- (1.) THIS is a second appeal by the defendant arising out of a suit for ejectment of a shop and Malia situate in Mohalla Pungalpara, Jodhpur.
(2.) THE disputed property was mortgaged with one Radhakishen Shrimali. Plaintiffs' case was that they had redeemed the mortgage from the son of Radhakishen and let out the property to the appellant on 5th January, 1954 at a monthly rental of Rs. 10/ -. which was later on increased to Rs. 15/- p. m. It was alleged that as the defendant had denied the title of the plaintiffs as landlord before the institution of the suit in the notice given by his counsel on 24th June, 1957 and also renounced his own character as a tenant he was liable to be ejected under sec. 13 (f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It was also alleged that after receiving the defendant's notice, plaintiffs terminated the defendant's tenancy by a notice dated 9th July, 1957 with effect from Sawan Badi 15 Smt. 2014, THE suit was filed by plaintiffs Nos. I to 3 sons of Jankidass, Mst. Dhanni his widow and Mst. Radha his daughter. THE rent note was in favour of plaintiffs No. 1 to 3 and their father Jankidass who died before the institution of the suit. The suit was contested by the defendant and the main pleas raised by him were: 1. that his tenancy was not determined by a valid notice which was given on behalf of the plaintiffs Nos. 1 no 3 only and not on behalf of all the plaintiffs. 2. that he had not denied the plaintiffs' title as a landlord or renounced his character as a tenant. On the contrary by his notice dated 24th July 1957, he had only made an honest enquiry from the plaintiffs as to how they were the heirs of the person who had motgaged property with Radhakishen. 3. that in any event the plaintiffs have lost their right to file a suit for ejectment because they have waived their right to do so by serving. 1 notice for determining the tenancy and also by accepting rent after the alleged denial of title. Both the courts below have overruled the defendant's pleas and have decreed the suit for ejectment. In this appeal learned counsel for the appellant has canvassed the same grounds before me. It is contended that a notice determining the tenancy must be served by all the lessors. As in the present case only plaintiffs Nos. 1 to 3 have served the notice without joining the widow and daughter of Jankidass it cannot be held to be a valid notice. Reliance is placed on Abdul Hemid vs. Bhuwaneshwar Prasad, (1) and Smt. Chhoti Dei vs. Gangadhar Misra and another, (2 ). In my opinion there is no force in this contention. Under the terms of the rent note Ex. 1 the appellant undertook to vacate the shop whenever its possession was demanded by the plaintiffs from him. Under the terms of the rent note therefore, a notice as required under sec. 106 of the Transfer of Property Act was not necessary because there was a contract to the contrary between the parties. As no notice for determining the tenancy was necessary, no objection with regard to its validity can be entertained. Besides the court below has accepted the evidence of Sohanlal plaintiff that the notice determining the tenancy was served with the consent of the widow and daughter of Jankidass and it is also clear that these two ladies have joined in the institution of the suit with plaintiffs Nos. 1 to 3 which further goes to show their consent as alleged by Sohanlal. The notice in this case, therefore, cannot be said to suffer from any defect and is a valid one. Regarding the question of disclaimer, learned counsel's contention is that the denial of landlord's title should be clear and unequivocal. An honest enquiry about the title of the plaintiffs should not be construed as a denial of the landlord's title or renunciation of the tenant's position as such. He contends that neither in Ex. 2 nor in Ex. 5 there is any clear denial of the relationship of the landlord and tenant between the patties. What is mentioned in Ex. 2 is that the plaintiffs were not the heirs of the person who had mortgaged the disputed property with Radhakishen and one Mst. Panchibai and Mst. Jainti were the real heirs of the mortgagor from whom he had purchased the equity of redemption. It was also stated in the notice that at best the plaintiffs could claim the rights of a mortgagee and the appellant was therefore, entitled to redeem it from them. According to the learned counsel the notice only discloses the true state of facts and does not amount to a denial of the plaintiffs' title as landlord. In support of his contention he has relied on Abbakka Shetthi and others Vs. Seshamma and others, (3) and Raja Sri Amar Krishna Narain Singh Vs. Sheikh Nazir Hasan and others, (4 ). In the first case it