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Jamsedji Sorabji Vs. Lakshmiram Rajaram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom323
AppellantJamsedji Sorabji
RespondentLakshmiram Rajaram
Excerpt:
landlord and tenant - non-payment of rent--forfeiture, relief against-co-sharer--lease from one of several co-sharers--denial of lessor's title--estoppel. - - 1. the plaintiff sued to eject the defendant, his tenant, on the ground that he had failed to pay rent for three years. under the lease, such failure operated as a forfeiture. badly a kuppagouda 2 bom. indeed, such a cause of action could not well have been considered, as it was not alleged in the plaint--prannath shaha v......to the defendant to set it up after taking a lease from the plaintiff alone--sayad fatulla v. bola printed judgements for 1884 p. 33; jethu jadhavji v. ganpatrav printed judgments for 1884 p. 286. the subordinate judge relieved against the forfeiture for non-payment of rent by allowing the defendant to pay the five years' rent due at the date of the decree, with interests and costs, within three months. the district judge, however, awarded possession of the land to the plaintiff, because the defendant's plea in his written statement amounted to a denial of the plaintiff's exclusive title--jethu jadhavji v. ganpatrav printed judgments for 1884 p. 286; and he ordered the defendant to pay costs throughout. we think that this decree is wrong, because the plaintiff's alleged cause of action.....
Judgment:

Birdwood, J.

1. The plaintiff sued to eject the defendant, his tenant, on the ground that he had failed to pay rent for three years. Under the lease, such failure operated as a forfeiture. The defendant pleaded that he had paid rent, either to the plaintiff's co-sharer, to the plaintiff and the co-sharer jointly. The Courts below rightly disregarded this plea, as it was not open to the defendant to set it up after taking a lease from the plaintiff alone--Sayad Fatulla v. Bola Printed Judgements for 1884 p. 33; Jethu Jadhavji v. Ganpatrav Printed Judgments for 1884 p. 286. The Subordinate Judge relieved against the forfeiture for non-payment of rent by allowing the defendant to pay the five years' rent due at the date of the decree, with interests and costs, within three months. The District Judge, however, awarded possession of the land to the plaintiff, because the defendant's plea in his written statement amounted to a denial of the plaintiff's exclusive title--Jethu Jadhavji v. Ganpatrav Printed Judgments for 1884 p. 286; and he ordered the defendant to pay costs throughout. We think that this decree is wrong, because the plaintiff's alleged cause of action was not any disclaimer of his title by the defendant, but merely the non-payment of rent; and forfeiture for such a breach of the covenants in a lease can be relieved against by a Court of Equity--Timmarso Puranik v. Badly a Kuppagouda 2 Bom. H.C. R. 66 ; (Woodfall's Landlord and Tenant, 13th ed., page 326). The question whether there had been such a disclaimer and denial of the plaintiff's title as would entitle him to a decree for possession, was not dealt with at all by the Subordinate Judge. Indeed, such a cause of action could not well have been considered, as it was not alleged in the plaint--Prannath Shaha v. Madhu Khulu I.L.R. 13 Cal . 96 --and any question regarding it ought not, we think, to have been raised in the appeal. We, therefore, amend the District Judge's decree by restoring that of the Subordinate Judge. The period of three months therein provided, is to date from to-day. Each party to bear his own costs in the District Court and here.


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