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Ramnath Sil and anr. Vs. Siba Sundari Debya and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.348
AppellantRamnath Sil and anr.
RespondentSiba Sundari Debya and anr.
Cases ReferredDeo Nandan Pershad v. Meghu Mahton
Excerpt:
landlord and tenant - service tenure--tenant refusing to perform service, consequences of--transfer of property act (iv of 1882), section 111, (b), (g)--forfeiture of service tenure created before or after the passing of the act. - .....5 c.l.j. 181 :11 c.w.n. 225 : 34 c. 57. it is consequently plain that whether the tenancy was created before or after the transfer of property act came into force, the defendants are liable to be ejected without service of notice to quit.3. the decree of the subordinate judge is accordingly confirmed and this appeal dismissed with costs.
Judgment:

1. This is an appeal by the defendants in an action in ejectment. The defendants, who are barbers by caste and profession, held the disputed land under the plaintiffs on condition that they would serve them as barbers and enjoy the land in consideration of their service. The plaintiffs seek to eject the defendants on the allegation that they have forfeited the tenancy, as since 1901 they have refused to perform the requisite service. The defendants urged that the tenancy is held at a money rent, that there has been no forfeiture and that they are entitled to a reasonable notice to quit, before they can be evicted. The Courts below have found on the merits in favour of the plaintiffs and have decreed the suit. In our opinion, that decree is manifestly right and cannot be successfully assailed.

2. As the origion of the tenancy is unknown, two alternative hypotheses have been placed before us. If the tenancy be assumed to have been created before the Tansfer of Property Act came into operation, the position of the defendants must be determined with reference to the law as it stood at that time. Now, it was ruled by a Full Bench of the Sudder Court in the case of Sreesh Chunder v. Madhub Mochee, (1857) S.D.A. 1772 that where the defendant held land for the performance of certain services, he was not entitled to continue in possession when he failed to perfrom the services and that it was competent to the grantor, on the service thus ceasing, to resume and take possession of the land without reference to the' Court at all. This view was confirmed subsequently in the cases of Hurrogobind Raha v. Ramrutno Dey 4 C. 67 : 2 Ind. Dec. (N.S.) 44; Makbul Hossain v. Ameer Sheikh 25 C. 131 : 13 Ind. Dec. (N.S.) 89 and Ansar Ali Jemadar v. G.E. Grey 2 C.L.J. 403. Consequently if the law as it stood before the Transfer of Property Act is applied to the case before us, the defendants are liable to be ejected without notice, as they have refused to perform the requisite service. If, on the other hand, the tenancy is assumed to have been created after the Transfer of Property Act came into operation the position of the parties must be determined with reference to the terms of Section 111 : Under Clause (b) of that section, a lease of immoveable property determines, where such time (that is, the ' time limited thereby) is limited conditionally on the happening of some event, by the happening of such event. Under Clause (g) a lease of immoveable property determines by forfeiture 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, if the lessor does some act showing his intention to determine the lease. In our opinion the case falls either within Clause (b) or Clause (g). A service tenant holds the land on condition that if he refuses to render service the lease shall determine, and thereupon the landlord shall be entitled to re-enter. There can thus be no doubt that if a service tenant renounces his character as service tenant, by claiming to hold the lands at money or produce rent, and denies the title of the landlord to resume the lands, the lease to him determines and no notice is necessary to eject him. It is also plain that if Clause (g) be held applicable, the lessors did, in the present case, signify, prior to the institution of the suit, their intention to determine the lease. In 1908, they instituted a suit to eject the defendants on the ground that their tenancy had been forfeited by reason of their refusal to render service: that suit was withdrawn, with liberty reserved to institute a fresh suit on the same cause of action. This was sufficient notice of intent to forfeit: Serjeant v. Nash Field & Co. (1903) 2 K.B. 304 : 72 L.J.K.B. 630 : 89 L.T 112 :19 T.L.R. 510; Grimwood v. Mess (1872) 7 C.P. 360 : 41 L.J.C.P. 239 : 27 L.T. 268 : 20 W.R. 972; Jones v. Carter (1846) 15 M. & W. 718 : 71 R.R. 800 : 10 Jur. 33 : 153 E.R. 1040. As was explained in the case of Anandamoyee v. Lakhi Chandra Mitra 33 C. 339 : 3 C.L.J. 274, Clause (g) of Section 111 does not render it obligatory upon the lessor to serve a notice to quit upon the lessee who has forfeited his tenancy ; even a demand for possession is sufficient : Deo Nandan Pershad v. Meghu Mahton 5 C.L.J. 181 :11 C.W.N. 225 : 34 C. 57. It is consequently plain that whether the tenancy was created before or after the Transfer of Property Act came into force, the defendants are liable to be ejected without service of notice to quit.

3. The decree of the Subordinate Judge is accordingly confirmed and this appeal dismissed with costs.


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