1. The appellant was the plaintiff in the Court of first instance. The defendants-respondents held certain lands from the plaintiff under a lease for 7 years, viz., 1323 to 1329. One of the conditions of the lease was that whenever the plaintiff required the lands either for his khudkasht or for the purpose of planting trees, the defendants would vacate the lands without waiting for the expiry of the full term of the lease. The plaintiff came to Court with the allegation that he, having wanted the lands for being used as khudkasht, verbally asked the defendants in September, 1921, (during the currency of the fasli year 1329) to vacate the lands and thereafter sent a written requisition dated 29th October, 1921, asking the defendants to vacate the lands by 16th November, 1921. The defendants not having complied with the notice the suit was instituted. The suit succeeded in the Court of fist instance but was dismissed on appeal by the learned District Judge. That learned officer was of opinion that the defendants had conclusively proved that the plaintiff had no necessity for the lands in question, it having been established that the plaintiff had ample lands-of his own which he could not cultivate' himself but had to let out to tenants. In view of this fact and being also of opinion that the lease contemplated the evacuation of the lands only at the end of an agricultural year, the suit was dismissed.
2. In this Court, it has been contended that the suit was based on a breach of condition and was therefore, maintainable under Clause (c), Section 57 of the N.W.P. Tenancy Act. In my opinion Clause (c), Section 57, has no application. The condition, a breach of which is alleged to have been committed, is the condition relating to evacuation of the lands themselves. This is not clearly the meaning of the clause. The clause contemplates an independent covenant, the breach of which would entail a forfeiture of the lease. For example, if it were a condition that on the planting of trees the lease would come to an end, on the lessee planting trees it would he said that he had committed a breach of condition and thereby forfeited the lease. In my opinion Clause (c), Section 57 has no application.
3. The case really falls under Clause (b), Section 58 of the Tenancy Act. The defendants would be non-occupancy tenants under the lease, and according to the allegations made in the plaint the term of the lease expired on the plaintiff giving a notice to the defendants to vacate. If that be the case, the suit could be instituted only within 30th of June and 1st October, 1921, and not later than that. The suit was actually filed on 29th November, 1921. Evan if the suit had been instituted within the period limited by Section 63 of the Tenancy Act, the tenants could not be ejected till the expiry of the current agricultural year and, therefore, not before 30th June, 1922, vide Section 73 of the Tenancy Act.
4. There is no substance in the appeal and it is hereby dismissed with costs which will include Counsel's fees in this Court on the higher scale.