M CHENGIAH Vs. UMADAI RAJAH RAJA DAMARA KUMARA THIMMA NAYANIM BAHADUR, PRESENT HOLDER OF THE KALAHASTI ZEMINDARI

JUDGEMENT

(1.) The first question with which I propose to deal is whether, as contended by the appellant (2nd defendant) and by the 1 defendant in his Memorandum of Objections, the leases of 1894 evidenced by Exhibits A and B were determined in 1897. Exhibit XXIX of the 26 Sept. 1897 shows that the 1 defendant in whose favor Exhibits A and B were executed had fallen into arrears, and that the Tahsildar proposed to the Dewan that the leases should be cancelled for breach of the condition to pay the rent according to the kists. This was followed by Exhibit X, which is dated the 24 October 1897. This is from the Tahsildar to the 1 defendant, and informs the latter that, as he had fallen into arrears and was raising unnecessary disputes, a hukum had been issued on the 22 October, 1897-this was a hukum issued by the Dewan as appears from Exhibit XI-cancelling his Izara in accordance with the last term in Exhibits A and B, and directing the villages comprised in the leases to be taken under estate management, and that takids have been written to the people of the villages informing them of these matters. The 1 defendant was, therefore, given to understand that he should not thereafter collect money or do anything else in the village. The 1 defendant then appears to have asked the Dewan to reconsider the matter and the result appears in Exhibit XI, dated the 12th December 1897. This document, which is from the Tahsildar to the 1 defendant, refers to the cancellation of the Izara by the hukum of the 22nd October, and then goes on to say that as the 1 defendant had agreed to a certain arrangement the Dewan had issued a fresh hukum, on the 10 December 1897, stating that "the Izara that had to continue according to the previous Izarakhat had again been sanctioned," and that takids had been written to the villagers accordingly. The only other document which need be referred to is Exhibit H, a petition sent by the 1 defendant to the Tahsildar, in which the 1 defendant says "the Dewau . . . restored our Izara villages to us whose Izara had been cancelled." Coming to the oral evidence we find the 1 defendant stating that the leases were cancelled in fasli 1307, that the cancellation was proclaimed in the villages by beat of torn torn, ani that the villages were under estate management for two months after the cancellation. He is supported by Defence Witness No. 4 who is Monegar of one of the villages ; by Defence Witness No. 5, a chief ryot of the same village; by Defence Witness No. 6, Monegar of another of the villages who says that he received a takid to the effect that the Izara was cancelled and that he published by beat of tom-tom that kist should not be paid to the Izaradar ; by Defence Witness No. 7, chief ryot of one of the villages ; and by Defence Witness No. 8, Curnam of all the villages. The District Judge has dismissed all this oral evidence with the remark that it is interested. What the witnesses speak to is, however, highly probable, for it is only what would in ordinary course have happened. Exhibit X states that takids had been written to the people of the villages regarding the cancellation, and bottoming is a usual way in this country of making such a matter generally known. Further the evidence is entirely uncontradicted and this although the plaintiff's witnesses were examined later. An attempt was also made to show that some rent was collected on behalf of the Rajah during the period between Exhibits X and XI. The evidence regarding this is not very satisfactory. But the collection of rent on behalf of the Rajah during that period is not essential for the purpose of showing that the leases were determined, and it has not been suggested that anything was collected by the 1 defendant or by the 2nd defen dant's father. On the evidence I have no hesitation in holding that the leases were determined. Under Section 111 (g) of the Transfer of Property Act, a lease of immoveable property determines by forfeiture if there is a breach of a condition which entitles the lessor to re-enter and if the lessor does some act showing his intention to determine the lease, and both these conditions are amply fulfilled in the present case. It is pointed out in The Zemindar of Vijianagaram V/s. Behara Suryanarayana Patrvlu (1901)I.L.R 25 M. 587 at p. 592 that "according to the common law of the land which specially prevails in Zemindaries and similar estates the delivery of possession, when the owner transfers the estate or a portion thereof, by sale, gift, lease or otherwise, is by the issue of the orders or notices to the kurnams and other village officers whose duty it is to collect rents from the persons in occupation of the land, and also, though not invariably, by a general proclamation addressed to the ryots and other persons in occupation of the land, giving intimation of the transfer in question and requiring them to attorn and pay rent to the transferee." The same would apply mutatis mutandis to the case of a lessor taking possession after cancellation of a lease like those in suit and there can therefore, in my opinion, be no doubt ss to the intention of the lessor in this case. The District Judge is of opinion that " if there was cancellation and forfeiture there was also a waiver of forfeiture as evidenced by Exhibit XI and the subsequent enjoyment by the lessees and payment of rent." Section 112 of the Transfer of Property Act deals with the question of waiver of forfeiture. It states that a forfeiture under Section 111(g) is waived by any act on the part of the lessor showing an intention to treat the lease as subsisting, provided that the lessor is aware that the forfeiture has been incurred. That is to say, if the lessor is aware that an event has occurred which entitles him to determine the lease, he may show by his acts that he does not intend to take advantage of it. But if he has already taken advantage of it, and determined the lease, Section 112 can, in my opinion, have no application. The leases under Exhibits A and B having been cancelled the suit as based on Exhibits A and B must fail. It is contended, however, for the plaintiffs, relying on Sheo Karan Singh V/s. Maharaja Parbhu Narain Singh (1909) I.L.R. 31 A. 276, that he is entitled at any rate, to recover compensation for use and occupation as the defendants were again let into possession under the circumstances already set out, and that the rent fixed in the lease is a fair basis for the amount to be decreed. To this it is replied that no such relief was asked for in the plaint, and that therefore it cannot be granted. Rachhea Singh V/s. Upendra Chandra Singh (1899) I.L.R. 27 C. 239 is relied upon. That case follows Surendra Narain Singh V/s. Bhai Lal Thakur (1895) I.L.R. 22 C. 752 and Lukhee Kanto Dass Chowdhry V/s. Sumeerudi Lusker (1874) 13 B.L.R. 243 and in all these cases the facts were very different from the facts in the present case. It was observed in Surendra Narain Singh V/s. Bhai Lal Thakur (1895) I.L.R. 22 C. 752 that the suit, if tried as one for use and occupation, would raise issues of an entirely different character, and would necessitate a new trial of the case upon fresh evidence. The same remark is applicable in the case of Lukhee Kanto Das Chowdry V/s. Sumeerudi Lusker (1874) 13 B.L.R. 343 and Rachhea Singh V/s. Upendra Chandra Singh (1899) I.L.R. 27. C. 239. The facts in the present case raise no such obstacle. I would therefore follow Sheo Karan Singh v. Maharaja Parbhu Narain Singh (1909) I.L.R 31 A. 276 and (sic) that the plaintiff is entitled to compensation for use and occupation. The further question arises as to the period for which such compensation can be granted. The limitation is three years under Art. 115 of Schedule II of the Limitation Act, and this being so the claim for use and occupation is barred save in respect of faslis 1310 and 1311 which are the last two faslis for which claim is laid. The amount to be paid for use and occupation for faslis 1310 and 1311 has now to be determined. Under Exhibits A and B a money rent is fixed. In addition to this a road cess is to be paid and a certain quantity of straw delivered. The road cess claimed is calculated at the usual rate on the lease amount, and this, in my opinion, is correct. There are no claims for remission in faslis 1310 acd 1311. The lease amount plus road cess and the value of the straw may therefore be taken as the reasonable amount payable for each fasli for use and occupation. I do not think the plaintiff should be allowed interest prior to suit. The total demand shown in the schedule of account annexed to the plaint for faslis 1310 and 1311 may therefore be accepted as the amount for which the defendants are liable for" those faslis. That schedule, however, shows that collections were made from the defendants for those faslies, and the defendants are therefore now liable for only the balance shown. These amount to Rs. 665-2-3, and for this amount I would give the plaintiff a decree with interest at 6 per cent per annum from date of suit till payment. For the decree amount the defendants are jointly and severally liable as it is abundantly proved that each of them was interested in the occupation of every portion of the suit property. There will be proportionate costs throughout. Abdur Rahim J.

