PARAMESHRI Vs. VITTAPPA SHANBHAGA

JUDGEMENT

(1.) The plaintiffs (respondents) sue to evict the defendants (appellants) from the holding mentioned in the plaint on the ground that the permanent lease (mulgeni lease), dated 24th April 1862, under which defendants claim to hold the property, has become void by, reason of its absolute assignment to them in or about 1894, by one Seshappayya, who in 1890 became the assignee of the lease from, the original lessee Yellappa Setti, and that by reason of such assignments in favour of the defendants there has been a forfeiture of the lease and the plaintiffs are entitled to re-enter. It was stipulated in the counterpart of the lease, Exhibit A, that the lessee "had no right to alienate the holding to anybody in any manner whatever" and that in the event of his "not requiring the land," he would sell the improvements, which he might have made upon the holding by that time, to the lessor alone, for a price that might be fixed by four respectable persons and that he would not sell the same to any one else. The construction placed By the Subordinate Judge upon the lessee's stipulation that he will not sell the same to any other person, that it refers to the land itself and not simply to the improvements is clearly erroneous and the respondent's pleader is unable to support such a construction.

(2.) The District Munsif held that there was no forfeiture of the lease by reason of the alienation and dismissed the plaintiffs suit so far as it sought to recover possession of the holding. But the Subordinate Judge on appeal differed from the District Munsif and gave a decree in favour of the plaintiffs for possession of the land on the ground that it was not necessary that the right of re-entry should be provided for in express terms, and that inasmuch as under the terms of the lease, the lessee had no right to alienate and if he did not want the land, he was to sell the same to the lessor with improvements, if any, effected by him, it followed that by reason of the alienation made in favour of the defendants, "the lessor was entitled to have the sale set aside." As already stated, the Subordinate Judge misconstrued the lease in holding that the lessee agreed to sell his interest in the land to the lessor.

(3.) The result of merely setting aside the sale would only be to restore the permanent lease- hold to the defendants assignor and that would not entitle the plaintiffs to recover possession of the holding. The Subordinate Judge must be understood to mean that the plaintiffs are entitled to set aside the lease.