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  • Shambhu Prasad Singh
  • B.D Singh, JJ.
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  • Shambhu Prasad Singh
  • B.D Singh, JJ.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Two second appeals (No. 659 and No. 660 of 1963) arising out of two title suits (Title Suit No. 10 of 1957 and Title Suit No. 7 of 1959) were heard together by Shambhu Prasad Singh, J. The plaintiff-respondents in both suits were Nos. 1 to 5; Nos. 6 and 7 were two of the defendants (an adopted son and widow of Chamanlal Khedia). The appellants in the two appeals were other defendants who claimed title by purchases from respondent No. 6.

The plaintiffs' pleaded case (common to both suits) was that the disputed properties originally belonged to Saligram, that a partition/arbitral award (made a decree) allotted the property exclusively to Saligram, and that Saligram agreed in 1936 to transfer the property to the firm Gangasahay Rameshwar in discharge of certain family debts. Rameshwar (proprietor of that firm) allegedly entered into exclusive and adverse possession of the properties for over 12 years. Certain tenants (including Dwarka Das, adoptive father of one appellant) attorned to Rameshwar and paid rent to him; later disputes arose (notably in 1956) when Dwarka Das denied tenancy under Rameshwar and aligned with respondent No. 6.

A mutation in Rameshwar's name was ultimately allowed on 28-8-1957. Respondent No. 6 executed two registered sale deeds to Rameshwar on 26-8-1957, while two earlier sale deeds dated 29-7-1957 and 21-8-1957 were executed by respondent No. 6 in favour of the appellants. The plaintiffs sued seeking declarations of title, recovery of possession of schedule B properties, rent arrears, and confirmation of possession over schedule C lands.

The defendants-appellants denied the plaintiffs' title and contended they acquired title either under the 1936 arrangement, by adverse possession, or by attornment/tenancy and that the sale deeds in their favour were valid. The courts below concurrently found that the plaintiff-respondents had acquired title by adverse possession and that the appellants had attorned as tenants to the plaintiffs. The appeals challenged aspects of those conclusions and legal consequences.

Legal Issues Presented

  1. Whether an alleged oral settlement or the sale deeds executed by respondent No. 6 in 1957 (and the recitals therein) could defeat or divest the title already acquired by the plaintiff-respondents by adverse possession.
  2. Whether a decree for eviction could be granted where the plaint did not expressly aver service of a notice under Section 106 of the Transfer of Property Act (and how the distinction between clauses (g) and (h) of Section 111 bears on whether such notice is a part of the cause of action or a mere condition precedent).
  3. Whether the plaintiffs' claim (or acceptance) of rent for the period after alleged forfeiture constituted a waiver of forfeiture under Section 112 of the Transfer of Property Act.
  4. Whether procedural points (such as absence of specific averment about notice or timing of alleged settlement) could be raised for the first time in the second appeal.

Arguments of the Parties

Appellants' Arguments (Mr. Lal Narayan Sinha)

  • The plaintiff-respondents' title, even if previously acquired by adverse possession or attornment, was lost or affected by an alleged settlement of 1957 between the plaintiffs and respondent No. 6; plaintiffs' title could now only rest on the sale deeds dated 26-8-1957 (which contained recitals admitting appellants' title), and therefore plaintiffs could not succeed against appellants.
  • No decree for eviction could be passed because the tenancy had not been determined by a notice under Section 106 of the Transfer of Property Act.
  • Even if forfeiture occurred, the plaintiffs waived forfeiture by claiming (or accepting) rent for the period after the alleged forfeiture, invoking Section 112 of the Transfer of Property Act and relying on Jogeshuri Chowdhrain v. Mohammed Ebrahim (1887) ILR 14 Cal 33.
  • He relied on the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401 [FB]) to argue that absence of the relevant notice might render an eviction suit unsustainable and that such a point can be taken in second appeal.

