SHIVA PRASAD SINGH Vs. MANDIRA KUMARI DEBI

JUDGEMENT

(1.) This is a first appeal from a decree of the learned Subordinate Judge of Dhanbad dismissing the plaintiff's claim for possession of certain property. On Baisakh 20, 1325 B.S., the defendant's husband took a lease of certain land described in schedule (ka) of the plaint situate in the town of Jharia from the plaintiff at an annual rental of Rs. 31-8-9. This lease was in due course registered. It was a term of the said lease that the defendant's husband would not alter the condition of the leasehold land in any way or render it unfit for cultivation, and if he did so, the plaintiff would be entitled to evict him from possession.

(2.) According to the plaintiff, the defendant's husband did not cultivate this land but, on the contrary, let it out for1 building purposes. In Magh 1333 B.S. the defendant's husband died, and the defendant became entitled to his property. The plaintiff alleged in his plaint that the defendant's husband had no right under the lease to let the land to tenants for building purposes and as there had been a breach of the condition in the lease the plaintiff was entitled to treat the lease as forfeited and accordingly to recover possession of the same. It is expressly pleaded in the plaint that the plaintiff gave notice to the defendant on Agrahayan 6, 1341 B.S. to give up possession of the property with effect from Pous 1, 1341, B.S. In spite of the notice the defendant had refused to relinquish possession of the property, hence the present suit. There was an alternative claim that if the plaintiff was declared not-entitled to obtain khas possession of the property, he should be given a decree for arrears of rent at the rate of Rs. 6 per katha which was the prevailing rate in Jharia for homestead land.

(3.) The defendant denied that there had been any breach of covenant or that the plaintiff was entitled to claim forfeiture of the lease and possession of the land in suit, it was pleaded that the defendant was entitled by the terms of the lease to let the land out-for building purposes and in any event the plaintiff had been aware of this for a considerable time and had waived his right to forfeiture by acceptance of rent and other acts recognizing the existence of the tenancy. The learned Subordinate Judge was of opinion that the plaintiff was not entitled to claim forfeiture of the lease, and even if there had been a breach of a covenant, the plaintiff had stood by with full knowledge-of such breach. Accordingly the learned Subordinate Judge held that the plaintiff's claim was barred by reason of estoppel, acquiescence and waiver.