1. This is an appeal under Clause 15, Letters Patent against the judgment of Panchapagesa Sastri J. dismissing S. A. No. 1729 of 1947. The appeal arises out of a suit instituted by the appellant for recovery of possession of certain property from the respondent. The main defence of the respondent was that the suit property was situated in a Dharmila inam and therefore he had rights of occupancy. The ground on which the appellant sought to eject the respondent was that the respondent was in occupation under a lease for ten years dated 18-2-1935, under which he was liable to pay a rent of Rs. 120 per year but that he had committed default in payment of rent and in accordance with the provision in the lease the appellant had become entitled to recover possession of the land, that is to say, that the respondent had lost his rights by forfeiture.
The appellant alleged that before suit he had issued a registered notice to the respondent intimating that he had forfeited his rights under the lease and calling upon him to surrender possession. The suit was decreed by the learned District Munsif of Kakinada. But on appeal the learned Subordinate Judge of Kakinada dismissed the suit on the ground that the appellant had not given notice of forfeiture. Though the lease in question was of agricultural land, the learned Judge held that the provision contained in Section 111(g), Transfer of Property Act would apply as embodying a principle of justice, equity and good conscience and as the appellant had failed to prove that he had given a proper notice of forfeiture, his suit for ejectment should fail.
Against this decision of the Subordinate Judge there was a second appeal which was also dismissed by Panchapagesa Sastri J. on the same ground, viz., that the provision contained in Section 111(g), Transfer of Property Act would apply to the lease in question. He came to this conclusion mainly on the authority of the decision of a single Judge, Chandrasekhara Aiyar J. in --'Umar Pavlur v. Dawood Rowther', AIR 1947 Mad 68 (A). The learned Judge however granted leave to appeal.
2. Mr. K. Bhimasankaram on behalf of the appellant brought to our notice the recent decision of the Supreme Court in -- 'Namdeo v. Narmadabai', AIR 1953 SC 223 (B) in which it has been held that the provision in Section 111(g), Transfer of Property Act, as to notice in writing as a condition precedent to a suit in ejectment based on forfeiture of a lease is not based on any principle of justice, equity and good conscience. No doubt that decision related to the case of a lease made prior to the coming into force of the amendment embodied in Section 111(g), Transfer of Property Act.
But we agree with Mr. Bhimasankaram that the 'ratio decidendi' of that decision would apply equally to the present case. Their Lordships specifically referred to the decision of Chandrasekhara Aiyar J. above referred to and expressly held that that case was wrongly decided. Following this decision of the Supreme Court, we hold that the provision contained in Section 111(g) would riot apply to the suit lease which is an agricultural lease as a principle of Justice, equity and good conscience. The appeal must therefore be allowed on this point.
3. Mr. C. V. Dhikshitalu for the respondent, however, tried to support the decree of the learned Judge by attacking the finding of the lower appellate court on certain issues which were not specifically dealt with by Panchapagesa Sastri J. in the view he took as to the necessity for notice of forfeiture. These issues were discussed by the lower appellate court as giving rise to three points for determination, viz., (1) whether the suit land is a pre-settlement inam or a darmilla inam? (2) whether the defendant is estopped from contending that it is a darmilla inam? and (3) whether the defendant is bound to surrender the advantage got by him under the compromise before he can set up the plea that it is a darmila inam? On the first point, the learned Judge was inclined to hold that the suit land was situated in a darmila inam, but he held against the respondent on the other points. It is necessary to state a few further facts to understand the scope of these points, which were pressed upon us by Mr. Dhikshitalu.
4. It would appear from the evidence that the plaintiff had been granting periodical leases to the defendant in respect of the suit land, leases which were terminable. To recover rent due in respect of one of such leases, the appellant filed a suit in the Sub Court, Kakinada, S. C. No. 464 of 1932. In that suit, the respondent raised the objection that the civil court had no jurisdiction because the suit land was situated in a darmila inam, but this objection was overruled and the suit was decreed.
Immediately after this decree, the respondent filed O. S. No. 174 of 1933 in the District Munsif's Court, Kakinada for a declaration that he was entitled to occupancy rights in the suit lands. That suit, however, did not go to trial. It ended in a compromise decree. The main terms of the compromise were that the defendant agreed to give up his contention that the suit land is situated in a darmila inam and that he had rights of occupancy and the plaintiff granted to him a lease for a period of ten years commencing from 1935. It is common ground that the suit lease was granted in pursuance of the compromise and the decree itself was passed after the lease had been executed and registered.
5. In the view we take of the effect of this compromise, it is not necessary for us to decide the point whether the suit land is situated in darmila inam. In our opinion, this compromise precludes the respondent from putting forward the plea that he is entitled to occupancy rights in the suit lands on the ground that they are situated in a darmila inam. Ordinarily, of course, a decree could bind the parties thereto, and therefore the respondent would be bound by this decree. But the contention on behalf of the respondent was that this decree really offended the provision in Section 187. Madras Estates Land Act. It was urged that the tenant could not contract out of the occupancy rights to which he was entitled under the Act.
We do not agree that the provision would apply to a case like the present. It is not a case in which there has been any final adjudication by a competent court that the suit lands were part of an estate and that the respondent was entitled to occupancy rights, but, nevertheless, he had entered into a contract to surrender such rights. On the other hand, this is a case where there was a dispute between the parties on the question, and so far as any Court had decided before the date of the compromise, such decision was against the tenant. The following observations of Bamesam J. in -- 'Ramalinga v. Ramaswami' : AIR1929Mad529 clearly show that Section 187 can have no application to a case like the present:
'It is true that under the Estates Land Act if the lands are lands in an estate a tenant cannot contract out of his occupancy rights, that is, however much he may contract to surrender the land at the end of the period of a muchilika such a clause would be void and in spite of the clause, can continue in possession; vide Section 187(1) (g), Estates Land Act. But that is not the question involved in the points raised by Mr. Varadachari. In a case where the question whether the land is an estate or not is itself in dispute and the dispute has been settled by a court of law against the contention of the tenant that the land is in an estate and, therefore, 'prima facie' the Estates Land Act does not apply and the tenant can derive the benefit of the Act only by re-agitating the doubtful question over again on the ground that the former decision is not 'res judicata' and is otherwise erroneous his conduct would amount to representation where he said that he will not re-agitate the point but submit to the decision and surrender the land at the end of the term and does not contravene the provision of Section 187(1) (g), and it seems to me the estoppel operates.'
We agree with the learned Subordinate Judge that by reason of the compromise decree the respondent is precluded from agitating the question of occupancy rights.
6. Finally Mr. Dhikshitalu prayed that the respondent may be relieved against forfeiture. In our opinion, this prayer comes far too late. At no time before the hearing of this appeal was there any such prayer, made on behalf of the respondent. The respondent had lost in the trial court, but even in the grounds of appeal to the Subordinate Judge's Court, there was no mention of relief against forfeiture. The lease itself had expired in 1945 that is before the appeal was filed in the lower appellate court. In these circumstances we cannot now entertain this new ground raised for the first time on behalf of the respondent.
7. In the result, the appeal is allowed, and the decrees in S. A. No. 1729 of 1947 and in A. S. No. 76 of 1946 in the Sub Court, Kakinada, are set aside and the decree passed by the District Munsif of Kakinada is restored. The appellant will be entitled to costs throughout.