(2.) The suit in which this appeal arises was instituted on the 29 June 1903 by the Zemindar of Kalahasti for recovery of Rs. 8,059-8-7 as rent due under two Izara leases with respect to three villages, Adaram, Brahmanapalli and Kandalur, for faslis 1305 to 1311. The lease of Adaram and Brahmanapalli was granted on the 15 February 1894 and of the village of Kandalur on the 9 March 1894, both for a term of 9 years, to the 1 defendant under registered cowle deed ; the 1 defendant executed corresponding muchilikas in the Zemindar's favour. The 2nd defendant was impleaded on the 7 October 1903 as representative of his father who in February 1898, by an arrangement entered into between him and the 1st defendant and sanctioned by the plaintiff, was let into possession of the three villages. The suit was contested by the defendants on various grounds but the District Judge, having regard to his findings on the different issues raised at the trial, has given a decree to the plaintiff for a sum of Rs. 5,305-12-3 to be recovered from the 1 defendant and for Rs. 4,242-15-11 out of the above sum to be recovered from the 2nd defendant, thus holding both the defendants to be jointly and severally liable in respect of the latter sum. The decree also provides for the usual interest to be paid on the amount decreed and directs each party to pay costs to the other in proportion to the claim allowed or disallowed.

(3.) This appeal has been preferred by the 2nd defendant, and the 1 defendant has also filed a Memorandum of Objections. Some of the objections taken to the judgment of the District Judge are common to both the defendants.