1. This appeal arises out of a suit which was brought in the first Court of the Munsif at Moulvibazar by the plaintiff's, Bama Sundari Dam, the widow of one Tara Nath Dam, and Rajendra Nath Dam, the adopted son of Tara Nath Dam against Prokash Chandra Das and Gopi Charan Das who were the sons of one Gour Earn Das. The suit was instituted on 9th April 1925 and shortly afterwards and before the suit was heard, the female plaintiff died and an order was in consequence made declaring that as against her the suit had abated. The case was however proceeded with by Rajendra Nath Dam plaintiff 2, and he ultimately was successful against the defendants.
2. The suit was brought to eject the defendants from certain lands (which for the purpose of deciding this appeal it is not necessary to specify with any particularity) upon the basis that the lands were held by the defendants on a service tenure and the defendants had ever since 8th October 1913 persistently refused or at any rate withheld performance of the services due from them in respect of the lands so held. It is to be observed that the suit was brought only just within the limitation period of twelve years from the time when according to the plaintiff's case: the cause of action had first arisen. The answer made by the defendants that is to say, the substantial defence put forward by them was that the lands in question were not held as service or chakran lands or by any similar kind of tenure,, but were in fact held by them on a rent-paying basis and that they had in fact from time to time paid rent for the lands to the plaintiffs or to their predecessors-in-title. It appears that it was clearly established that the lands which were the subject-matter of the suit had undoubtedly been held by the defendants and their predecessors from the plaintiffs and their predecessors-in-title for a very considerable period of time. In the circumstances of the case it was obviously difficult, if not impossible, accurately to discover or even surmise what were the precise terms of the tenure at its inception. Before I come to deal with the main points of law that have been raised in this appeal I will first of all dispose of a subsidiary point which has been argued before us, namely, that the plaintiff Rajendra Nath was not competent to carry on these proceedings after the decease of his co-plaintiff Bama Sundari. It appears however that what the learned Munsif found as regards this point, as did the learned Officiating Subordinate Judge before whom the matter came on appeal, was that Rajendra Nath had been taken in adoption by the senior widow of Tara Nath Dam (the husband of Bama Sundari), a lady named Umatara and in consequence both the Courts below were of opinion on the evidence adduced before them that the circumstances were such that Rajendra had acquired all such right, title and interests with regard to this subject matter of the suit as had been possessed by Taranath's other widow Bama Sundari the female plaintiff' in this suit. Mr. Boy on behalf of the defendants-appellants did. not seriously press the point with regard to the competency of the proceedings subsequent to the death of Bama Sundari and therefore nothing more need be said with regard to that. We have only to concern ourselves with the merits of the case.
3. The learned Munsif made a decree in. favour of the surviving plaintiff Rajendra Nath and gave him khas possession of the. lands in dispute and ordered that as the defendant's right to hold those lands as chakran lands had determined they should remove certain ghars which were standing on one of the plots, and that in default those ghars should be removed at the cost of the defendants in execution proceedings. Against that decision the defendants appealed to the lower appellate Court and the learned Officiating Subordinate Judge of Sylhet confirmed the decree of the Court of first instance with a slight modification as regards the order for the removal of the ghars on plot 14.
