S.N. Guha Ray, J.
1. This is an appeal by the plaintiff from the appellate decree in her suit for recovery of a specified sum on a declaration that the defendant had fraudulently withdrawn that, amount and also for an injunction restraining the defendant from receiving payment of the said amount from his lawyer with whom it was lying. The facts are undisputed and may be briefly stated. The defendant took from the plaintiff an agricultural lease of three plots of land measuring about 10 bighas for a period of 5 years from Baisakh 1346 B. S. to Chaitra 1350 B. S. at an annual rent of Rs. 42/- only. During the currency of this lease, the three plots of land were requisitioned by the Government on behalf of the military authorities and they were taken possession of by the military authorities. The plots are still in the occupation of the military authorities even though the term of the lease has already expired. The compensation however, that was paid after the expiry of the period of the lease amounting to Rs. 443/- was withdrawn by the defendant's lawyer.
2. It is the plaintiff's case that the tenancy having expired this money was payable not to the defendant but to the plaintiff. She accordingly asked for a declaration that she was entitled to this amount withdrawn by the defendant's lawyer and that there should be a permanent injunction to restrain the defendant from withdrawing any further amount to be awarded as compensation and also from receiving payment of the said sum of Rs. 443/- from the defendant's lawyer.
3. The defence was that although the term of the lease had expired the tenancy was not at an end and it still subsisted so that the plaintiff was not entitled to the compensation money awarded for the land in question.
4. Both the courts dismissed the suit on the finding that as the tenancy of the defendant still subsisted although the term of the lease had expired the plaintiff was not entitled to the compensation already awarded.
5. On behalf of the appellant only two points have been raised before me. The first is that although a non-occupancy raiyat, such as the defendant undoubtedly was, was under a mere liability to ejectment on the ground that the term of his registered lease had expired and although section 89 of the Bengal Tenancy Act lays down that no tenant shall be ejected from his tenure or holding except in execution of a decree it was not possible in this case to institute a suit for ejectment against the defendant for the simple reason that he was not in possession, so that it must be held that when the defendant became liable to ejectment and when he was, in fact, out of possession his tenancy had terminated.
6. The next point raised is that the contract was frustrated by the fact that the military authorities occupied the land and made it impossible for the defendant to continue in occupation and for the plaintiff herself to get back possession.
7. It is conceded on behalf of the appellant that unlike a terminable lease under the Transfer of Property Act which determines by an efflux of the time limited thereby an agricultural lease does not determine of itself on the expiry of the lease but it has to be terminated by a decree of the court as laid down in section 89 of the Bengal Tenancy Act. The whole contention of the learned Advocate for the appellant is that in this particular case it was not possible for the plaintiff to institute a suit for ejectment against the defendant because he was out of possession and it was not possible for the plaintiff to institute a suit for ejectment against the military authorities for whom the land in question had been lawfully requisitioned.
For the proposition that no suit for ejectment against the tenant defendant was possible because he was out of actual physical possession reliance has been placed on the case of 'RAM PERSHAD KOERI v. JAWAHIR ROY', 7 Cal L J 72, in which it has been held that where the mortgagee of a non-transferable occupancy holding purchased the holding in execution of his mortgage decree and took possession, the possession of the tenant mortgagor completely ceased, and the holding passed into the occupation of the mortgagee, and as against the landlord the mortgagee auction-purchaser was a trespasser, so that the landlord was entitled to sue him and to obtain a decree for ejectment, the tenant who was out of possession not being a necessary party to such a suit. It was further held in this case that when the non-transferable occupancy holding was mortgaged by the tenant and the holding passed into the occupation of the mortgagee in execution of his mortgage decree the abandonment of the holding by the tenant was due directly' to a voluntary act of the tenant and was not properly attributable to the act of a stranger, for the mortgage was a voluntary act on the part of the tenant, his omission to pay the mortgage debt and his failure to satisfy the mortgage decree, when it was obtained, were equally voluntary.
The facts of that case are easily distinguishable from the facts of this case. There, the occupation of the holding passed from the tenant to his mortgagee, as a result of certain voluntary acts of the tenant with the result that it has to be held that there was a voluntary abandonment of the holding by the tenant. In this case there has been no abandonment whatever. What happened was that when the tenant was in occupation of the land in question it was requisitioned on behalf of the military authorities. The question arises what the precise effect of this requisition is. It is obviously distinct from acquisition which means the acquisition of the rights of every one interested in the land. The requisition is merely a temporary, occupation of the land although this temporary occupation may extend over a number of years. In the process of requisition all that is taken over by the party for whom the requisition is made is the interest of the person in occupation and though section 19 B of the Defence of India Act introduced by Ordinance No. XLV empowers the Government to specify by order the person to whom possession was to be given of a property to be released from requisition and though section 4 of the Central Act XVII of 1947 re-enacted the latter provision when the Defence of India Act lapsed, the corresponding provision namely section 6 of West Bengal Act II of 1948, lays down that possession is to be made over to the person 'entitled to it.' From this it follows that at the time of release what the authorities have to consider is not the question who has the title to the land but the question who is entitled to possession. That clearly shows that this requisition does not put an end to the interest of the person in possession. All that it does is to put the party for whom the land is requisitioned in possession in place of the person from whom it is requisitioned so as to suspend for the time being the possession of the latter. At the end of the period of requisition, the person entitled to possession is to be put in possession and the person from whom possession is taken is obviously the person prima facie entitled to possession. It is thus clear that there is only a temporary change of possession of the tenant, his rights and obligations under the tenancy apart from the actual physical possession of the land remaining intact. That being so, the principles on which the case reported in '7 Cal L J 72' was decided are hardly applicable to the facts of this case, for. in this case, there is clearly no abandonment. It cannot be laid down as a broad proposition of law that no action in ejectment lies against a party who is not in actual physical possession. A tenant who sublets his holding to another is not in actual possession and yet he can be sued in ejectment. Nor can it be laid down that in this particular case an action in ejectment would not be maintainable against the tenant and also the military authorities at least in the form of a declaration of the termination of the tenancy and of the possession of the military authorities being the possession not of the tenant but of the landlord. Even if however, it be assumed that such an action was not maintainable, that does not take away from the fact that without a decree for ejectment, the liability of the tenant to be ejected from the land by itself does not confer on the landlord the right of re-entry. In other words, that liability does not automatically put an end to the tenancy: In 'TARABAI JIVANLAL v. PADAMCHAND, : AIR1950Bom89 it has been held by a Judge sitting singly that the requisitioning of a flat by the Government is essentially of a temporary nature and does not create in the Government any vested interest in the tenancy nor does it divest the tenancy vested in the tenant. In this view, the interest of the tenant still subsists, so that the landlord-appellant is not entitled to the compensation money which was withdrawn on behalf of the tenant by his lawyer. The first contention therefore raised on behalf of the appellant must fail.
