JUDGMENT Rachhpal Singh, J.
1. This is a plaintiff's second appeal and arises out of a suit for ejectment. The plaintiff-appellant instituted a suit in the trial Court for ejectment of the defendant from the land in suit and for the recovery of Rs. 12 as mesne profits on the allegations that the defendant who had been occupying the land in suit as a lessee had denied his title to the land as a landlord and this denial had entailed a forfeiture. The defendant resisted the claim and contended that he had not denied the title of the plaintiff as landlord which would put an end to the lease in accordance with the provisions of. Rule 111, T.P. Act. Both the Courts below have found that the plaintiff had failed to establish that there had been a denial by the defendant of the plaintiff's right as landlord in the land in suit, and therefore the plaintiff's claim for ejectment was dismissed. The present second appeal has been preferred by the plaintiff against the decision of the Court below. The plaintiff instituted a suit against the defendant to recover the zamindari dues called parjoet in 1925. The plaintift's case was that in that suit the defendant denied his title to the land and it was that, denial which according to him had caused a forfeiture of the tenancy. That suit was decreed against the defendant. After the decision of that suit the plaintiff instituted the present suit in 1928 which has given rise to this appeal. The statements in which, according to the plaintiff, there was a denial of his title by the defendant were made in the aforesaid case.
2. The question as to whether or no there was a denial of the title of the plaintiff depends on the interpretation to be placed on the written, statement and the statement made by the defendant as a witness. So far as the written statement which the defendant had filed in the former case is concerned, I am of opinion that it does not contain any clear denial of the title of the plaintiff as landlord. In para. 1 of the plaint in that case the plaintiff had asserted his title claiming to be the landlord of the land in suit. The defendant in reply stated that "para. 1 of the plaint was not admitted, as it was not known." From this it cannot be inferred that there was an express denial in clear and unambiguous terms of the title of the plaintiff. As regards para. 3 of the written statement the same remarks apply. All that the defendant said in this para. 3 was that the ground rent had never been paid. In para. 1 of the additional pleas the defendant stated:
No document stipulating ground rent or proof of the contract stipulating payment of ground rent in respect of the site of the house owned and possessed by this defendant has been mentioned in the plaint. Under the circumstances the frame of the suit is incorrect and the suit, as it stands, as against this defendant, is unfit to proceed.
3. In paras. 2 and 3 of the written statement the defendant contended that the plaintiff could not realize the rent so long as he did not prove his right to realize the same. The statemet made by the defendant as a witness on 30th November 1925 however stands on a different footing. In this statement at one place the defendant states in clear terms that the land occupied by him does not carry ground rent. Then further on he says:
The land never carried any rent.... None but myself had the right to this land. I am not the tenant of any one.
4. I am of opinion that this amounts to a clear denial of the title of the landlord which would entitle the plaintiff to ask the Court that there had been a forfeiture under the provisions of Section 111, Clause (g), T.P. Act. According to the provisions of that section a lease of an immoveable property terminates if the lessee renounces his character as such by claiming a title in himself. In the statement referred to above the defendant in very clear terms says that none except himself has a right to this land and that he is-not a tenant of any one. The words used by him in Urdu are : Siwai mere is zamin men aur kisi shahs ka hag, nahin hai ham asami kisi ke nihin hain. The learned Counsel for the respondent has placed reliance on the rulings reported in Mohamad Golam v. Taranath Deb A.I.R. 1925 Cal. 1212, and Hatimullah v. Mahamad Abju Choudhury, A.I.R. 1928 Cal. 312. In Mohamad Golam v. Taranath Deb, the view taken was that it was only in case of a tenant being inducted on the land by a landlord that the tenant could not deny the title of his landlord at the inception of his tenancy; in cases where the plaintiff became the landlord by a derivative title the tenant might without incurring any forfeiture of his landlord put him to the proof of his title. In the other ruling cited by the learned Counsel for the respondent which is reported in Hatimullah v. Mahamad Abju Choudhury, A.I.R. 1928 Cal. 312, it was laid down that the principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, then he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord it could operate as forfeiture. The learned Counsel for the respondent has rightly argued in this case before me that it was open to the defendant to put the plaintiff to the proof of his title. Here it is to be borne in mind that the land held by the defendant was not leased to him by the plaintiff. The defendant purchased this site in an auction only recently. It is quite impossible that he did not know who the landlord was and if he wanted the plaintiff to prove his title to the land before claiming rent, such a course would have been perfectly justifiable and it could not have boon contended on behalf of the plaintiff that; this caused a forfeiture. This proposition cannot be disputed. In the case of Hatimullah v. Mahamad Abju Choudhury, A.I.R. 1928, Cal. 312, at p. 315, the tenant had pleaded that he was holding the land as a tenant of another person and not from the plaintiff, but if it was proved that the plaintiff was a landlord, he was prepared to pay rent to him. Where a defence of this kind is put, it cannot be said that there has been a denial of the tenancy, but the case would stand on a different footing altogether where, as in the case before me, the tenant in clear words stated that the plaintiff was not his landlord when he used the words "siwai mere is zamin men aur hisi shahs ka haq nahin hai." It clearly indicates that he not only attacked the title of the landlord but set up a title in himself. Such a denial would entail the forfeiture of the tenancy. I have, for the reasons given above no doubt in my mind that the decision of the learned Subordinate Judge to the effect that there was no forfeiture is not correct. He does not appear to have taken into consideration that part of the statement of the defendant in which there was a denial of the title of the landlord and which has been mentioned above. Ho only refers in his judgment to one statement of the defendant in his deposition, in which he said:
I am in possession of the land. I do not pay rent. I cannot say if I am the owner of the land but I am in possession, and ignores the other part in which he stated : "None but myself have a right to this land. I am not the tenant of any one." In Jaffery v. Cooper (1840) 1 Man. & G. 135, Tindal, C.J., observed:
A disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another or by claiming title in himself.
