SARDAR KARTAR SINGH Vs. PHOOLWATI

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit for arrears of rent and ejectment. The only ground urged by learned counsel for the appellant is that the courts below have taken an erroneous view of the law in holding that Section 114 of the Transfer of Property Act did not apply to the facts of the case where the provisions of Section 3 (1) (a) of the U. P. Control of Rent and Eviction Act were applicable. The facts very briefly are that the plaintiff after acquiring title to the property brought a suit for ejectment and for arrears of rent and alleged that the defendant was in wilful default in respect of a demand for arrears of rent made by the plaintiff. The defendant pleaded that the notice of demand had not been received by him. But this contention was not accepted by the courts below. The courts found that the defendant was in wilful default within the meaning of Section 3 (1) (a) and there was no impediment in the way of the plaintiff bringing a suit for his ejectment. The court further found that by a valid notice under Section 106 of the Transfer of Property Act the defendant's tenancy had been determined. Learned counsel's contention is that even if the defendant had not said arrears of rent he was entitled to protection afforded by Section 114 of the Transfer of Property Act and he was entitled to pay the rent that had not been paid and save himself from ejectment. Section 114 of the Transfer of Property Act applies to cases where the forfeiture relied upon by the plaintiff is one incurred under the terms of the lease; The removal of a bar from the way of the plaintiff landlord's instituting a suit for ejectment mentioned in Section 3 (1) (a) of the U. P. Control of Rent and Eviction Act is not in any sense a forfeiture of any rights under the lease or under the terms of the tenancy which the defendant held. Learned counsel has referred me to three cases, two of them are of the Calcutta High Court one reported in ILR 49 Gal 150 : (AIR 1922 Cal 394), Ahindra Nath Chatterjee v. Lt. Col. E.K. Twiss and the other reported in AIR 1958 Cat 428, Luxmi Spinning and Weaving Mills Ltd. v. Md. Ibrahim. In both these cases the lease under which the defendant held the property contained a term that in the event of a certain default in payment of rent the lease might be terminated. The plaintiff claimed that the lease had been determined as forfeiture had been incurred by the tenant according to the terms of the lease. It is on such facts that Section 114 of the Transfer of Property Act was held to be applicable. The third case is an Allahabad case Northern India Coal Co. v. Bitti Kuer reported in 1949 All WR 539. That was a decision of a learned Judge of this Court in which the terms of the lease are not mentioned and the question which is now before me relating to the applicability of Section 114 of the Transfer of Property Act was neither pleaded nor decided. THIS case, therefore, affords no guidance. The language of Section 114 is very clear. It says, to begin with,-

(2.) IN the light of the above observations I am of opinion that there is no force in this appeal and it is rejected under Order 41, Rule 11, C. P. C.