Mahapatra, J.:— The appeal is by the defendant in an action for his ejectment from premises bearing municipal holding Nos. 30/34 and of ward No. 8 circle No. 6 of mahalla Sabzibagh, Patna. The plaintiff also claimed recovery of Rs. 12,000/- as arrears of rent from the defendant. His case was that the defendant had taken tease of the premises for starting a hotel for a period of five years from the 1st of December 1953 to the 30th of November 1958 by a registered document dated the 2nd of December 1953 on an annual rent of Rs. 2400/- payable in quarterly instalments of Rs. 600/- each, on every 26th February, 31st May, 31st August and 30th November, on explicit condition that in case of default of any two consecutive instalments, the plaintiff would he entitled to re-enter upon the premises. Another condition in the lease was that the premises would be used only for a hotel. The defendant violated both the conditions by keeping in arrears the rent that was payable on the 31st May and 31st August 1936 and by opening a book-stall and a betel shop in the premises in addition to the hotel. The plaintiff claimed interest on the arrears of rent at the rate of one per cent per month.
2. The defendant contested the suit and pleaded that the suit was not maintainable and there was no cause of action. His main plea was that the plaintiff was not the owner of the suit premises, the defendant took a permanent settlement of that land by two registered permanent leases on the 12th August 1946 and 1st April 1948 from Tripurari Charan Palit, Advocate, Patna, to whom the land belonged. The two leases were, however, taken in the name of the plaintiff, as the defendant apprehended that if he acquired the property in his name, his five brothers might claim a share in that property. The plaintiff was in fact his friend in whom the had full confidence. He paid Rupees 24,500/- as salami for that land but to keep up the pretence, he paid that money to the plaintiff and caused the salami to be paid through a cheque by him. After taking the lease, he applied for sanction to the Patna Municipality for construction of the houses on the land and spent Rs. 14,500/- in the latter part of 1953 over the construction. With a view to making his position secure, he took a deed of lease on the 2nd December 1953 from the plaintiff but it was a sham document and never intended to the operative. This step was taken to keep his brothers out of any suspicion about the ownership of this properly. On these grounds, he pleaded that the plaintiff was not the owner and there was no relationship of landlord and tenant between the parties, and, as such, he (defendant) was not liable for cither rent or eviction. Seven issues were framed on the pleadings. The first two were about the maintainability of and cause of action for the suit. The third issue was about plaintiff's title. The fourth was about the two registered deeds D/- the 12th August 1946 and the 1st April 1948 by which the property was acquired; whether they were taken by the defendant in the ‘benami’ name of the plaintiff and if the defendant constructed the houses standing on the suit premises. The fifth issue was, if the deed of lease executed on the 3rd December 1953 was a nominal one, not intended to be operative. There was another issue with reference to section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947.
3. The trial court's findings were against the defendant on all issues. It held that the plaintiff was the owner of the suit premises and constructed the existing building and the defendant had taken lease of the same on rent according to the registered lease of the 2nd December 1953. It also found that the defendant had committed forfeiture of tenancy by non-payment of rent and use of the premises for purposes other than keeping a hotel. No flaw was found cither in the framing or in the cause of action of the suit. About the bar with reference to non-determination of fair rent under section 6 of the Buildings Control Act, the court held that section 6 had been repealed and the suit was not barred by that. In that view, the plaintiff was given a decree for evicting the defendant and realising the arrear rent from him. The defendant went in appeal without success and has conic to this Court in second appeal.
4. Learned counsel did not attempt to challenge any of the findings as all of them were on questions of fact, and, therefore, conclusive. The only point contended by him was that there was no cause of action for the plaintiff to bring the suit as he had not determined the lease by giving a notice in writing as is provided under section 111 clause (g) of the Transfer of Properly Act. According to the plaint allegations, the plaintiff wanted to exercise his right of re-entry as the defendant had forfeited his lease. One integral part of forfeiture which would determine the lease is a notice in writing, the other part being breach of a condition involving the right of re-entry by the lessor. In this case, the default in payment of rent for two consecutive instalments happened on the 31st August 1956 and the suit was instituted on the following day. There would be no time left for giving a notice. In that view, learned counsel contended that there was no determination of the tenancy and, therefore, no cause of action arose for a suit for eviction.
