was necessary to be done on the part of the plaintiffs to have a complete cause of action; that the new Sylhet Tenanoy Act has not taken away the rights which had accrued to the plaintiffs by any express provision in the Act.

(2.) NO doubt, it is true that the mere denial of the title of the landlord was sufficient under the old Act to entitle him to put an end to the tenancy, but unless he showed an intention to do so and to avail himself of his rights the tenancy subsisted. The landlord has an option in the matter and the mere denial of his title does not by itself put an end to the tenancy under the old Act. This view finds support in the decision in Srinivas Ayyar V/s. Muthusami Pillai ( 01) 24 Mad. 246 and seems to be in accordance with the general principles of English law, which would govern the case. I think, therefore, that the learned Judge in the Court below took a correct view of the law in holding that the plaintiffs not having expressed any intention to determine the tenancy while Act 8 of 1869, was in force, the right to re-enter did not accrue to them under the said Act. It is admitted that under the present Act having regard to the terms of Section 45 no such right of ejectment can be claimed by the plaintiffs on the ground of forfeiture for denying the plaintiff's title. Such being the position, the plaintiffs prayer for khas possession has in my opinion been rightly disallowed by the lower appellate Court. As regards the second point no such relief was asked for in the plaint, and no issue was framed to that effect; nor does it appear to have been urged before the lower appellate Court. Besides, having regard to the terms of Section 204 of Act 11 of 1936, the plaintiffs cannot succeed in such a claim inasmuch as the present suit was a suit in ejectment on the basis of the determination of the tenancy and was not one as between landlord and tenant as such. I do not think that the plaintiffs are entitled to ask for damages in this suit. Both the contentions raised by the appellants, therefore, fail and the appeal must accordingly be dismissed. I make no order as to costs.