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K.S. Venkatarama Iyer and ors. Vs. Ponnuswami Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad918; 163Ind.Cas.36
AppellantK.S. Venkatarama Iyer and ors.
RespondentPonnuswami Padayachi and ors.
Cases ReferredSrinivasa Ayyar v. Muthuswami Pillai
Excerpt:
- .....by reason of any forfeiture or breach of a condition, and the time, 12 years, runs from the time when the forfeiture is incurred or the condition is broken. it has been suggested that the actual neglect or refusal to serve automatically entails the forfeiture of the holding, and i have been referred to natharsa rowther v. amirtham : (1912)22mlj1 , where the incidents of this particular tenure have been investigated and reported upon by the district judge of tanjore.2. it is quite true that he states that an incident of the kasavargam tenancy is that on the tenant refusing to render service to his landlord as usual the latter is entitled to eject him forthwith. that presumably means at least that he can sue to eject him without first giving him a notice such as is required by.....
Judgment:

Curgenven, J.

1. (His Lordship remanded the appeal twice for findings on the question of title to the property and on Issues 4, 4-a and 5 and on receipt of findings from the lower appellate Court delivered the following judgment on the question of limitation). I have now to dispose of the case as it relates to Item 1. The finding is that the plaintiff has title to this item and that the defendants are his purakkudi tenants. This relationship is not disputed before me. The question of limitation is however raised. In the trial Court the suit was found to be in time on the ground that time began to run from the date of the plaintiff's notice (Ex. J-1). It is argued before me that there is evidence to show that the defendants ceased to render service some years before that notice was issued, plaintiff 1 himself having given evidence that they stopped doing service four or five years previously, which would take us back to about the year 1907. If the starting point for limitation was the cessation of service undoubtedly the suit would not, be within time. The article applicable is Article 143, Lim. Act, providing for reentry by reason of any forfeiture or breach of a condition, and the time, 12 years, runs from the time when the forfeiture is incurred or the condition is broken. It has been suggested that the actual neglect or refusal to serve automatically entails the forfeiture of the holding, and I have been referred to Natharsa Rowther v. Amirtham : (1912)22MLJ1 , where the incidents of this particular tenure have been investigated and reported upon by the District Judge of Tanjore.

2. It is quite true that he states that an incident of the Kasavargam tenancy is that on the tenant refusing to render service to his landlord as usual the latter is entitled to eject him forthwith. That presumably means at least that he can sue to eject him without first giving him a notice such as is required by Section 111, T.P. Act. The alleged authority of Ramasami Chettiar v. Ambalagaran 1915 Mad. 1135, cited before me turns out to be no authority at all for the proposition that refusal or neglect to perform service determines the tenancy as the headnote would state. A perusal of the judgment shows that this matter among others was merely referred to the lower Court for a finding. On the other hand, there is an unreported case, S.A. Nos. 796 and 797 of 1908, (Ex. N in this record), in which a Bench of this Court has approved a finding of the District Judge of Tanjore in which the following passage occurs:

The mere cessation of services would not determine the tenancy, sea the case reported in Narayanaswami Ayyar v. Vathiar Kama Ayyar (1910) M.W.N. 472. In the absence of any act on the part of the plaintiff showing his intention to determine the tenancy there could be no forfeiture and the defendant's continued occupation of the manaikats must be regarded as permissive.

3. That this is the correct view of the law seems to me to be confirmed by the decision in Srinivasa Ayyar v. Muthuswami Pillai (1901) 24 Mad. 246, and the terms of Section 111(e), T.P. Act. It is true that the Act does not apply directly to this case, but there can be no doubt that this provision in it was intended to reproduce the general law upon the subject of forfeiture and it provides that the lessor has to give notice to the lessee of his intention to determine the lease. It seems to me clear therefore that forfeiture will not be produced merely by the unilateral act of ceasing to comply with the conditions upon which the property is held but must involve also some expression of intention to enforce the forfeiture on the part of the lessor. In the present case, whether we take the plaintiff's notice, Ex. J-1 or the defendant's reply repudiating his title, the suit will equally be within time and I conclude therefore that the issue of limitation must be decided in the plaintiff's favour.

4. The only other point is as regards the compensation for that portion of the defendant's house which lies within item 1. No compensation was claimed in the written statement and the order of the District Munsif in decreeing the claim was that the super-structure should be removed. The house, it is said, stands partly on the one item and partly on the other, and I can see no alternative to directing that that portion of it which stands upon item 1 should be removed. The defendants ask for time within which to effect this. The decree will provide that they must do so within two months. Further than this it is not now possible to go in according relief in respect of this building. The result is that the second appeal is allowed with reference to item 1 and the decree of the District Munsif restored with the modification allowing time for the removal of the building. As the parties have in approximately equal measure succeeded and failed they will pay their own costs throughout.


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