Plaintiff-Respondents' Arguments (Mr. J.C. Sinha)

  • Distinguished authorities and relied on two Bench decisions (Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156 and Deosaran Sahu v. Ram Das Sahu, 1967 BLJR 574) drawing a distinction between the notice required by the last portion of clause (g) of Section 111 (a mere condition precedent) and the notice required by clause (h) read with Section 106 (part of the cause of action). He argued that the present suits fall under clause (g), not clause (h).
  • Pointed to the plaints which specifically alleged that the defendants were denying the plaintiffs' title, and submitted that this amounted to pleading a case of forfeiture under clause (g), so absence of an express averment about the notice did not make the suits non-maintainable.
  • On the waiver point the plaintiffs relied on Padmanabhaya v. Ranga (1911 ILR 34 Mad 161) and subsequent Madras authorities to contend a claim for rent in the suit for ejectment does not amount to a waiver since the election to forfeit became complete and irrevocable upon institution of the suit; they also invoked the second proviso to Section 112.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in This Opinion
Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (Full Bench) Held that a suit for eviction under Section 11 of Bihar Buildings Act cannot be maintained unless lease was determined by a notice under Section 106 T.P. Act; plaintiff must aver determination in plaint; such a point can be taken first in second appeal. The Court discussed this authority but distinguished the present cases as falling under clause (g) of Section 111 (notice as condition precedent) rather than clause (h) (notice part of cause of action), and therefore did not treat Niranjan Pal as controlling to render the suits non-maintainable.
Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156 Bench decision drawing distinction between notice required by last portion of clause (g) of Section 111 and notice required by clause (h) of Section 111 read with Section 106; treating notice under clause (g) as a condition precedent. Cited and followed for the proposition that absence of notice under clause (g) does not go to jurisdiction and is not part of the cause of action; used to support maintainability of the plaints.
Deosaran Sahu v. Ram Das Sahu, 1967 BLJR 574 Same distinction as Abdul Rahim: clause (g) notice is a mere condition precedent; clause (h) involves notice as part of cause of action. Relied upon by the Court to classify the present cases as falling under clause (g) and to hold that absence of express averment about notice did not defeat the suits.
Jogeshuri Chowdhrain v. Mohammed Ebrahim (1887) ILR 14 Cal 33 Landlord claiming rent for a period after statutory arrears was held to have waived his right to eject under the Rent Act (Calcutta context). Relied upon by appellants for the waiver argument; the Court considered it but preferred the Madras view as more applicable under the Transfer of Property Act and Section 112.
Padmanabhaya v. Ranga (1911) ILR 34 Mad 161 Held that once the lessee denied the title and the landlord instituted suit for eviction, claim for rent in that suit did not amount to waiver of forfeiture; election to forfeit was complete on institution. Preferred by the Court over the Calcutta decision on the waiver issue and applied to hold that claim for rent in the suit did not amount to waiver of forfeiture.
Koragalva v. Jakri Beary, AIR 1927 Mad 261 Followed Padmanabhaya v. Ranga on the same point regarding waiver of forfeiture. Noted as supporting the Madras view which the Court preferred in the present case.
Commr. of Hazaribagh Municipality v. Fulchand Agarwala, 1966 BLJR 808; AIR 1966 Pat 434 Held that ordinarily a plea of waiver cannot be allowed if it was not pleaded in the written statement. Relied upon to support the proposition that the appellants could not succeed on a waiver plea that was not pleaded earlier; used to reject the appellants' waiver contention.

Court's Reasoning and Analysis

The Court addressed the issues in sequence and explained the legal basis for rejecting the appellants' contentions:

  1. On the contention that an alleged 1957 settlement or the recitals in registered sale deeds in favour of Rameshwar defeated the plaintiffs' title, the Court observed that the sale deeds in favour of the appellants were dated prior to the sale deeds to Rameshwar. The Court accepted the concession that recitals in Rameshwar's deeds would not bind the appellants; accordingly, the appellants could not derive advantage from those recitals against the plaintiff-respondents. The Court emphasized the principle of reciprocity in enforcing agreements: a person cannot enforce an agreement at the instance of another if he himself is not bound by it.
  2. The Court noted the absence of any averment in the pleadings as to the precise date of the alleged settlement and that the appellants had not raised this point in the courts below; therefore, they could not raise it for the first time in the second appeal. Further, the Court held that an adverse-possession title cannot be relinquished or transferred by an oral settlement of the sort alleged — such transfer or relinquishment of an adverse-possession right must be by a registered instrument (and it was not asserted that the property's value was under Rs. 100).
  3. On the procedural question whether a decree for eviction could be granted without a notice under Section 106 Transfer of Property Act, the Court analyzed the authorities distinguishing clause (g) and clause (h) of Section 111. It accepted the plaintiffs' submission (supported by Abdul Rahim and Deosaran Sahu) that the notice required by the last portion of clause (g) is a mere condition precedent, whereas notice required by clause (h) (read with Section 106) forms part of the cause of action. The plaints expressly alleged that the defendants were denying the plaintiffs' title, which the Court treated as falling within clause (g). Accordingly, absence of an express averment about service of the Section 106 notice did not render the suits non-maintainable.
  4. On the waiver point under Section 112, the Court considered the competing authorities. It preferred the Madras view (Padmanabhaya v. Ranga and Koragalva v. Jakri Beary) that when the landlord has already elected to forfeit (by instituting suit for ejectment), a claim for rent in that suit does not amount to a waiver because the election to forfeit is complete and irrevocable upon institution. The Court read the second proviso to Section 112 (which states that acceptance of rent after institution of an ejectment suit is not a waiver) as supporting that approach, and held that mere claim for rent in the suit cannot be taken as conduct showing an intention to treat the lease as subsisting if the claim is contemporaneous with or subsequent to institution of the suit.
  5. The Court additionally noted Commr. of Hazaribagh Municipality v. Fulchand Agarwala for the procedural point that a plea of waiver ordinarily cannot be allowed if it was not pleaded in the written statement; this further supported rejecting the appellants' belated waiver argument.

