Sri Ram Chandra Naik Kalia And Others v. Ajodhya Singh And Others Respdts.

Dhavle, J.:— These appeals arise out of a suit for arrears of rent and ejectment. Two ancestors of the defendants executed a kabuliyat in favour of, and received a corresponding patta from, an ancestor of the plaintiffs in 1872, for a perpetual lease of the entire 16 annas of village Sondihra with tola Jagatpur on a fixed rent of Rs. 1,601 a year, payable in four instalments. The patta and kabuliyat provide, among other things, that if the lessee makes delay and default in the payment of any instalment as fixed, the lessor would have every right to cancel the lease, dispossess the lessees, settle or manage the ijara property in whatever manner he liked, and realize the arrears from the person and property of the lessees. The plaintiffs alleged that the defendants had paid no rent on account of the years 1333 to 1336 Fasli except a sum of Rs. 100 for 1333 sent by money order. They also alleged a further agreement that in addition to the fixed rent of Rs. 1,601 the lessor was to receive from the lessees six annas out of every rupee realized by the lessees from the leased property in excess of Rs. 1,800. The learned Subordinate Judge did not accept this part of the plaintiffs' case and the plaintiffs have accordingly filed an appeal, No. 111 of 1931, against the decision. He decreed the suit in respect of the other arrears alleged, and further ordered that in case these dues were not paid by the defendants within 15 days, the plaintiffs would be at liberty to eject them from the mukarrari property and recover khas possession thereof. The defendants have appealed against this part of the decision, and the only point seriously urged in their appeal, No. 128 of 1931, relates to the order of ejectment.

2. To take the defendants' appeal first, it has been contended that if the order of ejectment was passed under the Transfer of Property Act, it offends against Section 111(g) of the Act, because the plaintiffs did not, prior to the suit, do any act showing their intention to determine the lease for breach of the condition to pay rent according to the instalments fixed. A minor point has also been urged that the ejectment ought not to be in respect of the whole of the arrears found due, since the demand of rent for a subsequent year means a waiver of forfeiture for default in payment of the rent due for a previous year. Alternatively, it has been urged that if in view of Section 117 of the Transfer of Property Act, it be held that the lease is not governed by Ss. 111 to 114 of that Act, no ejectment should have been allowed because the notice required by Section 155, (1) of the Ben. Ten Act, has not been served. The learned Subordinate Judge does not indicate which Act, if any, he had in view when he allowed the ejectment. Sections 111(g) and 112 of the Transfer of Property Act, have been construed in various cases, out of which the defendants have cited 45 Cal 469(1). It was held in this case that the institution of a suit for ejectment cannot be regarded as the act, required under S. 111(g), showing the lessor's intention to determine the lease, since the cause of action must be antecedent to the institution of the suit and the forfeiture as a cause of action is not complete without the act. This view however was not accepted in the recent case of 58 Cal 1359(2), cited for the plaintiffs, in which Costello, J. (with whom Jack, J. concurred) considered that the requirement of an act showing the intention of the lessor to determine the lease in S. 111(g) may not have been intended to do anything more than lay down the law as it stood at that time, according to the relevant English authorities and preferred the view taken in 42 Bom 195(3), that there is no valid reason why the bringing of the action should not be equivalent to and constitute the “act showing the lessor's intention” which is required by the Transfer of Property Act, and that this act being done and completed when the plaint is presented, it seems to follow that at that point of time the lessor's cause of action is complete. 45 Cal 469 is also an authority for the proposition that a suit for arrears of rent for a subsequent year involves the waiver of a forfeiture for a previous year; but here again the plaintiffs are not without authority for contending on the contrary that the order of ejectment need not be limited to the last instalment in default. In 44 Mad 629(4), it was held that (as the head-note puts it) under Section 114 of the Transfer of Property Act, a tenant can be relieved against forfeiture of lease incurred by non-payment of rent only on payment of all arrears of rent, including such as may be barred by limitation (though this last detail does not arise in the present case). There has thus been divergence of judicial opinion on these points, and the Legislature amended S. 111(g) in 1929, for governing future transactions. I am not, as at present advised, prepared to follow 45 Cal 469 without qualification. But it is unnecessary definitely to pronounce on these respective contentions of the parties if the patta and kabuliyat in suit be not governed by the Transfer of Property Act at all. One reason for holding that Act does not apply would be that the lease is about 10 years prior to the Act and the Act is not retrospective. It is true that relief against forfeiture used to be given by the Courts on equitable grounds prior to the passing of the Act, but the precise lines on which such relief was administered were not identical with the effect of the wording found in the Act: see 4 CLR 469(5). The reason suggested by the defendants is S. 117, with which Chap. V of the Act concludes, and which provides that none of the provisions of the Chapter apply to leases for agricultural purposes except in so fat as the Local Government may declare all or any such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.

