Harbans Singh, J. - (1.) THIS order will dispose of two appeals, which have arisen out of two suits filed by Gajjan Singh against Dhani Ram etc. in one case and Bhagat Ram in the other, for possession of the land in dispute. The land in dispute in both cases was inherited by Mst. Malaro after the demise of her husband Hazuri in the year 1933 -34. The Appellants In the two cases, who were Defendants in the two suits, were reversioners of Hazuri and cultivated the land. Later, after the enforcement of the Hindu Succession Act, Mst. Malaro made a gift in favour of Gajjan Plaintiff -Respondent. In the two plaints after mentioning the facts, as stated above, it was alleged that the Defendants cultivated the land as tenants wider Ms. Malaro and paid neb -some grain in kind and a certain fixed sum of money by way of rent, that after the enforcement of the Hindu Succession Act, Mst. Malaro became the absolute owner and she had made a gift of the property to the Plaintiff, who asked the Defendants to accept him as the landlord and pay the rent to him but the Defendants refused to do so and claimed ownership in themselves and, for this reason, they have forfeited their rights as tenants and that the Plaintiff was entitled to possession. In both the cases the Defendants in the written statements insisted that they were not the tenants under Mst. Malaro. According to them, Mst. Malaro surrendered the entire estate inherited by her from her husband in their favour and, in return, the Defendants gave her some money and some grain by way of maintenance, that she did not become an absolute owner because she was never in possession and the Plaintiff had no right to claim any rent or possession from them and that, in any case, they had become owners by adverse possession. in the suit filed against Dhanl Ram etc., after taking the above -mentioned position, they further stated in paragraph 4 as follows: The possession of the Defendants is with the consent and permission of Smt. Malaro and they have been paying the share of the harvests, to her and are ready to do so, and for this reason, the suit is triable only by a revenue Court. The Defendants are ready, to give the grains at all times. As a result of the pleadings of the parties, the following issues were settled in Bhagat Ram's case: (1) Whether Smt. Malaro surrendered her estate In favour of her next reversioners, including the Defendant? If so, when and to what effect?
(2.) IF issue No. 1 is not proved, whether the Defendant is a tenant under the Plaintiff? Whether Smt. Malaro was not competent to make gift of the property in suit in favour of the Plaintiff? (4) Whether the suit is time -barred? (5) Whether the Defendant has acquired title by ad -verse possession? (6) If issue No. 2 is proved, whether this Court has the jurisdiction to try this suit? Evidence was mainly led in Bhagat Ram's case and that evidence was agreed by the parties to be read in the other case also though one or two witnesses were also examined in that case. The trial Court came to the conclusion that there was no surrender of the estate; that the Defendants were tenants under Mst. Malaro; that she was competent to make the gift and that no title has been acquired by the Defendants by way of adverse possession. The trial Court further came to the conclusion that the Defendants have forfeited their right as tenants by denial of the title of the landlord and setting up a title in themselves, and, consequently, granted a decree. On appeal, these findings were confirmed. The Defendants have filed these two appeals. 2. The main argument of the learned Counsel for the Appellants were that before the Defendants can be said to have forfeited their tenancy, it has to be established that they denied the title of the original landlord, namely, Mst. Malaro 'in clear and unmistakable terms' before the filing of the suit and that a denial in the suit does not work as a forfeiture. Secondly, it was urged that the denial to be effective for this purpose must be "by matter of record" as the term is understood in English Law. 3. In the present case there is a clear averment in both the plaints that the Defendants had denied the title of Mst. Malaro and navel also refused to make any payment ' of rent to her or to the Plaintiff. This averment has not been definitely denied in the written statement. On the other hand the Defendants have reiterated the fact that Mst. Malaro is not the owner and that they are in possession in their own right and whatever they have been paying to Mst. Malaro was merely by way of maintenance and not by way of any rent etc. and they have clearly set up an adverse title in themselves and denied the title of Mst. Malaro. In Bhagat Ram's case there is no alter native plea taken that he is ready to pay the rent to Mst. Malaro if his other pleas are found to be incorrect. The question for consideration is what is the effect of this plea having been taken In the other case. As already indicated, they categorically denied the title of Mst. Malaro either to transfer the property or to claim any rent from the Defendants as a landlord. They took up the position that the estate had been surrendered. | That being the case, these pleas are altogether inconsistent with their plea in the alternative. In any case, the question for determination is whether prior to the bringing of this suit, the Defendants have denied the title of Mst. Malaro and set up a, title in themselves "in clear and unmistakable terms". There was a clear averment in this respect and the same not having been denied but the plea of adverse possession having been specifically taken, it must be taken to have been established that prior to the suit the Defendants did deny the title of the landlord. That being the case, the mere fact that in the suit they have taken any other inconsistent plea in the alternative will not help them.
(3.) WITH regard to the second point, main reliance was placed by the learned Counsel on the Full Bench decision of the Lahore High Court reported in Mst. Gindori v. Sham Lal, ILR (1947) Lah 235 :, AIR 1946 Lah 330. Relying on the decision of the Privy Council in Maharaja of Jeypore v. Rukmini Pattamahadevi Garu ILR 42 Mad 589 :, AIR 1919 PC 1, that Full Bench came to the conclusion, though reluctantly, that - x x In the provinces of Delhi and Punjab to which the provisions of Sections 111 to 116 of the Transfer of Property, Act do not apply in terms a disclaimer of the landlords' title by a tenant does not work a forfeiture of tenancy unless there has been such a disclaimer in clear and unmistakable term prior to the institution of the suit by matter of record as the term is understood in' English Law. The learned Judges, no doubt, realised that this would make "the law in those provinces, where the Transfer, of Property Act does not apply much more stringent than the one applicable to the provinces where the Act is in force", but in view of the Privy Council decision they felt compelled to come to the abovementioned conclusion.;