Ghose and Pargiter, JJ.
1. The subject-matter of the suit, out of which this appeal arises, is a service tenure, which the defendant held under the plaintiff. The defendant renounced the title of his landlord, and executed a kabuilat in 1 respect of the whole of the land comprised in the service tenure in favour of a third party, and thereupon the present suit was brought for ejectment.
2. The case seems clearly to fall within the Transfer of Property Act and not under the Bengal Tenancy Act. Section 155 of the Bengal Tenancy Act for ejectment can only be brought after notice having been given to the tenant; but Section 181 of the same Act exempts from the operation of the Act ghatwali or other service tenures. Section 106 of the Transfer of Property Act declares that 'in the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 15 days' notice expiring with the end of a month of tenancy.' Section 111 of the Act lays down when a lease of immoveable property determines. It determines, among other events, 'by forfeiture' [see Clause (g) ]; that is to say,
(1) in case the lessee breaks an express condition, which provides that on breach thereof, the lessor may re-enter or the lease shall become void; or
(2) in case the lessee renounces his character as such by Betting up a title in a third person or by claiming title in himself; and in either case, the lessor or his transferee does some act showing intention to determine the lease.
3. So that the defendant did incur a forfeiture of his tenancy by denial of the plaintiffs' title as landlord. But looking at Clause (8) of Section 111 of the Act, to which we have just referred, it would appear that, though the landlord is entitled to treat the defendant as a person, who has forfeited his tenancy, yet he must do some act or other showing his intention to determine the lease held by the defendant, and this intention must be shown at some time or other antecedent to the institution of the suit. The lower appellate Court is of opinion, having regard to the provisions of the Bengal Tenancy Act and the Transfer 1 of Property Act, that the plaintiff could not, notwithstanding the denial by the defendant of the title of his landlord, maintain the suit without a notice to quit being served upon the defendant. We are of opinion, for the reasons that have already been given, that the view expressed by the Subordinate Judge is not correct. The defendant, as we take it, forfeited his tenancy by denial of the plaintiff's title as landlord; and when the law distinctly declares that a lease of immoveable property determines by the forfeiture incurred by denial by the lessee of the title of his landlord, a notice to quit is obviously not necessary. The view that we have just expressed is in accord with the principle underlying the case of Ansar Ali Jemadar v. C.E. Grey (1905) 2 C.L.J. 403 and the case of Haidri Begam v. Nathu (1894) I.L.R. 17 All. 45. But as already mentioned, before the plaintiff could be entitled to eject the defendant, it must be shown that the former declared his intention to determine the tenancy of the latter, and that such intention was declared by some act or other before the institution of the suit. There is, however, no finding by the Subordinate Judge upon this matter. We are, therefore, constrained to remand the case for a clear finding. If the Court be of opinion that the plaintiff did, by some act or other, declare his intention to determine the lease of the defendant antecedent to the institution of the suit, he would be entitled to recover judgment; otherwise, the suit should have to be dismissed. Costs will abide the result.