JUDGMENT Sulaiman, J.
1. This is a defendants' appeal arising out of a suit for ejectment brought by the plaintiff on the ground of denial of title by the defendants who ware alleged to be the plaintiff's tenants. Both the Courts below have decreed the claim. In order to appreciate the points which have been pressed before us in appeal it is necessary to give the previous history of the dispute between the parties.
2. In 1911 the present plaintiff institued a suit for ejectment against these defendants on the ground that they were tenants at will liable to be ejected at the wish of the plaintiff. This suit was contested by the defendants, who pleaded that under an old contract they had taken land from the plaintiff's predecessor on an agreement to pay a fixed rent of annas 2 per month without any right in the landlord to eject them. The Court of first intance decreed the claim holding that the defendants had failed to prove their permanent rights. On appeal the District Judge reversed the decree, but he was overruled by the High Court which remanded the case. This time the District Judge affirmed the decree of the first Court and his own decree was affirmed by the High Court in 1917. The result was that the plaintiff obtained a decree for ejectment of the defendants on payment of the price of the materials of the house in dispute.
3. In spite of having obtained a decree for ejectment the plaintiff failed to execute it within the time allowed by law and to obtain delivery of possession through the execution department. His remedy to execute the decree became barred in the middle of June 1920.
4. Subsequently the plaintiff brought a suit for recovery of rent or compensation for use and occupation, which was ultimately decreed by the High Court in 1925. In the course of this rent suit the defendants had distinctly denied the plaintiff's title to the property. The plaintiff served a notice upon the defendants to vacate the land and after the expiry of the time fixed therein instituted the present suit for possession by the removal of the constructions. It is this which has been dismissed by the Courts below.
5. The learned advocate for the appellants contends before us that the present suit is barred by the principle of res judicata as well as by the provisions of Section 47, Civil P.C. For this contention he relies strongly on the case of Ramanand v. Jai Ram A.I.R. 1921 All. 369 which has been followed in Ramasami v. Muthayya Chetty A.I.R. 1925 Mad. 279 and Shyam Charan Das v. Satya Prasad Chaudhuri A.I.R. 1923 Cal. 252. The learned advocate for the respondent, however, contends that the principle underlying those cases cannot apply to a suit by a landlord against a person alleged to be his tenant, even though the latter may set up his adverse possession. It seems to us that in the present case it is not necessary to decide that question of law.
6. We have already remarked that in the suit of 1911 the defendants were admitting their position as tenants, that is, as occupiers of sites on monthly payments of rent without liability to ejectment. They were in substance pleading that they held the land as permanent tenants or lessees and could not be ejected so long as they paid their rents regularly. On the other hand the plaintiff was asserting that they were mere tenants at will, liable to ejectment whenever he wished it. The relation of landlord and tenant was not in dispute between the parties at all, but the only point that was in issue was the nature of the tenancy, whether it was at will or permanent. Even if the suit had been dismissed the relation of landlord and tenant would not have been put an end to but the defendants would still have continued as the tenants of the plaintiff. We are of opinion that the position of the plaintiff cannot be worse if he succeeded in obtaining a decree for ejectment and failed to execute it. In spite of this omission to obtain ejectment through the execution department the relation of landlord and tenant between the parties continued, and the defendants' status was no higher than that of permanent tenants which they had set up. The defendants in that litigation had never set up their adverse title or absolute proprietary interest in the land occupied by them.
7. Then again the subsequent litigation which resulted in a decree for rent or compensation for use and occupation in favour of the plaintiff re-affirmed the relation of landlord and tenant between the parties and further strengthened the plaintiff's position. The result of that decree was that the plaintiff's right to recover rent from the defendants was distinctly affirmed.
8. If the position of the defendants was that of tenants, even though they may be assumed to have been permanent tenants, they were subject to the liabilities of such tenants. In the absence of any contract to the contrary, under Section 111(g)(2), T.P. Act, a lease of immovable property, even though it may (be a permanent lease, determines by forfeiture in case the lessee renounces his character as such by claiming title in himself, provided that the lessor does some act showing his intention to determine the lease. That that forfeiture accrues oven on a denial of lease by a permannt tenant, is clear from the cases of Kali Das v. Monmohini Dassee [1897] 24 Cal. 440 which was approved by their Lordships of the Privy Council and Abhiram Goswami v. Shyama Charan Nandi [1909] 36 Cal. 1003 at p. 1915. The defendants undoubtedly denied the lease in their written statement filed in the rent suit which made their lease liable to forfeiture. By serving notice on the defendants the plaintiff clearly showed his intention to determine the lease. We do not think that the defendants can escape from such liability merely because a former decree for ejectment against them was allowed to lapse. The denial of the lease was a subsequent act which caused forfeiture and the present suit is based on this fresh cause of action.
9. The cases relied upon on behalf of the defendants do not in any way help them. We accordingly dismiss the appeal with costs including in this Court-fees on the higher scale.