1. This appeal arises out of a suit brought by the plaintiffs to recover possession of two fisheries on establishment of the plaintiff's right thereto.
2. These fisheries are called Mahal Samil fisheries and are governed by the provisions of the Assam Land and Revenue Regulation, I of 1886. These two fisheries were let out by Government in periodic Mahal Samil Settlement many years ago, and it is found that the plaintiffs held under the condition that the fisheries should not be transferred without the permission of the Deputy Commissioner. It appears that these fisheries were sub-let by the plaintiffs in 1908 to certain persons. The Deputy Commissioner in 1910 called on the plaintiffs to show cause why the lease under which they held, should not be cancelled. On the 23rd January 1911, the Deputy Commissioner cancelled the lease. The plaintiff's case was that they were land holders within the meaning of the Regulation and that they had power to transfer the lease but, as a matter of fact, they did not do so. There were various other matters alleged in the plaint.
3. The Court of first instance dismissed the suit and that decree was affirmed on appeal. The plaintiffs have appealed to this Court.
4. Several questions were raised on behalf of the appellants, but it is unnecessary to go into them because we think that the appeal should succeed on the ground that there was waiver of forfeiture on the part of the lessor.
5. As stated above, the plaintiffs granted sub-leases in the year 1908 and the lease of the plaintiffs was cancelled by the Deputy Commissioner in 1911.
6. When the case was argued before us on the previous occasion, it was pointed out on behalf of the appellants that the rent was accepted by the lessor or realised by the lessor for a period subsequent to the alleged forfeiture of the lease and after the lessor had knowledge of such forfeiture. We, therefore, sent back the case to the lower Appellate Court for a finding upon that point and also as to the circumstances under which the rent was received or realised. The parties were allowed to adduce evidence on the points. The learned District Judge has now returned his findings. He says: 'the evidence shows that rent was realised for this Mahal Samil fishery as well as for other properties by attachment process; the peons who were deputed with the attachment orders have been examined; the cheques have been passed. There seems no doubt that rent was realised by attachment in respect to this Mahal Samil fishery on various dates in 1915' and also that realisation was made in the same way on the 19th December 1910, (i.e., before the cancellation of the lease).
7. Now, Section 112 of the Transfer of Property Act lays down that a forfeiture under Section 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting: Provided that the lessor is aware that the forfeiture has been incurred: Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture such acceptance is not a waiver.
8. It is clear upon the findings that rent was not only accepted but that the rent was realised by actually attaching the moveable properties of the plaintiffs; and this was done for a period subsequent to the plaintiff's granting the sub-lease (by reason of which the forfeiture was incurred) and before the Deputy Commissioner made the order canceling the lease of the plaintiffs as also for the period subsequent to it.
9. It was contended before us by the learned Senior Government Pleader that where rent is accepted after the institution of a suit, such acceptance if not waiver. But, in the first place, no suit had been brought by the lessor to eject the lessee; it is the lessee who has brought a suit for establishment of his title and recovery of possession. In the next place, the rent has been realised from the plaintiffs not only after the institution of the suit but before the institution of the snit, and before the cancellation of the lease, as well as subsequent thereto.
10. The learned District Judge was of opinion that the rents were realised from the plaintiffs by the subordinate officers of the Deputy Commissioner such as the local Tahsildar without the knowledge of the forfeiture. But that is immaterial if the Deputy Commissioner had knowledge of it. The learned Judge says that the Deputy Commissioner had merely information of the granting of the sub-lease, in 1910; and, although he issued notice to show cause why the lease 'should not be cancelled, the petition showing cause was filed before the Extra Assistant Commissioner in December 1910, while the matter was pending before the Deputy Commissioner, and that, therefore, the latter cannot be said to have definite knowledge of the forfeiture before the 23rd January 1911 when he cancelled the lease. But, although the lease was cancelled on the 23rd January 1911, the forfeiture took place mush earlier. The sub-lease was granted in 1908 and it cannot be said that the Deputy Commissioner was not aware of the forfeiture when be issued notice to show cause why the lease should not be cancelled on that ground. Even if the knowledge of the Extra Assistant Commissioner (before whom the petition of the lessee showing cause was presented) be not taken to be the knowledge of the Deputy Commissioner, the latter must be taken to have been aware of the forfeiture when he issued notice upon the lessee to show cause when the lease was actually cancelled on the 23rd January 1911.
11. It appears that rent was realised on the 19th December 1910, i.e., after notice to show cause was issued, and before the lease was cancelled on the 23rd January 1911.
12. The realisations by the subordinate officers were on behalf of the defendant and the defendant had the benefit of those realisations.
13. We think, having regard to the facts found and the provisions of Section 112 of the Transfer of Property Act, that there was waiver of the forfeiture. In this view, it is unnecessary to consider the various other questions of law which have been raised in the case.
14. The decrees of the Courts below are set aside and the plaintiff's suit is decreed. The plaintiff's title to the fisheries under the lease will be declared and they will recover possession thereof. The amount of mesne profits will be ascertained in further proceedings upon the application of the plaintiffs.
15. The plaintiffs are entitled to costs in all Courts.