NARASINGHA MADALA Vs. BONDOKA NAIK AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff against the affirming decree of the learned District Judge of Koraput at Jeypore in a suit for ejectment of the Defendants from 3 -50 acres of land on the footing that the Defendants have forfeited their tenancy. There has also been a claim for recovery of arrears of rent.

(2.) KRUPASINDHU and Dinabandhu who happened to be two brothers owned the disputed property. The Plaintiff was adopted by Krupasindhu. After the death of Krupasindhu his widow Annapurna and Dinabandhu who were jointly enjoying the property executed a registered lease in favour of the predecessors of the Defendants on 5 -10 -1937 (Ext. 1) in terms whereof, permanent and heritable right of tenancy was created infavour of the tenants. It was stipulated that they would pay rent partly in cash and partly in kind by Magha Purnima of every year. In case of default in payment of rent for three consecutive years, the lessees would be liable for ejectment. Dinabandhu died issueless and his joint interest devolved upon Annapurna and she become the sole zeroiti tenant. Annapurna died in December, 1962, and the Plaintiff came to be the sole heir. The Defendants paid rent up to 1961, but defaulted in making payment in May 1961, and also there was further default in May 1962 and May 1963, in the matter of payment of rent. In view of continuous default of three years, on 29 -5 -1969, the Plaintiff sent a notice (Ex. 2) to the Defendants in terms of Section 111(g) of the Transfer of property Act saying that the Defendants had forfeited the tenancy and accordingly they should vacate the land on payment of arrears of rent. In their reply dated 18.6.1965 (Ext. 3), the Defendants denied their liability for eviction and set up title in themselves in regard to the disputed property. The Plaintiff filed the suit on 22.9.1965.

(3.) THE learned Subordinate Judge at Jeypore who tried the suit came to find that the lease though genuine was invalid. He found the notice of forfeiture (Ext. 2) to have been duly served, but in view of the fact that the pro visions of Section 111(g) of the Transfer of Property Act had no application to agricultural leases, he found the notice ineffective. Though it was found that the Defendants had defaulted for three consecutive years in the matter of payment of the rent, relief was withheld on a further finding that the civil Court had no jurisdiction to take cognizance of the suit. Upon appeal, the learned District Judge came to find that the lease Ext. 1. was valid in law; though Section 111(g) of the Transfer of Property Act in terms had no application to agricultural leases, the principle applied and on such basis it must be found that there had been forfeiture. He affirmed the finding that the Defendants had defaulted in the matter of payment of rent for three consecutive years. Yet on his affirming the finding that the dispute was not cognizable in the civil Court, he also affirmed the decree of dismissal. It is against this affirming decree that the Plaintiff is in second appeal before this Court.