Holding and Implications

Holding: The appeals were dismissed. The Court expressly affirmed the concurrent findings of the courts below that the plaintiff-respondents had acquired title by adverse possession and that the appellants had attorned as tenants to the plaintiffs. The Court also rejected the appellants' contentions regarding the effect of the alleged 1957 settlement, the necessity of a prior notice under Section 106 in the circumstances shown (clause (g) case), and that the plaintiffs had waived forfeiture by claiming rent.

DISPOSED OF — Appeals dismissed with costs.

Implications: The direct effect is the dismissal of both appeals and the upholding of the courts below on the facts and legal issues presented. The Court relied on existing precedents (and expressed a preference for the Madras line of authority on the waiver issue) in arriving at its conclusions. The opinion did not state that it was laying down a new legal principle beyond applying and preferring earlier authorities; the result upholds the plaintiffs' title and entitlement to eviction and rent relief as previously decreed.

This summary is based exclusively on the content of the opinion provided and does not supplement the text with external facts or interpretations beyond what the opinion itself states.

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    Kedar Das Mohta And Others v. Nand Lal Poddar And Others

    Shambhu Prasad Singh, J.:— Questions arising for decision in these two appeals being common, they have been heard together and are being disposed of by this judgment the respondents in the two appeals are also common; Nos. 1 to 5 are the plaintiffs and Nos. 6 and 7 are two of the defendants, adopted son and widow of Chamanlal Khedia. The appellants in two appeals are not common. They are other defendants of the two suits and claimed title to the properties in dispute on the basis of purchases from respondent No. 6 Title Suit No. 10 of 1957 was filed in the court of the Subordinate Judge at Chaibassa. Second Appeal No. 659 of 1963 arises out of this suit the other suit was originally filed before the Munsif at Chaibassa, but it appears subsequently this also came before the Subordinate Judge at Chaibassa and was numbered as Title Suit No. 7 of 1959 of that Court Second Appeal No. 660 of 1963 arises out of this suit.

