1. This is an appeal against a decision of the second Subordinate Judge, Alipur, dated 28th September 1943 reversing a decision of the Third Munsif, Alipur, dated 8th April 1943 in T. S. No. 102 of 1942 decreeing the suit filed by the 'plaintiff, the Corporation of Calcutta, against the defendants.
2. The facts out of which this appeal arises are as follows : On 6th October 1931, the Corporation of Calcutta (hereinafter referred to as 'the Corporation') leased out a piece of land measuring 10 cottabs 5 chittacks and 14 sq. ft. being portion of premises No. 58/1, Kansaripara Road and Nos. 9 and 10 Kundu Road in favour of one Dulal Chandra Nandan, Secretary of the Bhowanipur Youngmen's Association. An indenture dated 6th October 1931 was executed by the parties. The indenture recites that on 27th March 1923, the Corporation for the monthly rent of Rs. 6 agreed to permit the said Association to occupy and use the premises No. 58/1, Kansaripara Road as play-ground and that the lessee as Secretary applied to the Corporation for lease of a further plot of land being portion of pre. raises Nos. 9 and 10 Kundu Road. The indenture further recites that the Corporation on 26th March 1930 resolved to lease the remaining portion of premises Nos. 9 and 10 Kundu Road and 58/1, Kansaripara Road to the lessee at an annual rent of Rs. 10 for playing outdoor games subject to the conditions that (a) no structure was erected, (b) the lessee would vacate the premises whenever called upon to do so by the Corporation.
3. The terms of the lease so far as they are material for this appeal may be set out as follows : Clause 1--The lessee hereby agrees to occupy the piece or parcel of land described in the schedule to the lease as a monthly tenant, it being hereby agreed that such occupation may be determined at any time by the Corporation by one month's written notice being given to the lessee. Clause 3--The lessee shall not be at liberty to erect any structure on the land without the previous permission of the Chief Executive Officer of the Corporation had and obtained in that behalf. Clause 5--The lessee shall, when-ever the said premises be required by the Corporation, on a month's notice deliver peaceful possession of the same to the District Engineer or any other Officer of the Corporation appoint-ed in that behalf provided always and it is hereby agreed that if there be any breach of any of the covenants herein contained it shall be competent for the Chief Executive Officer to cancel and determine the agreement and to take over peaceful possession of the said premises as if these presents had not been done.
4. Out of the area which is the subject-matter of the said indenture a portion of land measuring 3 cottahs 7 chittaks and 8 sq. ft. was disposed of by the Corporation and possession of the same was made over by the defendants on 19th July 1940.
5. On 22nd October 1910, a notice was served upon the defendants by the Corporation by registered post requiring the defendants to vacate and give up possession of the portion of the land then in the possession of the defendants on the expiry of 30th November 1940.
6. As the defendants inspite of demands did not vacate the laud a suit was instituted in the Third Court of the Munsif at Alipur being T. S. No. 114 of 1941 for ejectment and for other reliefs.
7. On 17th November 1941, the said suit was withdrawn with liberty to bring a fresh suit.
8. On 27th November 1941 a notice was sent by registered post on bahalf of the Corporation requiring the defendants to vacate the premises on or before 31st December 1941 as the Corporation urgently required the land in the occupation of the defendants for the purpose of extending the roadway and as the defendants had for feited their interest in the land by the construction of structures thereon in direct contravention of the terms of the said indenture. The notice was returned with the endorsement 'left.' Thereafter, on 35th December 1941 the said notice was again sent by registered post. The registered cover came back with the endorsement by the peon 'Refused.' The said two covers have been marked as Exs. 2 and 2 (a).
9. On 24th April 1942, this suit was filed for recovery of possession of the portion of the land then in the possession of the defendants and for damages commencing from the date of filing of the suit.