was held that: - "where a tenant merely sets up the title of a third person in a suit to which the landlord is not a party, and does not deny payment of rent to him before suit there is no such denial of the landlord's title as would entail the forfeiture of the lease. Where a tenant merely disputes the extent of the landlord's interest, it is not a denial of his title and 110 forfeiture of the lease is thereby incurred. " Similarly, in Raja Sri Amar Krishna's case, (4) it was held that: "if a lesseee has never denied his liability to pay the rent fixed by has asserted a higher status as lessee than was admitted by the landlord, an assertion does not amount to the denial of the title of the landlord or claming the title for himself and does not fall within the language of such sec. 111 (g) (2 ). " In my opinion the cases relied on by the learned counsel are clearly distinguishable. It is not possible to lay down any hard and fast rule in this connection but it depends on the language used by the tenant to see whether he has transgressed the limits of honest enquiry As stated by Woodfall in Law of Landlord and Tenant, 19, p. 431 : "in order to make either 1 verbal or written disclaimer sufficient, must amount to a direct repudiation of the relation of landlord and tenant or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, which by necessary implication is a repudiation of it. " In the present case the tenant in the notice Ex. 2 has clearly renounced his character as a such when he claimed that he had purchased the equity of redemption from the real heirs of the mortgagor and thus claimed to be the owner of the property in dispute. He further clearly denied the plaintiffs' title as landlord of the disputed property when he says in the notice that "you are not the heirs of the mortgagor and you had no right to redeem the property from the mortgagee". He has also clearly stated in the notice referring to the plaintiffs that "you are not the owners of the property in dispute. " There can therefore, be no doubt left after reading Ex. 2 that the appellant both renounced his character as such and also denied the title of the landlord. The next question is whether the plaintiffs by serving a notice Ex. 3 dated 9th July, T. 957 and determining the tenancy from Sawan Budi 15 Smt. 2014 corresponding to 27th July, 1957 and also by acceptance of rent till that date have waived or condoned the conduct of the appellant. On the analogy of sec. 112 of the Transfer of Property Act it is urged that he plaintiffs in this case have accepted rent from the appellant accruing after the date of disclaimer and also giving notice under sec. 106 of the Transfer of Property Act and treating the tenancy as subsisting on 9th July, 1957. In support of this contention reliance is placed on Shiva Prasad Singh Vs. Smt. Mandin Kumari Debi (5), Chotu Mia Vs. Mt. Sundri, (6) and Rukmini Vithu Vs. Rayaji Dattatraya Pai (7 ). Sec. 112 of the Transfer of Property Act lays down that a forfeiture under sec. 111, clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting; Provided that the lessor is aware that the forfeiture has been incurred. Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture; such acceptance is not waiver. " Clause (g) of sec. 111 refers to the determination of lease of immovable property by forfeiture where the lessee renounces his character as such by setting up a title in a third person, or by claiming title in himself. Where, therefore, the tenancy is determined by forfeiture by denial of landlord's title by the tenant and the landlord having knowledge of forfeiture accepts rent after the forfeiture he will be deemed to have waived the forfeiture by his conduct. In the present case it is not disputed that rent was demanded and accepted by the plaintiffs upto the date of the determination of the tenancy i. e. , 27th July, 1947, but the point for consideration is whether by such acceptance of rent the plaintiffs waived the conduct of the tenant. A perusal of the notice Ex. 3 dated 9th July, 1957, shows that the plaintiffs categorically and in unambiguous terms informed the appellant that since he has denied their title in the notice Ex. 2, they did not want to retain him as their tenant. By the same notice they asked the tenant to vacate the shop by Sawan Badi 15 Smt. 1014 and also to pay rent upto that date. It was also mentioned that in case the shop was not vacated by the said date his possession would be unlawful and he would be liable to pay damages for use and occupation at the rate of Re. 1/- per day. It is clear from this notice that the intention of the plaintiffs was not to condone the act of the appellant but in view of his conduct to exercise their