    2. Briefly stated, the case of the plaintiff-respondents in both the suits was that the properties in dispute as described in schedule A to the plaint belonged to Saligram (father of Chaman Lal Khedial and others and stood recorded in their names in the record of revisional settlement of Porahat. In the year 1934, there was a partition suit No. 86 of 1934 of the court of the Subordinate Judge at Puralia between Saligram and his co-sharers. The dispute was referred to arbitration and according to the award of the arbitrators, which was ultimately made a decree of the court, the property was allotted exclusively to the share of Saligram. According to the award, Saligram was also to discharge the debts of the joint family firms Tularam Nathuram and Teipal Madangopal. The aforesaid firms were indebted to the firm Ganga sahay Rameshwar of Rameshwar (the original plaintiff), ancestor of plaintiff respondents, and in discharge of those debts Saligram agreed to transfer the property in dispute to the firm Gangasahay Rameshwar. The terms of the transfer were incorporated in a letter of the year 1936 and Rameshwar as proprietor of the said firm came in possession of the property. He continued in exclusive and peaceful possession of the properties in dispute openly and uninterruptedly as well as adversely to the interest of Saligram and his descendants for over 12 years. In 1936, Dwarka Das (original defendant No. 1), adoptive father of appellant No. 1 and husband of appellant No. 2 of Second Appeal No. 659 of 1963 and both the appellants of the other appeal were in possession of the properties described in Schedule B to the plaints (i.e, shop Nos. 10 and 11 in Second Appeal 659/63 and shop No. 7 in the other appeal) as tenants under Saligram. They attorned as tenants to Rameshwar and started paying rent to him. The firm Gangasahay Rameshwar owed some money to Dwarka Das and, therefore, they agreed that the rent payable by him would be adjusted as against that debt and it was so adjusted and satisfied by Jeth Sudi 15 Sambat 2009. After that Dwarka Das started paying rent in cash to Rameshwar. In 1956, there was some dispute between Dwarka Das and Rameshwar on the question of electric installation in the portion of the house in occupation of the former, Rameshwar insisted that he would install electricity only if rent was enhanced. Being annoyed, Dwarka Das directly applied for electric installation denying his tenancy under Rameshwar and setting up tenancy under respondent No. 6. Dwarka Das also stopped paving rent from that time. He also got filed a collusive and fraudulent application by respondent No. 6 in the Chakradharpur Municipality challenging the mutation in the name of Rameshwar, but they could not succeed.

    3. Dwarka Das and respondent No. 6 also set themselves to the task of winning over some of the tenants of the plaintiff-respondents including the appellants in the other appeal i.e Second Appeal No. 660 of 1963. Rameshwar then filed an application before the Circle Officer, Chakradharpur, praying for mutation of his name in respect of schedule A properties which was registered as a mutation case and ultimately allowed on 28-8-1957, During the progress of this mutation proceeding, there was a talk of amicable settlement between Rameshwar and respondent No. 6 and ultimately the latter agreed to execute two registered sale deeds in acknowledgement of the title of Rameshwar as full owner of schedule A properties and the other for transferring western portion of plot No. 1142 which had also been in possession of Rameshwar for over 12 years. In fact, he and his adoptive mother, respondent No. 7, executed the two registered sale deeds, as agreed upon, on the 26th of August, 1957. At that time, Rameshwar came to know of two sale deeds dated 29-7-1957 and 21-8-1957 executed by them selling portions of schedule A property to appellant No. 2 of Second Appeal 659 of 1963 and to the appellants of the other appeal respectively. At the instruction of respondent No. 6 the fact of the execution of the aforesaid sale deeds was also incorporated by the scribe in the sale deeds in favour of Rameshwar in spite of the vehement objection by one of the plaintiff-respondents. It is asserted that neither the sale deeds in favour of the appellants of the two appeals nor the recitals aforesaid in the two sale deeds in favour of Rameshwar have affected the title of the plaintiff-respondents. The appellants of the two appeals having defaulted in payment of rent for over two months in respect of schedule B properties and on account of the fact that they were denying the title of the plaintiff-respondents, made themselves liable for eviction.

    4. On the averments as stated in the preceding paragraph, the plaintiff-respondents claimed the following reliefs:

    (a) Declaration of their right, title and interest to the properties described in schedules B and C to the plaints and also a declaration that such right, title and Interest were not affected by the sale deed in favour of the appellants of either of the appeals.

    (It may be stated here that in schedule C to each of the plaints one more room was added to the property described in schedule B. in respect of which according to the plaintiff-respondents, they, were also tenants).

    (b) For recovery of khas possession of the lands and house described in schedule B to the plaints.

    (c) Decree for arrears of rent upto the date of the institution of the suit

    (d) Confirmation of possession over schedule C lands.

    5. For the purposes of the decision of the appeals it is not necessary to set out the case of the defendants-appellants or respondents, in detail the defendant-appellants of both the suit denied the title of the plaintiff-respondents on the basis of the arrangement of the year 1936, by adverse possession or by attornment by them as tenants. They also denied that the sale deeds in their favour executed by respondent No. 6 were fraudulent and collusive and claimed to have acquired valid title by them.

    6. The courts below have concurrently found that the plaintiff-respondents have acquired good title by adverse possession and that the appellants of both the appeals attorned to them as tenants.

