ERANKI NARASIMHAM Vs. PENUMUTCHU ATCHAYYA

JUDGEMENT

(1.) This is an appeal under Clause 15, Letters Patent against the judgment of Panchapagesa Sastri J. dismissing S. A. No. 1729 of 1947. The appeal arises out of a suit instituted by the appellant for recovery of possession of certain property from the respondent. The main defence of the respondent was that the suit property was situated in a Dharmila inam and therefore he had rights of occupancy. The ground on which the appellant sought to eject the respondent was that the respondent was in occupation under a lease for ten years dated 18-2-1935, under which he was liable to pay a rent of Rs. 120 per year but that he had committed default in payment of rent and in accordance with the provision in the lease the appellant had become entitled to recover possession of the land, that is to say, that the respondent had lost his rights by forfeiture. The appellant alleged that before suit he had issued a registered notice to the respondent intimating that he had forfeited his rights under the lease and calling upon him to surrender possession. The suit was decreed by the learned District Munsif of Kakinada. But on appeal the learned Subordinate Judge of Kakinada dismissed the suit on the ground that the appellant had not given notice of forfeiture. Though the lease in question was of agricultural land, the learned Judge held that the provision contained in Section 111(g), Transfer of Property Act would apply as embodying a principle of justice, equity and good conscience and as the appellant had failed to prove that he had given a proper notice of forfeiture, his suit for ejectment should fail. Against this decision of the Subordinate Judge there was a second appeal which was also dismissed by Panchapagesa Sastri J. on the same ground, viz., that the provision contained in Section 111(g), Transfer of Property Act would apply to the lease in question. He came to this conclusion mainly on the authority of the decision of a single Judge, Chandrasekhara Aiyar J. in --'Umar Pavlur v. Dawood Rowther', AIR 1947 Mad 68 (A). The learned Judge however granted leave to appeal.

(2.) Mr. K. Bhimasankaram on behalf of the appellant brought to our notice the recent decision of the Supreme Court in -- 'Namdeo v. Narmadabai', AIR 1953 SC 223 (B) in which it has been held that the provision in Section 111(g), Transfer of Property Act, as to notice in writing as a condition precedent to a suit in ejectment based on forfeiture of a lease is not based on any principle of justice, equity and good conscience. No doubt that decision related to the case of a lease made prior to the coming into force of the amendment embodied in Section 111(g), Transfer of Property Act. But we agree with Mr. Bhimasankaram that the 'ratio decidendi' of that decision would apply equally to the present case. Their Lordships specifically referred to the decision of Chandrasekhara Aiyar J. above referred to and expressly held that that case was wrongly decided. Following this decision of the Supreme Court, we hold that the provision contained in Section 111(g) would riot apply to the suit lease which is an agricultural lease as a principle of Justice, equity and good conscience. The appeal must therefore be allowed on this point.

(3.) Mr. C. V. Dhikshitalu for the respondent, however, tried to support the decree of the learned Judge by attacking the finding of the lower appellate court on certain issues which were not specifically dealt with by Panchapagesa Sastri J. in the view he took as to the necessity for notice of forfeiture. These issues were discussed by the lower appellate court as giving rise to three points for determination, viz., (1) whether the suit land is a pre-settlement inam or a darmilla inam? (2) whether the defendant is estopped from contending that it is a darmilla inam? and (3) whether the defendant is bound to surrender the advantage got by him under the compromise before he can set up the plea that it is a darmila inam? On the first point, the learned Judge was inclined to hold that the suit land was situated in a darmila inam, but he held against the respondent on the other points. It is necessary to state a few further facts to understand the scope of these points, which were pressed upon us by Mr. Dhikshitalu.