5. The doctrine of forfeiture, having regard to the conditions prevailing in this country, must be applied with the utmost possible precaution. Here, in this country we have cases in which certain dues are to be realized by the zamindars from their tenants and it will often happen that persons getting transfers from the tenants or their successors are not aware that they have to pay any dues to the zaruindar. Take the case before us as an instance. The land in suit is a piece of land in Benares City. In respect of it Parjote dues have to be paid to the zamindars. The plaintiff is the representative of the zamindar. The defendant purchased the rights of the original tenant in a piece of land. It is very likely that the defendant did not know that any Parjote had to be paid for the occupation of the land in suit. It is also possible that he was not aware that the plaintiff had become the zamindar and was therefore entitled to get Parjote dues. Now, if the defendant had only said that he did not know that the plaintiff was his landlord and that therefore he (plaintiff) should prove his right as such then I do not think that there would have been a disclaimer of the title of the landlord. Refusal to pay rent by itself cannot be said to amount to a disclaimer" - though it may be evidence of a disclaimer. Now, what is the course which the defendant should have adopted when the plaintiff sued him for Parjote dues in 1925? He should have pleaded that he did not know that the plaintiff was the zamindar of the land in suit or that he had a right to realize any dues and therefore he was not entitled to the same until he could establish his title to the same. Had the defendant set up such a case, then it could not have been said that it amounted to a denial of the title of the landlord. But he took up a different position. He stated in most clear and emphatic terms that he was not a tenant of any one and that no one else had any right in it. This was a denial of the title of the landlord. He set up a title in himself and denied that the plaintiff had any right in the land. It must, therefore, be held that the provisions of Section 111, Clause (g) of the Transfer of Property Act apply to the case and the plaintiff became entitled to eject the defendant.
6. The learned Counsel for the respondent contended that the finding of the lower appellate Court that the defendant had not disclaimed the title of his landlord was one of fact which could not be challenged in second appeal and in support of his argument he relied on the ruling of their Lordships of the Privy Council Midnapore Zamindari Co. Ltd. v. Uma Charan Mandal A.I.R. 1923 P.C. 187. It was held in that case where documents which are mere pieces of evidence are considered by the lower appellate Court in determining questions of fact, findings based on constructions or inferences drawn from such documentary evidence cannot be questioned in second appeal. In my opinion, this ruling does not help the respondent inasmuch as the learned Subordinate Judge in this case failed to take into consideration the effect of the statement of the defendant that he was not the tenant of any one. In the above cited ruling of their Lordships it was held that the construction of a document which might be the direct foundation of rights was a question of law. In Fateh Chand v. Kishen Kunwar (1912) 34 All. 579, it was laid down that the right construction of a document was a question of law which could be considered in second appeal. According to the view which I take, the right of the plaintiff is founded on a statement which the defendant made in his deposition before a Court in a former case between the parties. The question for consideration was whether or no, this particular statement amounted to a denial of the title of the plaintiff by the defendant. The lower appellate Court did not consider this aspect of the case at all, but based its conclusion on another statement made by the defendant in his deposition. Under these circumstances this Court can go into the question as to whether or no, upon a true construction of the deposition of the defendant the plaintiff has made out a case for ejectment.
7. The plaintiff has been given a decree for mesne profits. For the reasons given above I allow this appeal and setting aside the decree of the Court below dismissing the plaintiff's claim for ejectment, grant him a decree for possession over the land in suit with costs in all the Courts.
8. Dr. Malaviya counsel for the respondent asks for permission to file a Letters Patent appeal. This request is granted.