5. He referred to the case of Niranjan Pal v. Chaitanya Lal Ghosh, 1964 BLJR 583 : (AIR 1964 Pat 401) (FB) where it was held that before any action under section 11 of the Bihar Buildings Control Act, 1947, for eviction of a tenant could be taken, there must be determination of the tenancy as provided under the Transfer of Property Act the batch of cases covered by that decision were suits for eviction of tenants on the ground that they had defaulted in payment of rent as provided under section 11 of the Bihar Buildings Control Act. The present suit, though for eviction of the defendant, was on the ground of forfeiture of the lease and not merely for default in payment of rent. The plaintiff stated the relevant conditions of the lease, breach of which involved forfeiture of the tenancy. Reading the plaint as a whole, it has to be taken as a suit for realisation of arrear rent and for eviction of the tenant on the ground of forfeiture. On forfeiture, the right to possession accrued to the plaintiff. But that did not give him the right to recover possession from the defendant. There is a difference between those two rights. In some cases they may accrue at one and the same time but in other cases at different times. On account of section 11 of the Bihar Buildings Control Act, the right to recover possession could accrue to the plaintiff only when a decree for eviction is passed against the defendant. The cause of action for the suit was the accrual of the right to possess the suit premises on forfeiture.
6. On the undisputed findings, the defendant was tenant under the plaintiff by the registered instrument of lease dated the 2nd December, 1953, and he violated two conditions of that lease for which the lessor is entitled to evict him. The plea of non-maintainability of and absence of cause of action for the suit raised in the written statement did not relate to absence of notice by the plaintiff under section 111(g) of the Transfer of Property Act Neither he the first appellate court that was contended nor in the memorandum of appeal in this Court that was stated. The second appeal was filed in August 1959. On the 27th July 1964 two additional grounds of appeal were filed in which this plea has been raised for the ???
7. Rule 1 of Order 7 of the CPC, gives the particulars to be contained in a plaint and the particular; under clause (e) are the facts constituting the cause of action and when it arose. Under Rule 11, it is provided that the plaint shall be rejected when it does not disclose the cause of action. That stage may be before the summonses are issued to the defendant or even later, before judgment is passed. In this case, the Court did not take any action under Rule 11. Order 8 deals with the written statement of the defendant and Rule 2 prescribes that the defendant must raise by his pleading all matters which show the suit not to be maintainable. The matters referred in the written statement to show that the suit was not maintainable did not include the absence of notice. The main defence was a challenge to plaintiff's title and setting up the defendant's own. When he disputed the tenancy there could be no occasion to refer to lack of determination of the tenancy.
8. It is true, inconsistent pleas on different grounds (of defence can be pleaded. Rule 7 of Order 8 of the CPC, allows that. As early as in 1878 the case of Berdan v. Greenwood, (1878) 3 Ex. D. 251 recognised such privilege in defence. The power has been given to the Court Under the Code of Civil Procedure, Rule 16 of Order 6 to strike out any matter in a pleading that may tend to embarrases a fair trial of the suit. There is a certain amount of peril for the party who takes absolutely inconsistent pleas grounded on different and contradictory facts, and while leading evidence in support of them he will have to blow hot and cold in the same breath which is bound to shake confidence in the truth of his allegations. For such reasons, inconsistent defences that will depend upon contradictory facts are not generally permitted. If a defendant challenges a plaintiff's title to the suit premises, he cannot at the same time plead that his tenancy has not been terminated according to law. A Bench decision of this Court in the case of Ram Palak v. Bilas*, AIR 1952 Pat 69 held such two pleas as based on facts which were wholly incompatible with one another, and, therefore, it was not open to the defendant to assert in one breath that he was not a tenant of the plaintiff and in another to assert that he was a tenant and that his tenancy has not been properly determined. In that case, the suit was for ejectment of the defendant who challenged the plaintiff's title and also pleaded that the notice to quit served on him was not valid. After making an observation to which I have just referred, their Lordships examined the notice in that case and held that it was valid. Learned counsel for the appellant contended that the observation against the availability of two inconsistent pleas in defence was merely obiter as the decision was based on confirmation of the lower court's findings against the defendant on both the pleas of title and notice. The examination, of the notice in that case was apparently an additional course adopted by the Court and that would not belittle the stated principle of non-availability of the plea of absence of notice to a defendant who sets up his own title as against the plaintiffs in an action for ejectment.
