Bhargava, J - (1.) THIS is a second appeal by the defendant in a suit for possession of certain apartments situated in a house in village, Jahar Keda, District Alwar.
(2.) PLAINTIFF's case is that during the communal disturbances while he had left the village, the disputed property was declared evacuee property and in his absence, was allotted to the defendant for residential purposes. On his application the property was restored to him by the Custodian by his order dated 14th September, 1955 and the plaintiff was given symbolical possession on 17th February, 1956. The defendant at first promised to execute a rent note in favour of the plaintiff but latter on failed to do so and refused to deliver possession to him. The plaintiff thereupon served him with a notice on 6th March, 1956 but the defendant denied the title of the plaintiff on 15th May, 1957. The plaintiff therefore, claimed recovery of possession from the defendant. The defendant contested the suit. He admitted that the disputed property was allotted to him by the Custodian. However he denied that the disputed property belonged to the plaintiff. He stated that the property in fact belonged to Deena and Moosa who are the brothers of the plaintiff. The trial court dismissed the claim for possession on the ground that though the plaintiff had failed to prove his title, the defendan-tenant's possession had become wrongful because he denied the title of his landlord. On appeal by the defendant, the learned Civil Judge, Alwar held that the defendant was a lessee of the disputed property and since he has denied the title of the plaintiff and has also received a notice from the plaintiff, he has forfeited the tenancy under sec. 111 of the Transfer of Property Act and is liable to eviction. The learned Civil Judge also held that the plaintiff had succeeded in proving his title to the disputed property and it was established that the house was ancestral and all the three brothers lived together in that house. Even if it is not held that the disputed house was owned exclusively by the plaintiff, the plaintiff should succeed in this suit because he is one of the three joint owners of the property and as such he is entitled to recover possession form any trespasser such as the defendant. It is not disputed that the property in dispute was evacuee property. There is also no dispute that it was allotted to the defendant by the Custodian. This fact also cannot be disputed that on the application of the plaintiff, order for restoration of the property was passed by the Custodian in his favour. Sec. 16 (3) of the Administration of Evacuee Property Act (hereinafter called the Act) provides that : "upon the restoration of the property to the evacuee or the heir, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored : Provided that every lease granted in respect of the property by or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law. Explanation: For the purpose of the proviso to this sub-section, an allotment shall be deemed to be a lease and shall have effect against the person to whom the restoration is made to the extent and in the same manner as if it were a lease. " It would thus be clear from the above proviso and the explanation that the fiction of law, relationship of landlord and tenant was brought about between the plaintiff and the defendant after the property had been restored to the plaintiff by the Custodian. The above proviso clearly states that the lease shall have effect until it is determined by lapse of time or operation of law. Any amount of denial on the part of either the plaintiff or the defendant with regard to their relationship of landlord and tenant can have no effect against the above statutory provision. But in this case both the plaintiff and the defendant admitted in their pleadings that the disputed property was allotted to the defendant by the Custodian. The only question therefore, is whether the lease in favour of the defend-dant was extinguished by lapse of time or by operation of law. It is not the case of either party that lease was granted by the Custodian to the defendant for any specific period and has determined by lapse of time. The only question therefore is whether it was determined by operation of law. It was alleged in the plaint that the defendant had refused to execute the rent note in favour of the plaintiff and had refused to deliver possession of the disputed property. On this ground it cannot be said that the tenancy was determined. Tenancy can be determined in one of the modes laid down in sec. 111 of the Transfer of Property Act. The other ground alleged was that the plaintiff served the defendant with a notice on 6th March, 1955 and the defendant denied the plaintiff's title on 15th May, 1957. It is not clear as to how this title was denied. Whether the defendant gave any reply to the notice or merely verbally denied the plaintiff's title, has not been brought out on record. It is contended on behalf of the appellant that the courts were wrong in holding that tenancy had been determined and that the defendant had become a trespasser. It is contended that under sec. 111 (g) of the Transfer of Property Act if a lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, the lessor is required to give a notice in writing to the lessee of his intention to determine the lease. In the present case no such notice is alleged to have been given by the plaintiff. In my opinion, the contention is not without force. Unless the tenancy of the defendant has been determined according to law, the plaintiff is not entitled to dispossess him from the disputed property. Before the tenancy can be said to have been determined it is necessary for the plaintiff to prove that there was a disclaimer by the tenant and expression of intention on his own part to determine the lease before the suit was filed. A disclaimer in the written statement of the defendant cannot avail the plaintiff. Disclaimer and expression of landlord's intention to determine the lease should be prior to the institution of the suit. The trial court under issue No. 4 held that as the defendant has denied the plaintiff's title, his possession has become that of a trespasser. The court was, therefore, clearly wrong in holding that he had denied the plaintiff's title in the course of the suit. The learned Civil Judge also did not record finding that there was any disclaimer on the part of the defendant before the institution of the suit and was followed by a notice by the lessor. It will be clear from paragraph 9 of the plaint itself that the plaintiff gave a notice to the defendant before he had denied his title. The notice was given on 6th March, 1956 and the defendant is alleged to have denied the title of the plaintiff on 15th May, 1957. After 15th May, 1957, no notice as required by sec. 111 (g) is alleged to have been given by the plaintiff. Since the plaintiff has failed to prove that there was any disclaimer on the part of the defendant before the institution of the suit and the tenancy had been determined in accordance with law he is not entitled to file a suit for possession against the defendant. As long as the tenancy subsisted, defendant cannot be dispossessed from the disputed property. Both the courts below were wrong in holding that the defendant was a trespasser and liable to be dispossessed in the present suit. The decision in Radhanath Saikia Vs. Maniklal Barkakti (1) report of which was placed before me relied upon by Mr. Agrawal is clearly distinguishable as it was not the case of either party in that case that the defendants were in occupation as tenants. This appeal is therefore, allowed, judgment and decree of the courts below are set aside and the plaintiff's suit is dismissed. In the circumstances of the case parties are left to bear their own costs throughout. . ;