1. The predecessor of defendants Nos. 1 to 6 obtained a permanent tenure from the plaintiff. One of the conditions of the lease was that the defendants should not transfer the tenure and that if they did, the plaintiff should be entitled to re-enter. Eventually, the defendants sold the tenure to defendant No. 7. The plaintiff brought the present suit for ejectment and in accordance with the terms of Section 155 of the Bengal Tenancy Act, he, specified the sum of Rs. 566-4 as reasonable compensation for the breach of the condition.
2. The Munsif found that the breach was not capable of remedy; but he found that a sum of Rs. 250 would be reasonable compensation for the breach of the condition. He allowed the defendants a fortnight's time within which to pay that sum, failing which the plaintiff was to get Khas possession. He also directed that the defendant No. 7 would be recognised as the plaintiff's tenant. The plaintiff appealed. The Subordinate Judge, while agreeing that the breach of contract was not capable of remedy, set aside the decree of the Munsif and directed that the plaintiff should get khas possession of the tenure by ejecting the defendants. He also made an order for re-payment of Rs. 250, which had been deposited in accordance with the Munsif's decree, by defendant No. 7. The sufficiency of the sum awarded as compensation was not questioned.
3. The present appeal is by defendant No. 4 and is based on the ground that, under Section 155, the tenant was entitled to protection on deposit of the amount found to be reasonable compensation. Against this view, it is argued that Section 155 does not apply and that the section is intended to apply only where the breach is capable of remedy or of compensation in money.
4. The terms of Section 155 seem to be clear. That section provides that a suit for the ejectment of a tenant on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served in the prescribed manner a notice on the tenant specifying the particular breach complained of, and where the breach is capable of remedy, requiring the tenant to remedy the same, and in any case to pay reasonable compensation for the breach, and the tenant has failed to comply within a reasonable time with that request. The scope of the section seems to be that in every case, whether the breach is or is not capable of remedy, the notice has to specify reasonable compensation for the breach; and in accordance with Sub-section (2) of the section, a decree passed in favour of a landlord in any such suit shall declare the amount of compensation which would reasonably be payable to the plaintiff for the breach and whether in the opinion of the Court the breach is capable of remedy, and shall fix a period during which it shall be open to the defendant to pay the amount to the plaintiff and where the breach is declared to be capable of remedy, to remedy the same. The result seems to be that if the breach is capable of remedy, it must be remedied, but whether it is capable of remedy or not, a sum is to be specified by the Court which would be reasonable compensation for the breach, and it is only if the tenant fails to deposit that sum within the time given, that the landlord can have his decree for ejectment. This view of the meaning of the section seems to be in accordance with the view taken in the case of Pershad Singh v. Ram Pertab Roy 22 C. 77.
5. But it is argued that where, as here, the contract was made before the passing of the Tenancy Act the section cannot apply to the case of a permanent tenure; otherwise Sections 178 and 179 of the Act would be defeated, Now Section 179 provides that nothing in the Act shall be deemed to prevent a proprietor or holder of a permanent tenure in a permanently settled area from granting a permanent mokarrari lease on any terms agreed in between him and his tenant. That section pre-supposes a contract made after the passing of the Tenancy Act and, therefore, it has no application to the present contention.
6. Then Section 178, so far as it is applicable, provides that nothing in any contract between a landlord and a tenant made before the passing of the Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provision of the Act that makes contracts made before the passing of the Act subject to all the provisions of the Act with reference to the questions of ejectment, and, one of these provisions is contained in Section 155, and, as under that section, the rights of the landlord to eject are subject to the defendant paying what is assessed as reasonable compensation within the time allowed, the effect of Section 178 is that even where there is a provision for re-entry in a contrast made before the passing of the Act, Section 155 applies with full force.
7. Then it is argued that the defendant No. 4 cannot appeal as defendant No. 7, the transferee, has not appealed. But defendant No. 4, it appears, has again taken a settlement from his transferee. He is interested in the question before the Court and there appears no reason why he should not be allowed to appeal. After all, he is the person who is the tenant within the meaning of Section 155.
8. In one respect, the decree of the learned Munsif is open to criticism in that he has declared that the defendant No. 7 is to be recognised as the plaintiff's tenant in respect of the tenure In a suit by the landlord-plaintiff for ejectment of his tenant, a declaration ought not to be given to the transferee that he is to be regarded as the plaintiff's tenant. Subject to this, there appears no objection to the order of the Munsif.
9. Finally, it was argued that Section 155 would not protect the defendant in this case; because the deposit was made not by the tenant but by the transferee. This suit is against the tenant, but the section provides that the Court has to fix the period during which it is open to the defendant to pay to the plaintiff. The transferee has been impleaded by the plaintiff, and he was bound to be if the plaintiff wanted khas possession of the tenure. In terms, the section appears to allow the deposit to be made not only by the original tenant but by any person who is impleaded as a defendant.
10. We think the decree of the Subordinate Judge ought to be set aside and the decree of the Munsif restored, subject to this that the declaration that the defendant No. 7 will be recognised as plaintiff's tenant in respect of the said him howla be omitted. The appeal is, subject to this, allowed, with costs in this Court, as well as in the lower Appellate Court.
11. We are informed that the Rs. 250 deposited by defendant No. 7 has been withdrawn in accordance with the order of the learned Subordinate Judge. If that be so, we allow the defendant No. 4 a fortnight's time from the date of the receipt of the record in the lower Court, within which to make the deposit of Rs. 250 as ordered by the Munsif. If that deposit be not made within the time aforesaid, the appeal will stand dismissed with costs.