right of ejecting him from the disputed shop. From the language of this notice no such inference that the plaintiffs in any way waived or condoned the appellant's conduct can be drawn. The dominant intention of the plaintiffs by giving this notice was to treat appellant's conduct as disentitling from remaining in occupation of the disputed shop as tenant. In addition to conveying their said intention they gave him time to vacate the shop and to pay rent upto that date but without waiving their right to eject him. It is true that acceptance of rent by the landlord" accruing due after a forfeiture with knowledge of forfeiture amounts to waiver under sec. 112 of the Transfer of Property Act. But is it fatal to the rights of the landlord to seek an order of ejectment in such circumstances where in the notice he simultaneously tells the tenant to vacate the premises within 15 days and pay its rent till that period because he had forfeited the tenancy due to the denial of his title? In my opinion the answer to this should be 'no'. Because 'waiver' is an intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. In the present case there is a positive assertion to exercise the right. In Shiva Prasad Sing's case (5) forfeiture had been incurred by the breach of covenant and the landlord had stood by with full knowledge of such breach and had been accepting rent from the tenant and then gave a notice to quit. On the facts of that! case it was held that: "acceptance of rent accruing due after a forfeiture amounts to a waiver, and the giving of a notice to quit premisies also amounts to a waiver because the' giving of the notice recognised the continuance of a tenancy. " The observations of the learned Chief Justice in this case that the giving of a notice to quit also Amounts to a waiver" were considered in a later full bench decision of that Court in Chotu Mia Vs. Mt. Sundri, (6) and it was observed that: "the learned Chief Justice was careful to say that the giving of a notice to quit amounted to a waiver of the forfeiture in that particular case. " In Rukmini Vithu's case (7), no disclaimer on the part of the tenant was found but it was further held that "where in a suit for ejectment the plaintiff made an alternative ! claim that the notice given by him should be treated as a notice terminating the tenancy in suit is estopped from relying upon the forfeiture since the claim amounts to an assertion that the tenancy is still subsisting and is therefore, a waiver of forfeiture. " None of these cases, in my opinion, apply to the facts of the present case. Each case must be taken by itself and one decision in one context does not afford much guidance in a different context.
(3.) IN my opinion having regard to the contents of the notice in this case the act of the plaintiffs in accepting rent upto the period of the determination of the tenancy cannot be regarded as waiver or condonation of disclaimer by the tenant because he has elected atonce to avoid the lease. On the facts of this case therefore, and in view of the contents of Ex. 3 acceptance of rent by the landlord does not amount to waiver or condonation of the conduct of the tenant. I, therefore, do not find any force in the contentions raised by the learned counsel for the appellant. It is also important to bear in mind the scheme of the Rajasthan Premises (Control of Rent and Eviction) Act which affords protection to tenants from ejectment as long as they are ready and willing to pay rent except under conditions mentioned in sec. 13 (a to g) of the Act. During the continuance of the Act there is the obligation of the tenant to pay rent and of the landlord to accept it. Disclaimer by the tenant under the provisions of the Act entitles the landlord to invoke the jurisdiction of the court to make an order for possession and remove a bar which the Act otherwise has imposed on his rights. In my opinion the question whether a landlord has waived his right or condoned the conduct of the tenant within the meaning of clause ( f) of sec. 13 (1) is a question to be determined on the facts of each case. The act of the londlord in accepting rent upto the period he asks the tenant to vacate the premises and in the notice he makes it clear to him of his right to go to the court on account of his denial of title should not be regarded as an unequivocal act of affirmance of tenancy amounting to waiver or condonation of the conduct of the tenant and depriving him of his right to sue for ejectment. This appeal is accordingly dismissed but having regard to the facts of this case I leave the parties to bear their own costs of this appeal. Learned counsel for the appellant prays for leave to a Division Bench. Leave is granted. . ;