    7. Mr. Lal Narayan Sinha did not challenge the aforesaid findings of the courts below, but submitted that whatever title the plaintiff-respondents might have acquired by adverse possession or by attornment of the appellants of the two appeals as tenants to them was lost by the alleged settlement of the year 1957 between them and respondent No. 6 According to him, now the plaintiff-respondents can claim title only on the basis of the sale deeds dated 26-8-1957 in their favour in which the title of the appellants of both the appeals was admitted and as such they could not succeed against them. He further submitted that no decree for eviction could be passed against the appellants as it had neither been alleged nor proved that the tenancy was determined by a notice under Section 106 of the Transfer of Property Act.

    8. There is no substance in the first contention of Mr. Lal Narayan Sinha, Really he did not elaborate it which indicates that he himself was not convinced of the merit of this contention. The sale deeds in favour of the appellants of the two appeals are of dates prior to the execution of the sale deeds in favour of Rameshwar. Mr. Lal Narayan Sinha conceded that recitals in the sale deeds in favour of Rameshwar would not bind the appellants in the two appeals, Obviously, therefore, the appellants cannot take any advantage of the recitals in the sale deeds in favour of Rameshwar against the plaintiff-respondents. An agreement cannot be enforced at the Instance of a person who himself is not bound by it in other words, there must be reciprocity as to the binding nature of the agreement between the person who wants to enforce it and the person against whom it is sought to be enforced. Mr. Lal Narayan Sinha faintly suggested that the alleged settlement between Rameshwar and respondent No. 6 might have been arrived at before the execution of the sale deeds in favour of the appellants of the two appeals. There is no averment in the pleadings of either party as to the actual date of the alleged settlement the settlement could have been arrived at even after the execution of the sale deeds in favour of the appellants of the two appeals and before the execution of the sale deeds in favour of Rameshwar. The appellants not having raised this point in the courts below cannot now be allowed to raise it in this Court at the second appellate stage on the assumption that the settlement might have been arrived at before the execution of the sale deeds in favour of the appellants of the two appeals. Even if the settlement which was oral was arrived at before the execution of the sale deeds in favour of the appellants of the two appeals, the appellants cannot enforce terms thereof as against the plaintiff-respondents for the reason aforesaid, i.e want of reciprocity. They do not admit that they had notice of the settlement before the execution of the sale deeds in their favour and, therefore, it would bind them. They cannot be allowed to say in the circumstances, that the settlement binds the plaintiff-respondents and they (the appellants) can rely on it against them (plaintiff-respondents). Further, the title acquired by the plaintiff-respondents by adverse possession could not be relinquished by an oral settlement of the nature alleged in the plaints. Such a right could be relinquished or transferred only by a registered instrument as it is nobody's case that the value of the property was less than Rs. 100/-.

    9. In support of his second contention, Mr. Lal Narayan Sinha relied on a Full Bench decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB). It has been held in that case that a suit for eviction from a house under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act cannot be maintained unless the lease is determined by a notice under Section 106 of the Transfer of Property Act and it is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action as he is required to give under Order 1. Rule 7 of the Code of Civil Procedure. It has further been held in that case that such a point can be taken for the first time in second appeal.

    10. Mr. J.C Sinha appealing for the plaintiff-respondents, in reply to the second contention of Mr. Lal Narayan Sinha, has relied on two Bench decisions of this Court in Abdul Rahim… v. Md. Azimuddin…., AIR 1965 Pat 156 and Deosaran Sahu v. Ram Das Sahu, 1967 BLJR 574. A distinction has been drawn in these decisions between a notice required by last portion of clause (g) and a notice required by clause (h) of Section 111 read with Section 106 of the Transfer of Property Act. It has been observed that while notice required by last portion of clause (g) of Section 111 is a mere condition precedent the notice required by clause (h) of that section is a part of the cause of action for a suit for eviction. Because of this distinction it has been held in these two cases that the absence of the notice required by clause (g) off Section 111 of the Act does not go to the root of jurisdiction so as to make the suit non-maintainable due to absence of cause of action. Mr. J.C Sinha has drawn our attention to the plaints of both the suits wherein it has been specifically stated that the defendant-appellants were denying and interested in denying the title of the plaintiff-respondents to the suit properties. According to him, therefore, the case before us was a case of absence of the notice required by clause (g) of Section 111 of the Transfer of Property Act and not of clause (h) of that section as was the case in Niranjan Pal's case, AIR 1964 Pat 401 (FB). Mr. Lal Narayan Sinha contended that as it was not expressly stated in the plaints that the appellants had forfeited their tenancy on account of the denial of the title of the plaintiff-respondents, the present case cannot be a case under clause (g) of Section 111 of the Transfer of Property Act. It is common knowledge that in this country specially in mofussil courts plaints are inartistically drafted and in my opinion, it cannot be said that because in the plaint after the statement that the defendant-appellants were denying the title of the plaintiff-respondents it is not further stated that they have forfeited the tenancy, the case will not be governed by clause (g) of Section 111 of the Transfer of Property Act I am, therefore, of the opinion that these cases being cases of forfeiture of tenancy under clause (g) of Section 111 of the Transfer of Property Act, notice was a mere condition precedent and not part of the cause of action for the suits and they cannot be defeated on the ground that the plaints contained no averment that such notices were served on the defendant-appellants. The appellants having failed to raise this point in either of the courts below cannot be allowed to raise it for the first time at the second appellate stage.

