1. This appeal is directed against the decision and decree passed by the learned Subordinate Judge, Second Court, Backerganj, on 10th March 1930, reversing those of the Munsif, Sixth Court, Barisal. The plaintiff-appellant Instituted a suit for ejectment of the de-fondants-respondents in this appeal, on the ground that the defendants had, by unauthorized transfers by way of mortgages, simple and usufructuary, broken sin express condition in the kabuliyat creating the tenancy and on such breach, they were under the terms of the contract liable to ejectment. The plaintiff treated the defendants as trespassers for the reason that they had incurred forfeiture, and could not as such be treated as tenants. No notice was served on the tenants before the institution of the suit for ejectment, out of which this appeal has arisen. The trial Court passed a decree for khas possession in favour of the plaintiff. On appeal by the defendants, the decree of the trial Court was reversed, and the plaintiff's suit dismissed. The learned Subordinate Judge, in the Court of Appeal below has held that the suit for ejectment brought by the plaintiff was not maintainable without service of notice under Section 155, Bengal Tenancy Act. The plaintiff has appealed to this Court. The tenancy in question is a raiyati holding, and the plaintiff in. the suit could claim khaa possession on the ground that the defendants had broken a condition in the lease, on breach of which they were under the terms of the contract of tenancy liable to be ejected. The condition of which there has been a broach is to this effect:
We shall not be able to transfer the said kursha right in any way by gift or sale, or to grant any karsha settlement in respect thereof, or to encumber the same in any way. If we do so, your right of khas possession will accrue for in other words, the karsha right will be merged for lost in your khas right).
2. It was not denied by the defendants that the condition against transfer or encumbrance had been broken. The questions in controversy in the case wore, whether the plaintiff's claim for khas possession could be resisted on the ground that the suit was one within the purview of Section 155, Ben. Ten. Act, and was not therefore maintainable without service of notice, as provided by that section : whether the defendants could be treated as trespassers, the lease according to the plaintiff having been forfeited by their act3 of transfer or encumbrance in contravention of the terms of the lease under which they held. The question of waiver on the part of the plaintiff was also raised in connexion with the forfeiture of the tenancy as claimed in the suit. A point which was not raised in the Courts below, but which has been argued before us at length may be considered first. In regard to the transfers or encumbrances which were prohibited by the terms of the lease, it was argued before us that there was no covenant contained in the lease against alienation of a part of the holding, and inasmuch as the transfer by way of usufructuary mortgage relating to which transaction, there was, upon the finding of the Court below, no waiver of forfeiture, by the landlord, was in respect of a two third share of the holding, there was no forfeiture incurred by the defendants. The question thus raised is primarily one of construction of the term of the lease which has been referred to above. Covenants like these have always been construed by Courts in England with the utmost jealousy to prevent the going beyond the express stipulation; and a covenant not to part with the possession of the premises was not held to be broken by the lessee parting with a part of the premises: sea Church v. Brown  15 Ves. 268 per Lord Eldon and Grove v. Portal  1 Ch. 727. There is however a dictum by Willes, J., to the contrary in Varley v. Coppard  7 C.P. 505 which was a case of assignment by one of two lessees (partners in trade) to the other. The plain meaning of the condition in the lease before us, appears to be that forfeiture of the lease was to be incurred by the lessees and the right of re-entry was to accrue to the lessor, in the event of the lessee's transferring or encumbering the entire leasehold. The stipulation, it may be noticed, is in consonance with what is settled by a long series of decisions in this Court, that the transfer of a part of a non-transferable holding does not cause a forfeiture of the tenancy.
3. The usufructuary mortgage was not of the entire holding; and upon the covenant in the lease, as also upon the authorities, no forfeiture was incurred by the transaction, and the plaintiff was not Therefore entitled to re-enter as claimed by her in the suit, if the usufructuary mortgage stood alone, so far as the question of forfeiture by the lessees was concerned. There were however the three simple mortgages created previous to the usufructuary mortgage. The three mortgages taken together covered the entire holding. The trial Court came to the finding that the knowledge of those mortgagor, be far as the plaintiff was concerned had not been established, and that the plaintiff had no knowledge of the mortgages when she brought a suit for rent against the tenants, so that there was no waiver of forfeiture incurred by the tenants, by virtue of the mortgages. The Court of Appeal below has approached the question of waiver, so far as it related to the simple mortgages, from a different standpoint. That Court has held that the plaintiff's ignorance of the mortgages had not been proved; that the plaintiff sued the tenants for rent for periods subsequent to the mortgages, and got decree, and that there was therefore a waiver of forfeiture caused by the simple mortgages. The position well established in law, so far as the question of waiver, and the question of onus of proof in a case like the present, is that laid down in Matthews v. Small-wood  Ch.777 and in Fuller's Theatre and Vaudeville, Limited v. Rofe  A.C. 435. In the latter case Lord Atkinson, in delivering the judgment of the Privy Council, quoted with approval, the view taken by Parker, J., in the former case. According to Parker, J.:
waiver of a right of re-entry can only occur where the lessor, with knowledge of the facts upon which his right to re-enter arises, does some unequivocal act recognizing the continued existence of the lease. It is not enough that he should do that which recognizes or appears to recognize, the continued existence of the lease, unless at the time when the act is done, he has knowledge of the facts under which or from which, his right of entry arose...The [question whether there has been a waiver in such a case is one of law, and the onus is on the lessee to adduce some evidence of the lessor's knowledge, and proof of an act showing recognition of the tenancy, does not throw the onus of [proving want of knowledge on the lessor.