3. We have not been referred to any notification published by the Local Government in this behalf. The question thus reduces to whether the lease before us is or is not a lease for agricultural purposes within the meaning of the section. Plaintiffs contend that it is not, and cite in support 33 CWN 865(6), and 48 All 385(7). In the former of these cases the question was whether those defendants who were the plaintiffs' lessees could ‘exonerate themselves from the liability on their personal covenant under the lease to pay the rent by reason of a transfer’ (a gift) made by them to another defendant and notified to the plaintiff. The learned Judges held on a construction of the lease that the lessees were not so exonerated. They also upheld the view of the lower Court that having regard to Section 108(j) of the Transfer of Property Act, the original lessees were not exonerated. It was apparently in this connection that it was contended before them that the lease was not governed by that Act in view of S. 117, Their Lordships negatived this contention by pointing out that the lease in question was not a lease for agricultural purposes but created a tenancy for the purpose of realization of rent from the cultivating tenants and was, therefore, not excepted from the operation of Section 108(j) of the Act. The terms of the lease are not stated in the report, and the points urged before the Privy Council in the appeal from the decision of the High Court (which was upheld) do not appear to have included the applicability or otherwise of the Transfer of Property Act. The case only assists the plaintiffs so far as the learned Judges considered that a tenancy for the purpose of realizing rent from the cultivating tenants is not a tenancy for agricultural purposes within the meaning of Section 117 of the Act. But this had reference to the applicability or otherwise of Section 108(j) of the Act, which deals with a point on which there is no special provision in the Bengal Tenancy Act: see, for instance 19 Cal 774(8). The lease before us raises a problem of an entirely different character, to say nothing of the fact that in the Calcutta case the learned Judges came to the same conclusion as regards the appellant's liability on the construction of the lease. Now, tenure-holders are among the classes of tenants recognized by the Bengal Tenancy Act: see S. 4. The next section of this Act provides that

Tenure-holder means primarily a person who has acquired from a proprietor….a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it….

4. The “rents” referred to in this section must mean agricultural rents, as is evident from the alternative “bringing it under cultivation, etc.” and also from Section 7 of the Act which dealing with “limits of enhancement of rent of tenures,” provides in sub-S. (3) that regard shall be had to such circumstances as whether the land comprised in the tenure was first brought under cultivation by the agency or at the expense of the tenure-holder and whether the tenure was originally created at a specially low rent for the purpose of reclamation. It is thus clear that the right to hold land for the purpose of collecting agricultural rents, whether or not it constitutes a tenancy for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act, does constitute a tenure within the Bengal Tenancy Act. The question that next arises in the present case is whether the defendants are entitled to relief against forfeiture, under the Bengal Tenancy Act, such relief being also dealt with, but not quite on the same lines, in the Transfer of Property Act. As was observed by Banerjee, J., in 27 Cal 205(9), it could not have been the intention of the legislature that a case might, at the option of any party, be brought indifferently under the provisions of the Transfer of Property Act;

or of the Bengal Tenancy Act; the two enactments must have been intended to have separate application; and the line of demarcation between the two is, to a certain extent, indicated by Section 117 of the Transfer of Property Act, and

The distinction between cases coming under the Transfer of Property Act, and those coming under the ordinary Rent Law, is constituted by the fact of the land being non-agricultural or agricultural.