    11. Mr. Lal Narayan Sinha then contended that even if there was forfeiture of the tenancy on account of the fact that the appellants denied the title of the plaintiff-respondents, the forfeiture was waived on account of the fact that the plaintiff-respondents claimed rent for the period after the alleged forfeiture and before the institution of the suits. In support of this contention he relied on Section 112 of the Transfer of Property Act which runs as follows:—

    “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 lis accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.’

    12. According to Mr. Lal Narayan Sinha, claim for the rent in suit is covered by clause “any other act on the part of the lessor showing an intention to treat the lease as subsisting”. He relied on a decision in Jogeshuri Chowdhrain v. Mohammed Ebrahim, (1887) ILR 14 Cal 33. According to Section 22 of the Rent Act (Bengal Act 8 of 1869) if the ryot was in arrears of rent for a period of one year he made himself liable to be ejected from the land. The landlord instituted the suit for the arrears of rent for the whole of one year and a portion of next year and also for ejectment. It was held that he was not entitled to a decree for ejectment as he had claimed rent for the portion of the next year and thereby waived his right to get the ryot ejected which had accrued to him on account of the fact that the ryot was in arrears of rent for one year.

    13. On the other hand, Mr. J.C Sinha relied on the decision in Padmanabhaya v. Ranga, (1911) ILR 34 Mad 161. In that case the lessees had denied the title of the landlord by a notice. The landlord then instituted a suit for eviction of the lessees on the ground of forfeiture and also sued for rent subsequent to the date of the forfeiture. It was held that a claim for rent in the suit for ejectment would not amount to a waiver of fee forfeiture as the election to forfeit was complete and irrevocable when the suit for ejectment was instituted. This Bench decision of the Madras High Court was also followed by a Single Judge of that Court in Koragalva v. Jakri Beary AIR 1927 Mad 261. The Madras cases ware decided with reference to the provisions of the Transfer of Property Act whereas the Calcutta case was decided with reference to the provisions of Rent Act of 1869. Now, the second proviso to Section 112 expressly says that where rent is accepted after the institution of the suit to eject the lessee on ground of forfeiture, such acceptance is not a waiver. The rent claimed for the period subsequent to the forfeiture in a suit for eviction on the ground of forfeiture can be accepted by the landlord only after the Institution of the suit. If the acceptance itself does not amount to waiver, in my opinion, the mere claim acceptance in respect whereof can take place only after the institution of the suit cannot be said to be under the mischief of the clause “any other act on the part of the lessor showing an intention to treat the lease as subsisting” in Section 112 of the Transfer of Property Act. Once the election to forfeit is complete and irrevocable by institution of the suit, claim for rent in that suit cannot be taken as a waiver of the forfeiture. The act which may constitute waiver must be antecedent to the election and not an act simultaneous with the election or subsequent thereto. I would prefer to follow the Madras view in preference to Calcutta view and hold that there has been no waiver of the forfeiture in either of the two cases before us by the plaintiff-respondents. Further, a Bench of this Court in Commr. of Hazaribagh Municipality v. Fulchand Agarwala, 1966 BLJR 808 : (AIR 1966 Pat 434) has held that ordinarily plea of waiver cannot be allowed to be raised if it is not pleaded in the written statement. Thus, there appears no merit in the second contention of Mr. Lal Narayan Sinha either. In the result, both the appeals fail and are dismissed with costs.

    B.D Singh, J.:— I agree.

    14. Appeals dismissed.

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    Kedar Das Mohta And Others v. Nand Lal Poddar And Others
    (Sep 10, 1970)