10. The defendants were sued under Order 1, Rule 8, Civil P. C., as representing all members of the Bhowanipur Youngmen's Association. The suit was contested by defendants 1, 3 and 4 who filed a joint written statement. In the written statement, they denied the service of the notice of ejectment as alleged in the plaint and the validity of the notice and of the service thereof. The defendants also alleged that the covenants in the lease had not been broken by them inasmuch as they did not erect the structure existing on the land the same having been erected prior to the date of the said indenture.
11. The learned Munsif held on the evidence that the structure had been raised after the date of the said indenture and without the permission of the Corporation and that the defendants had incurred forfeiture under Section 111(g), T. P. Act. The learned Munsif however held that the forfeiture had been waived by the Corporation by acceptance of and of demanding payment of rent which became due since the forfeiture. The learned Munsif further held that the breach complained of namely, the erection of the structure, was not of a continuing nature and the continuance of the structure after the waiver of the forfeiture was not a fresh breach giving the plaintiff a fresh cause for a fresh forfeiture. The learned Munsif also held on the evidence that the notice to quit had been duly served upon the defendants but inasmuch as no notice had been served under Section 114A, T. P. Act, the suit for ejectment was not maintainable, In the view he held that the tenancy of the defendants had not been validly determined. He therefore dismissed the suit.
12. Against the decision of the Munsif there was an appeal which was heard by the Second Subordinate Judge at Alipur. The Appellate Court agreed with the Munsif that the forfeiture incurred by the erection of the structure had been waived but held that as the breach of the covenant not to erect structure was a continuing one, the service of the notice dated 27th November 1941 determined the tenancy by forfeiture. He also held that it was not necessary to serve a separate notice under Section 114A, T. P. Act, and that a combined notice under Sections 111(g) and 114A was enough and that such notice had been served. The combined notice had not been waived and therefore the plaintiff was entitled to recovery of possession of the land and damages from 1st January 1942 to the date of delivery of possession at the rate of Rs. 10 per annum.
13. This appeal has been filed by defendant 1 and is directed against the said appellate decision.
14. Before me it has been argued by the learned advocate for the appellant that the breach of covenant not to erect a structure was not a continuing breach. The breach was a single breach and was complete on the date of the erection of the structure. That breach having been waived by acceptance of rent after the forfeiture was complete, the plaintiff was not entitled to eject the defendants in reliance on that forfeiture. There had been no other breach after the date of the notice dated 22nd October 1940 which entitled the Corporation to determine the tenancy by forfeiture. The Corporation was not entitled therefore to eject the defendants by a fresh notice based on forfeiture.
15. It has been held that where there is an express covenant to build within a fixed period and the tenant does not do so, there is a single breach which may be waived by subsequent acceptance of rent. See Hillon Landlord and Tenant p. 187, Article 142. Reliance was placed by the learned advocate for the respondent Corporation on the case of Doe de Ambler v. Woodbridge, reported in (1829) 9 B and C 376 : (33 R. R. 203). In that case the covenant was not to after or use certain rooms then used as bed-room into, or for any other purposes than, bed or sitting rooms without the license of the lessor in writing and the lease contained a clause of forfeiture for breach of any of the covenants. It was hold per curium that the conversion of a house into a shop is a breach complete at once and the forfeiture thereby incurred is waived by subsequent acceptance of rent. There was however a new breach of covenant every day during the time the rooms were used contrary to the covenant, of which the landlord could take advantage. That case is an authority for the proposition that if the breach of the covenant is a continuing breach, the lesser can avail himself of a new breach after a previous one had been waived but if the breach was complete at once, it was waived by subsequent acceptance of rent and could not be availed of thereafter.
16. In Powell v. Hemsley, (1909) 1 Ch. 680, the lessees built a house in contravention of the covenants contained in the lease. The question arose whether the breach was a continuing one. Eve J. said as follows at p. 688;
'It has been argued on the part of the plaintiff that the breach is a continuing breach that there is a new breach of covenant every day the house is left standing. I cannot adopt this view. In my opinion the covenant was broken once and for ail when the house was erected contrary to it was a breach complete at once and not continuous: See per curiam in Doe de Ambler v. Wood-bridge: (1829-9 B. and C. 376: 33 R. R. 203) The defendant therefore cannot be liable on the footing of a continuing breach.'