4. The defendants now come before us faced with two concurrent decisions in favour of the surviving plaintiff. Mr. Boy on their behalf has urged that the plaintiff was not entitled to recover these lands for two reasons; first of all he argued that no forfeiture had been incurred at the time when this suit was instituted because the plaintiffs had not complied with the relevant provisions of Section 111, T. P. Act, 1882; and secondly, that in any event having regard to the long lapse of time between the date on which the services ceased to be rendered by the defendants and the date of the institution of these proceedings, the plaintiffs had lost whatever rights they might originally have possessed by reason of the operation of the doctrine of estoppel or of waiver. To dispose of this second point, all that need be said I think, is this; to all intents and purposes the suit was in its nature an action for ejectment. Under English legal principles it would have been described as a Common law action. It has to be determined therefore either under the appropriate provisions of the English law (which in the absence of any express provisions to the contrary obtains in this country) or by reference to any enactments relating to the matter which may have been passed by the Indian legislature. The Indian Limitation Act prescribes that in a case of this kind the landlord or as he ought perhaps more accurately be styled in this case the grantor,' has a period of 12 years within which to assert his rights by proceedings at law. In this particular case the plaintiff as the successor-in-title of the original grantor of this tenure just managed to institute his suit within the time allowed to him under the Limitation Act. Although in the circumstances one cannot but regard the delay on the part of the plaintiff with some suspicion yet one can only say that he is not precluded from succeeding, if in fact there was still a cause of action at the time when the suit was instituted and it cannot rightly be held that by the mere delay created an estoppel against himself or thereby waived his rights. Something more than simple delay would have been required in order to enable the defendants to succeed on the ground of estoppel or waiver. I come now to the real and important point taken on behalf of the appellants. Mr. Boy has argued on the authority of certain cases, which he has put before us, that the matter must be determined on the footing that the section of the Transfer of Property Act, to which I have referred, applies to the facts and circumstances of this case. We are however of opinion that the Transfer of Property Act has no application at all to the present case. To begin with, it is clear upon the findings which were arrived at in the Courts below that the relationship between the plaintiff! and the defendants or rather between their respective predecessors-in-title had been in existence for such a period of time as to relegate the inception of that relationship to a date long anterior to the passing of, the Transfer of Property Act. That of, itself would not perhaps have excluded altogether the operation of the Act if in fact it could have been shown that there was at some time or other a lease entered into between the plaintiff's predecessor and the defendant's predecessor of such a character as to bring the matter within the provisions of one or other of the various sub-clauses of Section 111.
5. There is however no trace of any definite] contract in this case. So far as we know there never was anything in the nature of a written demise as between the parties and therefore there never was any express condition as to the determination of the tenure, whatever it was, such as might have brought the case within the ambit of Section 111. I emphasize the word express.' There was, I say, no express condition or any covenant which might have provided that on breach of it the grant should become liable to forfeiture. As however the question of the applicability of Section 111 was discussed in some detail in the Courts below I think I ought to say a word or two with regard to what in our view ought to be the proper interpretation to be put upon the concluding words of Sub-clause (g), Section 111. It was argued before the learned Munsif that if the matter fell within the purview of Section 111, the landlord, that is to say, in the present case the plaintiffs, could not have succeeded in the suit because they had not done some act showing their intention to determine the lease, and it was evidently urged before the learned Munsif that the concluding sentence of Sub-clause (g) required that some act of the kind mentioned should have been done before any suit could he instituted or a cause of action arise. In support of that proposition reference was made in the Court of first instance to the case of Anandamoyee v. Lakhi Chandra Mitra  33 Cal. 339. In that case it was hold that a lessee of a service tenure incurred the forfeiture of his tenancy by denial of the landlord's title, and the landlord in a suit for ejectment would be entitled to recover judgment, if he did, by some act or other, declare his intention to determine the lease prior to the institution of the suit, otherwise the suit should be dismissed. Ghose and Pargiter, JJ., came to the conclusion that although an actual notice to quit was not necessary yet the landlord must do some overt act indicative of his intention before he could institute a suit to recover possession. Mr. Roy for the appellants in this connexion also relied upon the case of Nowrang Singh v. Janardan Kishor Lal Singh  45 Cal. 469 where it was held
that the institution of a suit for ejectment cannot be rightly regarded as the requisite act to show the intention of the landlord to determine a lease within the meaning of Section 111, Clause (g). The forfeiture must be completed and the leave 'must be determined before the commencement of the action for ejectment.
6. Mookerjee and Walmsley, JJ., in the course of their judgment in that case after quoting the words of Clause (g) said:
This makes it plain that where the rights and obligations of the parties are regulated by Section 111, Clause (g), T. P. Act, there is no determination of a lease by forfeiture, immediately on breach of covenant, but the lessor is required to do some act thereafter, showing his intention to determine the lease; in other words, the breach must be followed by an overt act on the part of the lessor before the tenancy can be deemed to have determined in the eye of the law.
