1. The plaintiff's suit is for the ejectment of the defendants on the allegation that the defendant No. 1, who was a tenant from year to year, has sold his rights to the defendant No. 2. It is admitted that no notice to quit was given as required by S. 79 of the Hyderabad Assigned Districts Land Revenue Code, 1896. Various pleas were raised by the defendants which need not be noticed. Upon the defendants pointing out that no notice to quit has been given, the plaintiff in paragraph 9 of his written statement, dated 1st May, 1914, said:
“No notice is required in this case, as defendant No. 1 being a tenant denies the title of the landlord and sets up his own title. He has, therefore, forfeited his rights of tenancy and the plaintiff is entitled to possession without giving any notice.”
2. No specific issue was framed on this point regarding the denial of title, which appears to me to refer to a denial of title not antecedent to the suit but to a denial in the course of the pleadings.
3. The second issue in the case, however, ran as follows:—Is the defendant entitled to any notice before ejectment? The defendant succeeded in the first Court but has failed in the lower Appellate Court. The reason given by the learned Additional District Judge is contained in the following quotation from the judgment:—
“He (defendant No. 1) has thrown over his tenancy and asserted adverse title or ownership by selling the property to the defendant No. 2; by that act he declared himself a trespasser and as such can be ejected as any other encroacher upon the rights of the holder might.”
4. I have read the sale-deed. I think it purports to be a sale of the rights of an ante-izara tenant. The word ‘maliki’ used in the document did not mean to convey anything more than the rights of such tenant. The document recites that the holding in question is included in the izara. In other words, the proprietary rights of the plaintiff are by implication recognised. The sale-deed proceeds to convey whatever rights the seller had in the property. The rent payable in respect of the holding is mentioned in the document. Under these circumstances the lower Appellate Court, in my opinion, has attached undue weight to the loose use of the word ‘maliki.’ My finding is that the sale purported to be one of the interest of an ante-izara tenant.
5. The respondent's Counsel relies upon the case of Baba v. Visvanath Joshi (1884) 8 Bom. 228. This case no doubt supports him but it has been dissented from in Kali Krishna Tagore v. Golam Ally (1886) 13 Cal. 248. The claim to hold as ante-izara tenant means that the landlord has no right to enhance the rent. That was exactly the case which had to be considered by the learned Judges in the Calcutta High Court, and they held that it did not amount to a repudiation of the title of the landlord. In Prag Narain v. Kadir Baksh (1913) 35 All. 145 , 18 I.C 728 it was laid down that the denial of his landlord's title by a tenant, in order to work a forfeiture, must be an unequivocal and unambiguous denial: mere non-payment of rent or even the mortgaging of the premises as belonging to the tenant does not necessarily constitute such a denial. The view taken by the Calcutta High Court has been also followed in Madras: Unhamma Devi v. Vaikunta Hegde (1894) 17 Mad. 218.
6. I am not called upon to express any opinion as to whether in the course of the pleading in this suit the defendants denied the title of the plaintiff, for it is obvious such denial cannot furnish a cause of action. This appears to me to be settled law and I need only refer to the case of Ambabhai v. Bahu (1896) 20 Bom. 759.
7. There is no law in Berar which prevents even an annual tenant from transferring his rights. So the transfer did not give rise to a cause of action for ejectment. I hold that upon the plaintiff's own allegation that the defendant No. 1 was an annual tenant the plaintiff, cannot eject him or his transferee without giving notice under S. 79 of the Berar Land Revenue Code.
8. The appeal succeeds and the decree of the lower Appellate Court is set aside and that of the first Court restored. The plaintiff's suit is, therefore, dismissed with costs throughout.
P.N/R.K
9. Appeal allowed.