9. In the case of Krishna Prasad Sing v. Adyanath Ghatak*, AIR 1944 Pat 77 Meredith, J. with whom Sinha, J., concurred, gravely doubted if a defendant in a suit for ejectment having failed to succeed on his plea of title could raise the plea of absence of notice for the first time in appeal. He referred to the case of Hanmantram Surajmal v. Shankarlal Abaji, 95 Ind Cas 573 (Bom) & approvingly stated that it had been laid down that in a suit for possession and rent against the defendant as a tenant, the latter cannot for the first time in appeal be allowed to raise objection to sufficiency of notice to quit after having failed in the first Court on his plea of title. The learned Judge also observed that Order 6 Rule 6 must be read along with Order 8 Rule 2. It was for the defendant to raise by his pleading all matters to show that the suit was not maintainable. The plaintiff could not, in the first instance, anticipate any contest on the question of notice, and, therefore, it was not for him to plead the condition precedent in the first instance. It was for the defendant to raise the point if he wished to contest it and this he did not do. In this connection the learned Judge referred to the cases of Gates v. Jacobs, (1920) 1 Ch. 567 and Murli Manohar v. Raja Nand Singh, AIR 1924 Pat 206. Referring to Order 6 Ride 11, the learned Judge observed that was not a rule laying down that notice must be pleaded. That merely prescribed the form which the pleading should take in such cases as it was material to allege notice. It governed the statement in the pleadings of anything which was a part of the cause of action, as notice might sometimes be. But he observed:
“Strictly speaking, however, a condition precedent merely as such does not form part of the cause of action.”
10. section 111(g) of the Transfer of Property Act as it was before 1929 was referred in that case, because the suit related to that period. Under that provision the lessor was required to do some act knowing his intention to determine the lease. A passage from the plaint was quoted to show some such act of the plaintiff. This was done with the obvious purpose of demonstrating that though the plea of notice of (or act showing) the lessor's intention of determining the lease was not available to the appellant (in a First Appeal), yet assuming that such plea could be raised, it had no substance on the facts of that case. Such a course is adopted by the Court to give greater justification and strength to the result of the case. By the amendment in 1929 a “notice in writing to the lessee of” was substituted for “some act showing” the intention to determine the lease, Meredith, J. held that such a notice (or act) was a condition precedent and not a cause of action for the suit. I am not oblivious to what has been stated in 1964 BLJR 583 : (AIR 1964 Pat 401) (FB) about a notice envisaged under section 106 of the Transfer of Property Act being a cause of action for a suit for eviction of a monthly tenant. Termination of such lease is only by a notice and therefore it is a cause of action. S. 106 says that a lease from month to month is “terminable” by fifteen days' notice, that is, it will continue indefinitely if no ‘notice’ is given by either party. For a suit of eviction a notice alone will give a plaintiff a cause of action.
11. Section 111 speaks of automatic determination of least: of immoveable property if any of the eight things stated thereunder happens. One of them is “forfeiture”. What amounts to “forfeiture” has been explained in clause (g); breach of condition entailing re-entry and a written notice the conditions precedent for forfeiture. If the suit for possession is based upon forfeiture, as both the parties as well as the courts below understood the present case to be, there was no necessity for the plaintiff to state categorically about the performance of the conditions precedent for the forfeiture. As provided under Order 6, Rule 6 of the CPC, an averment of a performance or occurrence of all conditions precedent necessary for the case of the plaintiff shall be implied in his pleading. If the defendant intended to contest any of those conditions precedent, namely, service of notice, it was incumbent upon him to distinctly specify the same in his written statement. The plaint disclosed that there had occurred a forfeiture and that was sufficient to give rise to a cause of action for the suit.