7. No one can doubt the correctness of that statement of the law, but after referring to certain authorities including the case of Anandamoyee v. Lakhi Chandra Mitra  33 Cal. 339 and certain decisions of the Madras High Court the learned Judges continued:
The requirements of the Transfer of Property Act are perfectly plain, and its express provisions cannot be ignored or treated as surplusage, whatever may have been the history of the development of the law on the subject in England.
8. They then referred to a whole series of English decisions many of which however are really authorities to the effect that in English law the bringing of an action (which corresponds to an institution of a suit in this country) is of itself an act which definitely determines the lease with regard to which forfeiture has been incurred. The learned Judges then said:
It is further obvious that the institution of the suit for ejectment cannot be rightly regarded as the requisite act to show the intention of the landlord to determine the lease within the meaning of Section 111, Clause (g). The forfeiture must be completed and the lease determined before commencement of the action for ejectment, for there must be cause of action in existence antecedent to the suit;' Deo Nandan v. Meghu  34 Cal. 57 at p. 63.
9. I regret to say that with the greatest possible respect to these learned Judges I hesitate to accept the view of the law as enunciated in Nourang Singh v. Janardan Kishor Lal Singh  45 Cal. 469. I am inclined to think that with all due deference the learned Judges read more into Sub-clause (g), Section 111 than is warranted by the actual wording of it. The concluding words may not have been intended to do anything more than lay down the law as it stood at the time according to the relevant English authorities. I am fortified in that view of the matter by a judgment of the Bombay High Court which I find was delivered at or about the same time as the point was under discussion in this Court. Isabali Tayabali v. Mahadu Ekoba  42 Bom. 195 was a decision of the then Chief Justice Sir Basil Scott and Batchelor, J. I would respectfully adopt the language used by Batchelor, J., at p. 198 of the report where he says:
Now the only requirement of Section 111, Clause (g), T. P, Act is that the lessor does some act showing his intention to determine the lease. Neither in the Calcutta case nor in either of the Madras cases is any special reason given why the lessor's election must be made at some time prior to the institution of the suit, and if the election has been made at the moment when the suit is instituted, that is, at the time when the plaint is presented, it seems to me difficult to find any ground for saying that the cause of action has not completely accrued. It is clear that in England, since the Judicature Acts, the landlord's intention to enforce the forfeiture is sufficiently manifested by his bringing an action in ejectment.
10. In Toleman v. Portbury  6 Q.B. 245 it was held that by a writ of ejectment there was a final and conclusive election to put an end to the tenancy; and that, as explained by Fry, J., in Evans v. Davis  71 R.R. 800 at p. 763, was because
an action in ejectment is an unequivocal assertion of a right to present possession. It is equivalent to the old entry.
11. And the same law is laid down in Jones v. Carter  10 Ch. D. 747 and in Serjeant v. Nash, Field & Co.  2 K.B. 304. But if the bringing of the action is equivalent to the old entry in the English Courts, I can see no valid reason why it should not be equivalent to and constitute, the
act showing the lessor's intention which is required by the Indian statute. And that act being done and completed when the plaint is presented, it seems to me to follow that at that point of time the lessor's cause of action is complete.
12. Although we are disposed to accept the law as laid down in the judgment from which I have just quoted, and although speaking for myself I am unable to find myself in agreement with the decision in Nourang's case  45 Cal. 469 having regard to the view we take of the facts of the present case, it will not be necessary for us to take steps to have the matter further considered by another tribunal. Moreover the point I have just discussed will were long cease to have any practical importance because the wording of Section 111, T. P. Act, has been altered in the amending Act of 1929 which came into operation on 1st April 1930. The last portion of Clause (g), Section 111, now reads as follows:
And in any of these cases' (that is to say the cases mentioned in that sub-clause) the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
13. The alteration was no doubt made in order to remove the ambiguity of the words in the original sub-clause and to make clear a point which had given rise to a difference of judicial opinion. By reason of the alteration as from 1st April last year in a case where a lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or where a lessee renounces his character as such by setting up a claim in a third person or by claiming title in himself, it will be necessary for the lessor to indicate definitely his intention to take advantage of the forfeiture which has been incurred by giving notice to that effect to the lessee, and it is obvious that under the section as it now stands it will be necessary that such step shall be taken before the right to institute a suit can arise.