17. This case went up on appeal and the judgment on appeal is reported in Powell v. Hemsley, (1909) 2 ch. 252: (78 L. J. ch. 741), Lord Justice Farwell says as follows:
'It was said that this is a continuing breach. I agree with Eve J. that the case of Doe de Ambler v. Woodbridge ; (1829-9 B. and G. 376 : 33 R. R. 203) illustrates the distinction very well. The covenant there was that the tenant should not alter or convert certain rooms into bed rooms. The Court held the conversion was a breach complete at once. I entirely agree with Eve J. and I think that this appeal should be dismissed with costs,'
I therefore hold that the breach of covenant not to erect any structure on the land was not a continuing but a single breach. The breach and the forfeiture incurred therefor having been waived, the Corporation was not entitled to rely on the breach by reason of the erection of the structure for determining the tenancy.
18. The other ground on which the notice to quit was based was that the land was required by the Corporation for its own purposes. Clause 5 of the lease provided that if at any time the Corporation required the land, the lessee would deliver peaceful possession of the same on a month's notice. (After discussing the evidence His Lordship proceeded:) Further, Clause 1 of the lease entitled the Corporation to recover possession of the land by determination of the tenancy at any time by one month's written notice being given. It is contended that even if there was no forfeiture, the Corporation was entitled to recover possession by giving one month's notice. Such a notice was given on 27th November 1941 and the tenancy determined on the expiry of the period of the notice.
19. The learned advocate for the appellant contends that the suit has proceeded on the basis, of forfeiture and the judgments of the lower Courts have also proceeded on that footing. No issue was raised as to whether the plaintiff was entitled to possession on any ground other than that of forfeiture.
20. In the plaint recovery of possession is asked for on the footing of the notice to quit dated 27th November 1941, The notice dated 27th November 1941 expressly mentioned that the Corporation urgently required the land for extending the roadway. Clause 6 of the lease required the lessee to give up possession on a month's notice whenever the premises were required by the Corporation. Clause 1 of the lease entitled the Corporation to determine the tenancy on a month's written notice. It is therefore contended that the Corporation was entitled to a decree for possession if one month's notice was given.
21. One of the issues framed at the trial was 'Was any notice of ejectment served on the defendant Association? If so, is it valued and sufficient?' The learned Munsif found that notice under Section 111(g), T. P. Act had been duly served on the defendants. He did not go into the question as to whether the defendants had got one month's notice, as it was not necessary for his purposes, he having proceeded on the ground of forfeiture only. In the grounds of appeal filed in the lower appellate Court, it was complained that the learned Munsif omitted to consider the other condition mentioned in the notice which was itself a, good ground for ejectment, namelys that the land was required by the Corporation. The lower appellate Court having come to the conclusion that the breach of covenant was a continuing one held that there had been a forfeiture, and did not go into the other question, namely, whether the Corporation was entitled to a decree, on the ground that they had served a notice giving the defendants one month's time to vacate.
22. If the evidence on the record was sufficient to enable me to determine the issue, I would have decided the issue here. But it seems to me the evidence is not sufficient. It is true that there is evidence that the letter dated 27th November 1941 was sent by registered post on the said date. The presumption is that the notice was served at the time when it would be delivered in the ordinary course of post. The presumption is however rebuttable. It is pointed out that the registered cover containing the notice dated 27th November 1941 was returned with the endorsement 'Left' which is dated 2nd December 1941, As the lower Court did not consider the question as to whether one month's notice bad been given, it was not necessary for the defendants to adduce any evidence for rebut-ting the presumption.
23. I think therefore it is necessary that the following issues should be referred for trial to the lower appellate Court, (a) Was the premises now in the occupation of the defendants required by the Corporation? (b) Was the notice dated 27th November 1941 duly served on the defendants? If so, on what date?
24. The lower appellate Court would take additional evidence on the issues referred to above and return the evidence to this Court with its findings thereon.
25. Costs of this hearing, will abide the result.