8. The second contention is that the contract was frustrated by the fact that the military authorities took over the land. In this case the contract had already been executed and the tenant put in possession of the land in question when the military authorities took it oyer and the question arises whether the doctrine of frustration of the contract can apply to a case of this nature. For the contention that to such a case the doctrine of frustration is applicable, reliance has been placed on the case of 'KHITISH CHANDRA v. SHIBA RANI DEBI', : AIR1950Cal441 decided by a single Judge of this Court. The facts in that case were that A constructed a thatched shed on a plot and let the shed to B as a monthly tenant and during the tenancy the shed was burnt by fire. Thereafter B raised another structure on the land inspite of A's protest. It was held in that case that section 108(e) of the Transfer of Property Act did not in terms, apply as B neither elected to walk out even after total destruction of the shed nor was willing to suspend payment of rent and give up possession but that the doctrine of frustration applied to leases and that the contract between A and B became impossible of performance through no negligence on the part of A and he was entitled to claim that the lease had come to an end by destruction by fire. It was further held in this case that under the tenancy, B had no right to raise structures of his own treating the lease as the lease of the land only.
This case undoubtedly at least by implication, seems to lay down the proposition that the doctrine applies to a contract, substantial parts of which have been already performed and the tenant actually put in possession. If that is so, I think I must respectfully disagree. As laid down by Lord Maugham ' The doctrine of frustration is only a special case of the discharge of contract by impossibility of performance arising after the contract was made and it has an extensive meaning and it is still not possible to say how extensive.' As pointed out in Chitty's Treatise on the Law of Contract, the law on the subject is not free from doubt, but the principles applicable are now somewhat clearer as the result of a number of cases arising out of the First World War and one can only note the classes and varieties of cases to which it has already been judicially applied. No English authority was cited before me to show that the doctrine was applicable to such a case. On the other hand in 'WHITEHALL COURT, LTD. v. ETTLINGER', (1920) 1 K B 680, relied on in the Bombay case already cited it was held that when the military authorities acting under the Defence of the Realm Regulations requisitioned the flats let out to a tenant for three years, the military authorities being still in possession in 1918 when the lease expired, the tenant-defendant had not been evicted by title paramount so as to suspend the tenancy, and further that the tenancy had not been determined by the requisitioning of the flats because the doctrine of the termination of a contract by reason of the frustration of the adventure did not apply to the case of a contract which created an estate by demise and that therefore the landlords were entitled to recover the rent from the tenant. Lord Reading C. J. quoted the following extract from the judgment of Lush J.:
'It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement.'
The other English decision relied on in the Bombay case is 'MATTHEY v. CURLING', (1922) 2 AC 180 in which during the currency of a lease of a house and land, the military authorities, acting under the Defence of the Realm Regulations, took possession of the demised premises and continued in occupation thereof until after the expiry of the term. In this case also, the contention that the taking of possession by the military authorities, amounted either to an eviction by title paramount or operated as what is known as frustration of adventure, was negatived and it was held that the doctrine of frustration could not apply to a case of this nature where there was a lease.
9. Thus the English authorities on which reliance was placed by Coyajee J. in the Bombay case referred to above are decidedly against the view taken in 'KHITISH CHANDRA v. SHIBA RANI DEBI', : AIR1950Cal441 . The Indian law on the subject is embodied in section 56 of the Contract Act which is in the following terms:
'A contract to do an act which after the contract is made becomes impossible or, by reason of some events which the promisor could not prevent, unlawfully becomes void when the act becomes impossible or unlawful.'
In this particular case the tenant, as I have already said, was put in possession and that was all that the landlord undertook to do. His duties therefore under the contract had been fully performed. How then does the contract become impossible of performance? All that had happened after the military authorities took over is that in place of the tenant being in actual physical possession of the land the military authorities are there and that the compensation payable by the military authorities is payable to the tenant and the landlord receives from the tenant the rent which under the contract is payable to him. Thus the obligations of the tenant under the contract are still capable of performance. The only thing which may be said to be incapable of performance is that the landlord could not re-enter on the expiry of the term of the lease but the reason for that is that he did not choose to institute a suit for ejectment and to obtain a decree therein. For, as I have already stated, it cannot be said that such a suit is not maintainable against the tenant when he is not in actual physical possession. To my mind, therefore, if I may say so with respect, the doctrine of frustration, even if it may be applicable to a contract for a lease does not apply to a case of this nature and for this view, I rely on the English decisions referred to in the Bombay case.
10. Both the points therefore raised on behalf of the appellant must fail and the findings of the appellate court are affirmed.
11. The appeal is accordingly dismissed with costs.
12. Leave to appeal under clause (15) of the Letters Patent is refused