4. In the present case therefore it cannot he held that the case of waiver of the right of re-entry sought to be made out by the defendants, has been established, regard being had to the three simple mortgages by them. The plaintiff had the right of re-entry, and there was no waiver of forfeiture of the tenancy. The question arising for consideration next, is whether the defendants were to be treated as trespassers immediately on breach of the terms of the kabuliyat and the point ancillary thereto, whether any notice under Section 155, Ben. Ten. Act, was necessary before the suit for ejectment could be held to be maintainable. The decided-cases so far as this Court is concerned, show some apparent diversity of opinion on these questions, In Gohur Shaikh v. Shaikh Ahmad Ali : AIR1928Cal113 the learned Judges in that case, purporting to accept the reasonings in the judgment of Sanderson, C. J. and Mookerjee, J., in the case of Dwarka Nath Roy v. Mathura Nath Roy (7), held that in a case
where the landlord indicated his desire to take advantage of the forfeiture, the tenant who had incurred the forfeiture and was a trespasser, was not entitled to notice under Section 155, Ben. Ten. Act.
5. It would appear however that in Dwarka Nath Choudhury's case  34 I. C. 833 Sanderson, C. J., proceeded on the basis that defendant 1 (the transferee) was a trespasser who could not claim a notice under Section 155, Ben. Ten. Act. The judgment of Mookerjee, J., bearing upon the applicability or otherwise of Section 155, Ben. Ten. Act, was to this effect, that defendant 1 in the suit (the transferee), could not take advantage of that section, as he was not a tenant, but a trespasser. The original tenants were quite content with the decree for ejectment and did not claim to be relieved against forfeiture; if they were in occupation, they did not claim to do so as tenants under the plaintiff; they had repudiated the tenancy. It was therefore held that the defendants were liable to be ejected as trespassers without any notice as provided by Section 155, Ben. Ten. Act. The reasoning in the judgment in Dwarka Nath Roy Choudhury's case  34 I. C. 833 based upon the facts of that case could have therefore no application to Gohur Shaikh's case : AIR1928Cal113 . The learned Judges deciding Gohur Shaikh's case : AIR1928Cal113 have not laid down any rule of law different from that in the decision in the case of Dwarka Nath Roy v. Mathura Nath Roy : AIR1928Cal113 where according to the view taken by the learned Judges (Sanderson, C. J. and Mookerjee, J.), there was no necessity for a notice under Section 155, Ben. Ten. Act.
6. It appears to us that the principle upon which the decision of this Court in Dwarka Nath Roy Choudhury's case  34 I. C. 833 is based supports the respondents' case before us, and we are unable to give effect to the decision of B. B. Ghose, J., in Gohur Shaikh's case : AIR1928Cal113 which supports the case for the appellants before us, inasmuch as it was based upon some sort of misapprehension, and also for the reason that the facts of the present case are not similar to the facts of that case. The applicability of Section 155, Ben. Ten. Act, upon the facts similar to those in the case before us, has been considered by this Court in Atahar-ud-din Talukdar v. Murari Mohan Dutt : AIR1928Cal193 and we have no hesitation in accepting the view taken by the learned Judges in that case, that Section 155, applies to every case where the lessor [claims ejectment even though on the assertion that the lessee had forfeited his lease on account of breach of a covenant in the lease. The defendants in the case [before us did not cease to be tenants within the meaning of any of the provisions contained in the Bengal Tenancy Act, immediately on the breach of the terms of their kabuliyat, and the suit for ejectment was not therefore maintainable without service of notice. In the result, the appeal fails, and it is dismissed with costs.
7. Miscellaneous Appeal No. 284 of 1930.
8. This appeal has not been pressed, and it is dismissed. We make no order as to costs in this appeal.
M.C. Ghose, J.
9. I agree.