5. The land in the present case is clearly agricultural. The lease in 48 All 385, cited for the plaintiffs, though a lease of an entire village as in the present case, seems distinguishable on the detailed provisions. The position of a “thekadar” lessee under the Agra Tenancy Act which had to be considered in that case would also appear to be different from that of the defendants under our Tenancy Act, while the question that the learned Judges dealt with was, as in 33 CWN 585, the applicability or otherwise of Section 108(j) of the Transfer of Property Act. The lessee there, as pointed out by Sulaiman, J., was (among other things) not entitled even to plant groves on the land, which is not the case here, though this is perhaps a small detail. The other learned Judge, Mukarji, J. declined to treat the lease as the lease of a firm, in view of the facts that the lessee's designation “thekadar” is defined in the Agra Tenancy Act as including a farmer (or other lessee of proprietary rights) and that though it was open to the lessee to cultivate any particular land if he so desired, that was not the primary object of the transaction. The learned Judges both found that the Agra Tenancy Act “is directed to govern agricultural ten ancies, and not tenancies, the object of which is not the promotion of agriculture.” This, as I have already shown, cannot in the same sense exactly be affirmed of the Bengal Tenancy Act the definition of a tenure holder under this Act being what it is. We also have a decision of this Court in 4 Pat 404(10) where, in dealing, with a lease of entire villages, Dawson-Miller, C.J, pointed out that a liberal interpretation should be given to the words of Section 117 of the Transfer of Property Act, because it was probably the intention of the legislature in exempting leases for agricultural purposes from the operation of Ch. 5, Transfer of Property Act to retain in force the special provisions relating to the class of leases dealt with in Bengal Rent Act of 1859 and 1869 and which may be compendiously described as leases for agricultural purposes. As in that case, the lease in the present case covers an entire mouza, and the lessees are charged with the care of the boundary limits of the mouza. The patta requires them “by their good treatment and by making settlement” to cultivate the parti and dib lands, and entitles them to keep the increase in the rent roll. They are not to reduce the raiyati rents that have already been fixed, and they have a right to plant trees or lay out gardens or sink wells, etc. It seems to me that these provisions are sufficient to bring the lease within the Bengal Tenancy Act, and therefore to exclude them from Ch. 5, Transfer of Property Act. The plaintiff in 4 Pat. 404 appealed to the Privy Council and succeeded on another point, but did not contest the view of the High Court that the lease was governed not by the Transfer of Property Act but by the Bengal Tenancy Act: 7 Pat. 134(11). The fact that the lessees are found in the Record of Rights (a record primarily prepared for agricultural lands), as tenure-holders is further indication in the same direction.

6. We thus come to the alternative contention of the defendants. Section 155 of the Ben. Ten Act, dealing with “Belief against forfeiture,” provides that

A suit for the ejectment of a tenant on the ground…. (b) 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 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 the request.

7. It is not pretended for the plaintiffs that they served any such notice. The patta and kabuliyat, however, make no such provision. But under Section 178 of the Act:

(1) Nothing in any contract between a landlord and a tenant made before or after the passing of this Act……(c) shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act.

8. A tenure holder being a tenant under the Act, the landlord's suit would thus fail in respect of the prayer for ejectment, if the matter were governed by Ss. 155 and 178 alone. The general “Restrictions on exclusion of Act by agreement” in S. 178 are subject to three provisos which we find towards the end of the section, and though none of these provisos applies to the present case where we have to deal with a permanent mukarrari lease made before the passing of the Act, it is important to observe that the wording of proviso 1:

Nothing in this section shall affect the terms or conditions of a lease….for the reclamation of waste land….

was considered in 13 CLJ 300(12), and was held not to exclude the operation of Ss. 89 and 155 in a case where the agreement between the parties provided that the amalnamah would stand cancelled and cease to be operative on the lessee's default in payment of the bonus and that the lessor would be at liberty to re-enter and settle the land with other tenants in the event of the lessee's failure to bring stated areas under cultivation by a given time. The lease before us is, however, governed by S. 10 which provides that a holder of permanent tenure, whether mukarrari or not, shall not be ejected by his landlord except on the ground that be has broken a condition on breach of which be is, under the terms of a contract between him and his landlord, liable to be ejected: Provided that where the contract is made after the commencement of this Act, the condition is consistent with the provisions of this Act.