12. Learned counsel for the appellant also contended that as a matter of fact the Court ought to assume in this case that there was no such notice given by the plaintiff to the defendant. He pointed out that the day following the default in payment of the second quarterly instalment of rent (31st August 1956) the present suit was instituted, and there was little time available for service of such notice after breach of condition of payment. There was another condition which was alleged and has now been found to have been broken by the defendant-tenant, and that also according to the terms of the lease, entailed re-entry on the premises by the lessor. That was about the sub-letting of a portion of the premises for a book-stall and a betel shop. That amounted to a forfeiture also and took place long before the lodging of the suit. Whether the plaintiff gave a notice in writing of his intention to determine the lease on that account could have been enquired if the defendant had raised that question in his written statement or during trial. A belated attempt to scuttle the suit by such a plea in second appeal is bound to embarrass a fair trial of issues between the parties and to prejudice the plaintiff seriously.
13. In the Full Bench case of this Court 1964 BLJR 583 : (AIR 1964 Pat 401) (FB) it has been held that a plea about the absence of notice under section 106 of the Transfer of Property Act terminating a month to month lease can be raised in appeal. In the batch of cases disposed of by that decision, the tenant did not challenge the title of the lessor and in that view it was open to him to contest the determination of the lease in absence of a notice for that purpose. As the service of such notice was the cause of action for that suit and as the plea in regard thereto was available to the defendant, that appears to have been permitted to be raised at the appellate stage. Besides, the admitted position in those cases was that there was no service of any such notice on the defendants of the three cases. But, if in a case of ejectment where the defendant sets up his own title as against that of the lessor and contests the suit, no defence on the ground of absence of notice for termination or determination of the lease is available to him during the trial, he can much less be allowed to raise such a plea in a second appeal.
14. Learned counsel referred to the case of Ramniranjan Prasad Tulshyan v. Gajadhar Prasad, AIR 1960 Patna 525. The suits relating to that decision were instituted by the plaintiff for a declaration that he was entitled to realise rent from the respective principal defendants. He alleged that he had taken a registered lease of the land in dispute from the Sasaram Municipality who was defendant No. 2 in those suits and constructed houses thereon to which the principal defendants were inducted as tenants. The suits were dismissed by the lower courts on the ground that the title of the plaintiff had been extinguished by forfeiture of the lease taken from the municipality and, therefore, the plaintiff was not entitled to realise rent from the principal defendants. The lower appellate court had found that the Sasaram Municipality had not served any notice on the plaintiff as contemplated under section 111(g) of the Transfer of Property Act. On that basis a contention was raised before the High Court that there had not been a forfeiture to determine the lease and without such determination, plaintiff's rights as a lessee under the municipality continued and he was entitled to rent from his sub-lessees. That position was accepted by the Court and the plaintiff 5 suits were decreed those facts are distinguished from our present case. Neither the plaintiff in those cases denied the title of his lessor, the municipality, nor there was any lack of materials on record in support of a finding that no notice had been served by the municipality on the plaintiff.
15. 1 may here refer to a decision cited for the plaintiff-respondent. In the case of Lalu Gagal v. Bai Motan Bibi, ILR 17 Bom 631 the plaintiffs suit was for recover of certain fields alleging that he was a permanent tenant of the defendant, having purchased the right of occupancy from the previous occupants of the lands. The trial court found that the plaintiff's vendors were yearly tenants and not permanent tenants. So the plaintiff could not be anything more than a yearly tenant and was entitled to a notice to quit from the defendant before he could be validly ejected from the fields. Learned Judges of the Bombay High Court took a different view and held that as the plaintiff in his plaint and during trial of the suit denied his landlords' title (defendants) as he had claimed to be the full owner, he could not be permitted afterwards to be restored to possession on the ground that he was an yearly tenant entitled to notice to quit which was not given. For all the reasons given above, I am of the view that the defendant-appellant's plea of absence of notice by the plaintiff raised for the first time in this appeal cannot be maintained. No other point was urged in support of the appeal. Accordingly the appeal is dismissed with costs and the judgment and decree of the court below are affirmed.
A.B.N Sinha, J.:— I agree.
LH/AKJ/V.B.B
16. Appeal dismissed.