1. The suit out of which this second appeal arises wasbrought by the plaintiffs to recover possession from the principal defendantsof 3 kedars of land appertaining to taluk Lakhan Deb; that the plaintiffs hadpurchased the same from the vendor defendants who, not having executed akobala, were sued therefor; and upon a decree obtained by the plaintiffs thekobala was executed by them in respect of the said land. They further allegethat the principal defendants were holding the lands in question under thevendors of the plaintiffs, under a bhagidar jote right, and that after theexecution of the kobala they asked the defendants to give them possession, andupon their refusal to do so they bring this suit to obtain khas possession.They base their cause of action upon the refusal, and put the date as the 19thof POUS 1302 B.S., the date of their purchase; and also the 5th of Joist 1303(17th May 1896) when the principal defendants were verbally requested to giveup the lands.

2. The defendants, among other pleas, alleged that the landin suit appertained to mehal Raj Bullubh and not to taluk Lakhan Deb; theyfurther alleged that the vendors of the plaintiffs had no title; that as amatter of fact, one Shibjoy Surma and others were proprietors of a 12 annasshare, which the defendants had purchased from them, and that in respect of theremaining 4 annas, they were in possession of the same, by virtue of a ryotititle derived from Brojo Mohan Chowdhry.

3. The Munsif in a judgment, which is by no meanssatisfactory, held against the defendants and made a decree in favour of theplaintiffs.

4. The defendants appealed to the Subordinate Judge who setsout in full the allegations of the parties; and deals with the principalquestions involved in the case, and which we are concerned in the presentappeal. One of the objection taken before the learned Subordinate Judge againstthe decree for khas possession was that, inasmuch as, according to theplaintiffs own showing, the defendants had a tenant right, they could not beevicted without notice; and the learned Subordinate Judge dealt with thatquestion first. He says: "In the written statement the tenants right wasnot Set up; on the contrary the defendants expressly denied having held astenants. It is, however, clearly proved in the case that previously one Fyroddiheld the land as tenant under the plaintiffs vendors, and that subsequentlythe defendants themselves held the land as tenants under the said vendors. Theplaintiffs case is that on their demanding the defendants to surrender theland, the latter denied the plaintiffs title and thus forfeited the tenantsright;" and then he adds: "I, therefore, find that there was a denialof plaintiffs title" The defendants appear to have contended before himthat the statement made in the plaint and proved in the case did not amount toa denial of plaintiffs title, but only refers to their right to re-enter. Withreference to that contention the learned Subordinate Judge says as follows:"Beading however, the statement in the light of the written statement inwhich the defendants most clearly denied the plaintiffs title and theirvendors title to the land, I can have no doubt that by the previous statementthe defendants meant to deny not the plaintiffs right of re-entry only, butalso their title to the land itself. That being so, the denial operated aforfeiture, and the defendants were, therefore, entitled to no notice" Heaccordingly affirmed the decree of the First Court.

5. The defendants have appealed to this Court from thejudgment and decree of the Subordinate Judge; and the question which we have todetermine in this case is whether the order for khas possession was right andproper under the circumstances.

6. Under Act VIII of 1885, there is no forfeiture arisingout of a denial by the tenant of the landlords title. On this question we needonly refer to the case of Debiruddi v. Abdur Rahim I.L.R (1888) . 17 Cal. 196.In that case the tenant had persistently denied the landlords title, and yetthe learned Judges held that the Bengal Tenancy Act does not recognizeforfeiture on the ground of the denial of the landlords title. But the presentcase has arisen in a District where Act VIII of 1885 is not applicable, and therelations of landlord and tenant are still regulated by the provisions ofBengal Act VIII of 1869, and although there is no provision in that Actproviding that a tenant denying his landlords title should forfeit histenancy, it has been held in several cases, which bay, proceeded chiefly uponconsiderations of the English law, that such a denial would cause a forfeiture.As at present advised we do not wish to dissent from that view; and we must,therefore, take it that if the defendants denied before suit the title of thelandlord it must be held that they have forfeited the tenancy. But a penalprovision of this character can be enforced only upon an express denial; itmust not be inferential or proceed upon an ex post facto circumstance. Forexample, the Subordinate Judge refers to the written statement to explain whattranspired previously between the plaintiffs and defendants. A denial, however,in the written statement, as has been held in the case of Pranath Shaha v.Madhu Khulu I.L.R (1886) . 13 Cal. 96 would not operate as a forfeiture. The causeof action must arise before the institution of the suit; the real question fordetermination, here fore, is whether there was an express denial by thedefendants prior to the institution of the suit. If what transpired before suitis ambiguous in its character, it would be irregular and hardly in accordancewith the principles of law to refer to the written statement to explain theintention of the defendant, for that would be proceeding upon a mere inference.The learned pleader for the appellant desired to refer to the evidence to showthat what took place before suit did not amount to a denial of plaintiffstitle. In second appeal we are unable to look into the evidence to see whetherthere was or was not an express denial of the landlords title in this case.Having regard, however, to the circumstances to which we have already adverted,we think this case must be sent back to the lower Appellate Court for thepurpose of coming to a finding on the point of the express denial upon whichalone the forfeiture can be based.

7. The appeal will remain on the file of this Court. Thelearned Judge will make the return of his finding within a month from the dateof the receipt by him of the record.

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Nizamuddin vs. Mamtazuddin and Ors. (03.08.1900 - CALHC)