9. This calls for two observations. In the first place the section is negative in form and does not provide that a permanent tenure-holder may be ejected for breach of any and every condition in pursuance of his contract with the landlord. Secondly, by requiring the condition to be consistent with the provisions of the Act, if the contract is made after the commencement of the Act; the proviso definitely implies that where the contract is made before the commencement of the Act, the condition need not be consistent with the provisions of the Act. This is made even clearer by a comparison with Section 18 of the Act, according to which a raiyat holding on a fixed rent….

(b) shall not be ejected by his landlord, except on the ground that he has broken a condition consistent with this Act, and on breach of which he is, under the terms of a contract between him and his landlord liable to be ejected.

10. No distinction is made in this provision between contracts made before and those made after the commencement of the Act, and the condition broken must, to warrant ejectment, be consistent with the Act in either case, unlike the proviso in S. 10. Our attention has been drawn to 4 CLJ 521(13), in which it was held that a permanent tenure-holder cannot, having regard to Section 65 of the Act, be ejected for nonpayment of rent, though the agreement provided for making the land khas through the Collector in case of violation of any of the terms of the kabuliyat which included the payment of rent. But that was a case from Orissa, to which neither S. 178 nor S. 10 of the Act had been extended. S. 65 provides that a tenant who is a permanent tenure-holder (or a raiyat of two out of three classes given in S. 3), shall not be liable to ejectment for arrears of rent, but that his tenure or holding shall be liable to sale in execution of a decree for the rent thereof and the rent shall be a first charge thereon. As I have already stated, the kabuliyat in the present case expressly entitles the landlord to dispossess the lessees for delay and default in the payment of any instalment of rent and to cancel the lease. The punctual payment of rent is thus clearly a condition, on breach of which the defendants are, under the terms of their lease, liable to be ejected. The condition is undoubtedly inconsistent with S. 65 which forbids ejectment for arrears of rent due from a permanent tenure-holder among others; but to ignore it merely on this ground would be to overlook the distinction deliberately made or implied in the proviso to S. 10 between contracts made before, and those made after, the commencement of the Act, and also the cardinal principle in the interpretation of a Statute that if there are two inconsistent enactments, it must be seen if one cannot be read as a qualification of the other: (1875) 10 Ch 479(14).

11. So far as the proviso to S. 10 implies that the holder of a permanent tenure created before the passing of the Act may be ejected for breach of a condition even though the condition may not be consistent with the other provisions of the Act, it is not impossible to read it as a qualification of the provision in S. 65 which applies to all permanent tenure-holders generally (besides certain classes of raiyats) and whether or not their contracts were made before the passing of the Act and whether or not they provide for ejectment for nonpayment of rent; and if the two provisions be read in this manner, the ejectment of the defendants for non-payment of rent could not be said to be contrary to S. 178(1)(c) or “otherwise than in accordance with the provisions of this Act”, the proviso being just as much a portion of the Act as S. 65 itself. Nor did the defendants seriously urge that notwithstanding the provision for ejectment for non-payment of rent in their lease they were protected by S. 65 from such ejectment. Their substantial contention was that the plaintiffs had not complied with S. 155 and were therefore not entitled to the order of ejectment.

12. This section does not even purport to deal with the legality or otherwise of any condition on breach of which the tenant may, under the terms of his contract with the landlord, be liable to ejectment, and is therefore not affected by any implications in the proviso to S. 10; it only regulates the modes in which the landlord may obtain ejectment and the Court may give him that relief together with a locus penitential to the tenant. Ejectment “in accordance with the provisions of this Act” would in this view mean that as provided in S. 89 no tenant shall be ejected from his tenure or holding except in execution of a decree, and further, that no landlord can obtain a decree for ejectment for breach of a condition in the lease except in a suit brought in accordance with S. 155. This way of looking at the matter is supported by a consideration of the position of a permanent tenure-holder under the Rent Law (Bengal Act 7 of 1869), which was replaced by the Bengal Tenancy Act. The Act of 1869, like its predecessor, Act 10 of 1859, made lease-holders not having a permanent or transferable interest liable to be ejected and their leases cancelled (but not “otherwise than in execution of a decree or order under the provisions of this Act”) if any arrears of rent should be adjudged to be due from them, but as regards tenure actually called under-tenures in the Act which by the title deeds or the custom of the country were transferable by sale, it provided Dot for ejectment but for sale in execution of decrees for arrears of rent (see S. 59). The holders of mukarrari istimrari ijarias or other transferable tenures were thus only liable to ejectment in accordance with the conditions or provisions of their lease: see 19 WR 349(15), a case decided under Act 10 of 1859 and 22 WR 376(16), a case decided under Act 8 of 1869. Both the Acts, however, contained a provision (S. 78 and S. 52, respectively) that:

In all……….suits for the ejectment of a ryot or the eancelment of a lease, the decree shall specify the amount of the arrear, and in such amount, together with interest and costs of suit be paid into Court within fifteen days from the date of the decree, execution shall be stayed,

the locus penitentiae now found (with some modifications) in sub-Ss. 2 to 4 of Section 155 of the Bengal Tenancy Act. A doubt was entertained at one time whether the language of this provision was confined to the statutory ejectment for nonpayment or was also applicable to a contractual liability to ejectment on the same ground, but this doubt was set at rest, in favour of the wider construction, by the Full Bench decision in 10 WR 12(17), their Lordships of the Judicial Committee also taking the same view, and observing that the Act may, upon the whole, be termed a remedial one in 12 Beng LR 439(18). Holders of permanent mukarrari tenures were thus governed by the provisions of their leases as regards liability to ejectment for non-payment of rent among other grounds, but were nevertheless entitled, if the matter came into Court, to have fifteen days' grace for payment. The Bengal Tenancy Act seems to have left them in substantially the same position, while specially providing in S. 179 for future permanent mukarrari leases in permanently settled areas that nothing in the Act shall be deemed to prevent such leases being made on any terms that may be agreed upon between the parties. We are however not called upon in this case to consider whether as in 13 C.L.J 300 a case on the somewhat similar provision found in proviso (i) to S. 178, the saving of “terms agreed on” between the parties in S. 179 will or will not exclude the operation of S. 155, though it may be observed that it was not without some difference of opinion that in 29 Cal. 674(19), it was decided by a Full Bench that S. 179 is not controlled by S. 67 notwithstanding the express mention of the latter section in S. 178(3)(h). It seems to me that the proviso to S. 10 leaves permanent tenures created before the passing of the Act to the operation of the terms agreed on between grantor and grantee irrespective of the general provisions of the Act as regards substantive rights. If such old permanent leases be also mukarrari, there would be even less reason for interfering with the freedom of contract of the parties. Having regard to the scheme of the Act, my conclusion is ‘that the defendants’ contention that notwithstanding S. 10 the operation of S. 155 is not excluded in the present case ought to be accepted, and that the plaintiffs are not entitled to the order of ejectment because they have not served on the defendants the notice required by S. 155.

13. I would accordingly allow appeal No. 128 and modify the decree of the lower Court by disallowing the prayer for ejectment. The defendants will also be entitled to the costs of the appeal and of the suit in respect of the valuation of that issue which they put at Rs. 1,601.

14. The only point raised in the plaintiffs' appeal No. 111 is that their story of a further agreement by the lessees to pay to the lessor six annas out of every rupee realized by them from the leased property in excess of Rs. 1,800 ought to have been believed. But in the first, place this alleged agreement is unregistered, while the undisputed agreement which was executed on the same day was registered about six weeks afterwards.

15. The story of the unregistered agreement told by Narhari Tantia, plaintiffs' only direct witness on the point, is unconvincing to a degree, and the Record of Rights of 1912 is also against it Plaintiffs produced some of their account books in support of their allegation that the lessees acutally paid Rs. 52 extra in pursuance of the disputed agreement, but these by themselves cannot fasten any liability on the tenants. Nor is one's confidence in the evidence adduced for the plaintiffs increased by the statements of Kesho Rao, P.W 5 that “hissab of payments made is done on hissab bahee every year and the signature of the persons making payments is taken on the hissab bahee,” though the witness at once went on to say that “the signature of the person making payment is not taken”. In my opinion, the learned Subordinate Judge was clearly right in rejecting the story of the further agreement.

16. I would therefore dismiss the plaintiffs' appeal with costs.

17. Courtney-Terrell, C.J:— I agree.

18. Order accordingly.