SAKUNTHALAMMAL Vs. CHANDRASEKAR REDDIAR

JUDGEMENT

(1.) THIS second appeal arises out of a suit in ejectment and the question raised is whether there has been a valid determination of the tenancy on forfeiture and whether proper notice under section 114-A of the Transfer of Property Act has been issued for institution of the suit in ejectment. The trial court found for the defendants on this question and dismissed the suit. On appeal the learned subordinate Judge of North Arcot held that the notice in question satisfied all the requirement under section 114-A and gave judgment and decree for the plaintiff in ejectment.

(2.) ONE Lalkhan Sahib was the original lessee. He obtained a lease from one narayanaswami Reddiar, the predecessor-in-interest of the present plaintiff of a vacant site for constructing a residential building therein. The document evidencing the lease is a registered one in two parts Ex A-1 is the counterpart of the lease executed by Lalkhan in favour of Narayanaswami Reddiar and Ex. B-1 is the instrument executed by Narayanaswami Reddiar to Lalkhan Sahib. The lease is dated 26-8-1887. Under its terms the leased site should be used only for raising a residential building and should be used only for residential purposes. It is seen from the document that the lessor himself was carrying on a business and there was a specific covenant by the lessee not to carry on any business in the leased premises. If there was a breach of the covenant, there was provision for re-entry, the lessee to remove the superstructures and surrender vacant possession of the premises to the lessor. The covenant against carrying on trade in the leased premises, it is provided in the document, would bind also assignees and transferees from the lease. The original defendants in the suit were the heirs of Lalkhan Sahib and subsequent assignees from them are added as defendants 9 and 10, the 9th defendant being the present appellant. There have been disputes inter se between the 9th and and 10th defendants as to their respective interests in the suit property. The courts below found that the lease is a permanent one and this view has not been questioned. The annual rent reserved in Rs. 3. The plaintiff who is the grandson of the original lessor charged the defendants with breach of the terms of the defendants with breach of the terms of the lease. It is his case that in 1948 the defendants started putting up shops and using the leased premises for trade purposes. The appellate court finds that the plaintiff had orally protested against the conversion of the residential premises into business premises and that though the 1st defendant promised to close the shops he continued to trade in violation of the covenants under the lease. On 16-11-1950 the plaintiff issued notice to the heirs of Lalkhan drawing their attention to the covenant in the lease deed against carrying on any business in the premises, the liability for forfeiture if the covenant was violated and the fact that in spite of having agreed to close the business, the business was continued. Pointing out that the tenants had forfeited the tenancy, the notice called upon them to vacate the premises by 1-1-1951. Damages were also claimed as provided for in the lease deed. This suit in ejectment was instituted on 14-3-1956. In defence various contentions were raised. Title to the premises by adverse enjoyment without payment of any rent at any time was pleaded. It is unnecessary to refer in detail to the several defences put forward; it is sufficient to state that the findings of the trial court that the defendants have only a leasehold interest in the premises and that there was no adverse possession have not been the subject of further challenge. The only question that called for serious consideration was the plea that the lease had not been validly terminated by proper notice under sections 111 (g) and 114-A of the transfer of Property Act. A plea that the premises had all along from the beginning been used for business purposes was also found against, the view of the courts below being that it was only in or about 1948 that business was started in the premises, leading to immediate protests from the plaintiff. Though the suit has been filed only in 1956 it may be stated that there has been no plea that since the breach in 1948, there was been waiver or condonation of the breach. In fact the defendants have been denying tenancy and denying their liability to pay rent. They were claiming title to the property itself by adverse possession and they did not pay any rent after 1948. Though the defendants had six years since the issue of notice they never expressed any intention to remedy the breach and discontinue the user of the premises in violation of the specific terms of the lease. There has been no reply to the notices issued on behalf of the plaintiff in 1950. As it transpires, the present appellant has only a fractional interest in the superstructure.

(3.) NOW to examine the contentions that prevailed in the court of first instance and have been over-ruled on appeal it is elementary that a suit in ejectment would lie against a tenant only on the determination of the lease. under section 111 of the Transfer of Property Act, as it now stands, a lease of immoveable property can be determined also by forfeiture. Section 111 (g) provides.