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1. The appellants are the present representatives of a family, the Pattars, which has for a long period been in occupation of certain lands at Kurankop in the Dharwar district under a permanent tenancy. Some of these lands belong to the respondent Konher Annarao Deshpande as representative of the Deshpande family. The rest are devasthan lands held by the Deshpandes under a permanent tenancy and sub-let by them to the Pattars. As long ago as 1865 there was litigation between the predecessors of the parties in which it was settled by a compromise decree that the lands should be allowed to continue permanently in the occupation of the Pattars on payment of the assessment as fixed by Government from time to time. In 1923 the respondent brought two suits against Ishvarappa, the father of appellant Rachotappa, and Rachotappa himself, claiming to evict them as being merely annual tenants. In one suit, No. 58 of 1923, which related to those lands covered by the 1865 decree which belonged to the Deshpandes, the defendants Ishvarappa and Rachotappa pleaded and proved their permanent tenancy, and the suit was dismissed on December 12, 1923. On February 27, 1924, Ishvarappa made an application to the Mamlatdar to have his name entered in the record of rights as owner of the lands which had been the subject-matter of that suit. The application, exhibit 36, was in these terms :

3. In the other suit No. 106 of 1923, which related to the devasthan lands, the defendants denied both that Konherrao was a permanent tenant of the lands and that they were tenants under him and they set up title in themselves by adverse possession. That was on August 9, 1923. On March 11, 1924, the respondent withdrew the suit. In December, 1925, he brought the two suits, which have given rise to these Letters Patent appeals, to recover possession of the lands on the ground that the tenancy had been forfeited by the disclaimer of title, in one case in the application to the Mamlatdar already referred to, and in the other in the pleadings in the former suit. Ishvarappa who was made the sole defendant,he was the only tenant shown in the revenue records, being the head of the family died pending the hearing and his son, appellant No. 1, and nephew, appellant No. 2, were brought on record as his heirs. The trial Court allowed the claim in each case, and the decrees have been confirmed in first and second appeals. These are Letters Patent appeals from the judgment of Mr. Justice Baker. Letters Patent appeal No. 12 relates to the devasthan lands, and Letters Patent appeal No. 13 to the other lands.

8. In the case of the devasthan lands, Mr. Murdeshwar's suggestion is that the denial of respondent's title was due to a misunderstanding. He says the Pattars were misled by the fact that the record of rights mentions, not respondent Konherrao Annarao, but Ramrao Venkatrao, another member of the Deshpande family, as the wahivatdar of the devasthan and holder of the lands, and also by the fact that the present numbers of the lands do not tally with those in the decree of 1865. There is not much in the latter point. Ishvarappa was aware of the decree. He referred to it in his written statement in the suit relating to the other lands, and in the case of those lands also the numbers were not the same. But the position with regard to the devasthan lands was rather peculiar. The Deshpandes were not the owners but themselves only permanent tenants, and by virtue of some arrangement, as to the origin of which there is no evidence but which is recorded in the record of rights, the Pattars perform the worship of the deity (apparently in lieu of the assessment, which the decree of 1865 made them liable to pay) and pay only local fund to Government. It does not appear that the decree was produced or referred to in suit No. 106 of 1923, and it certainly seems significant that on the very day, November 16, 1926, when respondent in the subsequent suit relating to the devasthan lands produced an extract from the Survey Records, exhibit 24, showing the corresponding numbers and making it clear that the numbers mentioned in the decree included the numbers of the devasthan lands, the appellants put in an application, exhibit 22, giving up their contentions about adverse possession and limitation and admitting that they held the lands as permanent tenants of the Deshpandes. It is possible of course that this was merely due to the advice of their pleaders, but it may not have been so. The possibility of a genuine misunderstanding can hardly be ruled out. It is difficult to see why the Pattars should admit the tenancy in one case and deny it in the other, if they realised that the decree of 1865 applied equally to both sets of lands.

[ He cannot ] " at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.

14. Judging from the authorities which have been placed before us, wherever denial of a landlord's title by a tenant has been held effective as a forfeiture, the elements of an estoppel have always been present ( a change of position has been brought about or the bar of res judicata has arisen) or the rule that a man cannot approbate and reprobate applies. When, as in Kalli Dass Ahiri v. Monmohini Dassee, the tenant denies the landlord's title in a suit for rent, the result is that the landlord cannot recover the rent and the tenant escapes liability to pay it. So in the other cases cited in the argument, Mahipat v. Ldkshman (1900) I.L.R. 24 Bom. 426 : s.c. 2 Bom. L.R. 228, Gopal Ram Mohuri v. Dhakeshwar Pershad Narian Singh (1908) I.L.R. 35 Cal. 807, and Padmanabhaya v. Ranga, the tenant obtained some advantage by his disclaimer and the position of the landlord was prejudiced. But, in the present case, it does not appear that there is any estoppel or bar of res judicata, nor is there really any question of the tenant enjoying the advantages of two inconsistent positions. It is here that the peculiar character of this tenancy becomes important. Not only is it a tenancy in perpetuity, a thing unknown to the English law, but it is a tenancy from which the landlord derives no benefit and can derive no benefit as long as it subsists. There is no rent reserved in the ordinary sense. The tenant pays the Government assessment only (in the case of the devasthan lands apparently only the local fund), and, though the compromise decree of 1865 provides that it is to be paid to the landlord, that only meant apparently that it was to be paid to Government through him. In practice it is probably paid direct to the village officers. No claim for arrears of rent or assessment was made in suit No. 58 of 1923, and though arrears of rent were claimed in the other suit, there appears to have been no justification for the claim. We can only go by the decree of 1865 and the entries in the record of rights in the absence of any evidence to contradict them. These are the materials upon which respondent wishes the Court to pronounce that the tenancy is forfeited. Upon this basis when the respondent filed his suits in 1923 against his tenants he was putting forward a completely unsustainable claim. His assertion that they were annual tenants was untrue. It was a permanent tenancy, the terms of which gave him no right to make any claim against the tenants of any kind as long as they paid the assessment, and as far as the record shows there was no question of their having failed to pay the assessment to Government. Therefore, the disclaimer of title has not resulted in any advantage to the tenants to which they were not entitled under their tenancy, nor has it deprived the landlord of any advantage to which he was entitled as owner.