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Qadir Bakhsh and ors. Vs. Prag NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.747
AppellantQadir Bakhsh and ors.
RespondentPrag NaraIn and ors.
Excerpt:
transfer of property act (iv of 1882), section 111 - lease--forfeiture--determination--intention of lessor to determine the lease must he declared before institution of suit--ejectment. - .....must mean a complete forfeiture and not merely that a tenant has incurred liability to have his lease forfeited. the closing words of clause (g) of section 111 seam to add something to the english law on the subject and were possibly inserted in order that there might be no doubt that an alleged forfeiture must be complete before a suit is brought. the construction adopted by the calcutta high court is in accordance with the general rule that a cause of action must be complete at the date of the insitution of a suit, and cannot be completed either by the plaint or by the written statement or any other pleading in the suit. i hold that the institution of the suit was not an act showing an intention to determine the lease within the meaning of section 111, clause (g).7. i was asked by.....
Judgment:

Chamier, J.

1. These three appeals arise out of a suit brought by the respondents for the ejectment of the appellants from a plot of land in the city of Agra. The case stated in the plaint was that the six defendants were tenants of the land paying three annas a month as rent, that for five years preceding the suit the defendants had paid no rant, though they had been repeatedly required to do so, and that they had forfeited their lease by non-payment of the rent. There were other allegations regarding constructions on the land, with which we are not now concerned. The defendants filed their written statement in Jun9 1910. In September 1910, the plaintiffs applied to the Court for permission to amend their plaint by inserting in it an allegation that two of the defendants had denied the plaintiff's title to the land. The plaint was amended and the defendants were given an opportunity of filing a fresh written statement. They then denied that they had forfeited their lease either by non-payment of rent or by denying the plaintiffs' title. They pleaded that they were perpetual lessees of the land and also that the suit was not maintainable as the plaintiffs had not given them formal notice to quit.

2. The Munsif found that the plaintiffs' title in respect of half of the land had been denied by the defendant Khuda Baksh, and he gave the plaintiffs a decree for the ejectment of that defendant, and for possession of half of the land. On appeal, the Subordinate Judge gave the plaintiffs a decree for possession of the whole of the land, holding that they had forfeited their lease both by nonpayment of rent and also by denial of plaintiffs' title.

3. The first question discussed in this Court was whether the defendants held as perpetual lessees or as tenants from month to month. In the view which I take of the case it is unnecessary to decide this question.

4. The next question is, whether the defendants have forfeited their lease by non-paymeat of rant. It is neither alleged nor proved that it was a condition of the lease that it should be forfeited in case of non-payment of rent. This ground fails.

5. The next question is, whether the defendants forfeited their lease by reason of their denial of the plaintiffs' title. One of the defendants, Khuda Bakhsh, mortgaged part of a house expressly including the land. Another defendant, Qidir Bakhsh, mortgaged half the house on the land but did not expressly include the land in the mortgage. In the former case it seems that there was a denial of the plaintiffs' title to the land. In the latter it cannot be said that there was a denial of their title. It has been held that denial of a landlord's title by one of several lessees does not cause a forfeiture of the lease. But I need not discuss this question further, for, in my opinion, the plaintiffs' suit must be dismissed even if it be, proved that the defendants denied the plaintiffs' title. Section 111 of the Transfer of Propery Act, which-admittedly applies to this case, provides that a lease of immoveable property determines in various ways amongst others by forfeiture. Clause (g) of the section runs as follows: 'By forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter or the lease shall become void; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming tilte in himself, and in either case the lessor or his transferee does some act showing his intention to determine the lease.'

6. It is contended on behalf of the defendants that it has neither been alleged nor proved that the lessors did any act showing their intention to determine the lease. On behalf of the plaintiffs it is contended that the institution of the suit was sufficient to show their intention to determine the lease within the meaning of the clause. In the case of Anandamoyee v. Lakhi Chandra Mitra 33 C. 339 : 3 C.L.J. 374 it was held by Ghose and Pargiter, JJ., that in a suit of this kind it must be shown that the plaintiff declared his intention to determine the lease of the defendant and that such intention was declared by some act or otherwise before the institution of the suit. In my opinion, that decision was correct. It is contended by Dr. Tej Bahadur that Section 112 of the Transfer of Property Act shows that a forfeiture may be completed by the institution of a suit, but it appears to me that Section 112 does not show this. The opening words of the section are 'a forfeiture, under Section 111, Clause (g).' The word forfeiture must mean a complete forfeiture and not merely that a tenant has incurred liability to have his lease forfeited. The closing words of Clause (g) of Section 111 seam to add something to the English Law on the subject and were possibly inserted in order that there might be no doubt that an alleged forfeiture must be complete before a suit is brought. The construction adopted by the Calcutta High Court is in accordance with the general rule that a cause of action must be complete at the date of the insitution of a suit, and cannot be completed either by the plaint or by the written statement or any other pleading in the suit. I hold that the institution of the suit was not an act showing an intention to determine the lease within the meaning of Section 111, Clause (g).

7. I was asked by the learned Advocate for the plaintiffs to follow the course taken by the Calcutta High Court in the case cited, namely, to remit an issue to the Court below for a finding as to whether an intention to determine the tenancy was declared by the plaintiffs before the institution of the suit. In the present case, I think that I ought not to do so. As already stated, the allegation that a forfeiture had occurred by denial of the landlords' title was not in the plaint when it was filed but was added several months afterwards. The petition begins with the words 'Daryaft se malum hua.' If these words mean anythiug, they mean that the plaintiffs have come to know of the denial after the institution of the suit. If the plaintiffs were not aware of any act having been committed by the tenants which rendered the lease liable to be forfeited they could not have indicated an intention to determine the lease on that account. To frame and remit an issue would, under the circumstances, be au encouragement to the production of false evidence. I allow the appeal, set aside the decree of the Courts below and dismiss the plaintiffs' suit with costs in all three Courts. The plaintiffs are at liberty to withdraw the sum deposited in the Court below on account of rent. Mr. Ghulam Mujtaba states on behalf of his clients that they have no objection to this.


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