14. I have already stated that in our view this case does not fall within the purview of the Transfer of Property Act. The appellate Court below was of opinion that a notice given before the institution of the suit was necessary. The learned Munsif on the other hand had come to the conclusion that a definite notice to quit was not necessary to constitute any act on the part of the landlord within the meaning of the last part of Clause (g), Section 111, T. P. Act. The learned Officiating Subordinate Judge however finally determined the matter on a footing which in our view is the correct one. He says at p. 12 of the paper-book under the heading 3rd point:
The plaintiffs' case being that the tenancy came to an end on the refusal of the defendants to serve plaintiff I do not think it necessary to serve any notice on defendants before the suit. I agree with the learned Munsif who held that the plaintiff indicated before the suit his intention to terminate the tenancy. Plaintiffs' suit cannot be defeated on this ground.
15. We do not endorse what the learned Subordinate Judge says with regard to the plaintiff's indicating before the institution of the suit his intention to terminate the tenancy. This part of his judgment is however not really material because the learned Judge does accept the plaintiffs contention that the tenancy had in fact come to an end when the defendants refused services to the plaintiff or withheld performance of those services on or about 8th October 1913. It is clear on the authorities that the refusal by a tenant to perform services which are incidental to his holding, is sufficient of itself to ground a suit for ejectment. I refer in this connexion to the case of Hurrogobind Raha v. Ramrutno Dey  4 Cal. 67.
16. There seems to be a distinction between a case where there is a right to service of a public character such as Chawkidari Chakran and one where the service is to a private person as the grantor in the present case. In the former case the zamindar himself is not or may not always be entitled to resume possession, whereas in the latter case he can do so either when the service is not required or when the grantee has refused to perform the service. I need not refer in detail to any of the authorities which indicate that there is this distinction. It is sufficient for our purpose in determining this case to refer only the case of Ram nath Sil v. Siba Sundari Debya  40 I.C. 348. The head-note of that case says:
Where a service tenure was created before the passing of the Transfer of Property Act, the tenant was not entitled to continue in possession when he failed to perform the services and it was competent to the grantor, on the service thus ceasing to require and take possession of the land without reference to the Court at all.
17. Reference is made to the case of Maharaja Sris Chandra Rae v. Madhub Mochee  S.D.A. 1772. The head-note then continues:
If, on the other hand, the tenancy was created after the passing of the Transfer of Property Act the position of the parties is to be determined with reference to either Clause (b), or Clause (g), Section 111, of that Act. A service tenant holds the land on condition that if lie refuses to render service, the lease shall determine and thereupon the landlord shall be entitled to re-enter. If the tenant renounces his character as service tenant, by claiming to hold the land at money or produce rent, and denies the title of the landlord to resume the lands to him determines and no notice is necessary to eject him.
18. I have already dealt with the situation which might have arisen if the circumstances of this case had been such that the matter fell within the Clause (g), Section 111, T. P. Act. In our opinion it does (not even fall within Clause (b) of that section or indeed within the purview of the Act of 1882 at all for the reasons which I have already stated. The matter falls to be decided upon the footing that the service tenure with which we are concerned was created before the passing of the Act of 1882 and it seems quite clear on the authority of the case of Ramnath Sil v. Siba Sundari Debya  40 I.C. 348 thatthe tenancy (whatever the precise terms may be) ipso facto came to an end at the time when the service failed to be rendered. No question of the lessor having to assert a right of forfeiture or any matter of that kind arises at all. The tenancy automatically came to an end when the tenant made default in rendering the services stipulated for and the grantor thereupon became entitled to re-enter. For the reasons I gave in the early part of this judgment we are of opinion that he did not lose that right merely by allowing a long period of time to elapse before he took steps to enforce that right by legal process. That seems also to have been the view by the appellate Court be-low. We think that the decision of that Court should be upheld and this appeal must be dismissed with costs.
19. I agree.