CHAGAN CHUNILAL Vs. SUKA BARKU

JUDGEMENT

(1.) The appellant brought the suit, out of which this second appeal arises, to recover possession of the two lands in dispute under the terms of a contract for sale in writing between him and the respondent. By that contract, entered into in 1901, the appellant agreed to sell to the respondent the lands for Rs. 1,000. The respondent was put in possession thereof on the day of the contract. The material stipulations in the contract were these:- (1) that the purchase money should be paid annually by instalments of Rs. 100 each on a certain date fixed in the contract; (2) that in case of default in the payment of the first instalment on the due date, the appellant should be entitled to recover it as rent and sue for possession of the lands ; (3) that, in case of default in the payment of any three or four subsequent instalments on the due dates, the appellant should be entitled to recover possession of the lands and claim the unpaid instalments as rent; (4) that on payment of all the instalments, the title to the lands should be treated as having passed to the respondent by sale, but that in the meantime the appellant should continue owner thereof.

(2.) The appellant alleged in his plaint that there had been default by the respondent in the payment of the instalments of 1904,1905 and 1906. He, therefore, sued for possession on the ground that there had been a breach of contract by the respondent and that the latter had by non-payment of instalments put an end to the contract.

(3.) The lower appellate Court, agreeing in that respect with the Court of first instance, has found upon the evidence that there was "distinct waiver" by the appellant "as regards two of the instalments and most probably as regards the third."the appellant bases his claim for possession on three subsequent defaults. But the lower appellate Court has held that he is not entitled to it, because, after he had dealt with the respondent in respect of the first three instalments in such a manner as to lead the latter to believe that he would not insist on the payment of the instalments on the due dates, and that "he had no intention of carrying out the forfeiture clauses of the contract," "it was incumbent on him" to give the respondent "notice that in future he intended to enforce the terms of the contract."