BISHNATH SINGH Vs. BALWANT RAO NAIK KALIA

JUDGEMENT

(1.) The appellants are the persons now entitled to the interest of the lessee under a perpetual lease dated 18 December 1875 granted by the respondents' predecessor, who was the zamnindar, in respect of the entire village of Bhatoli in the District of Mirzapur. The registered kabuliyat is in evidence. It describes the lease as a "theka" and the lessee as "thekadar" and provides that the thekadar shall pay annually a rent of Rs.111 to the lessor and the Government revenue and cesses - Rs. 235- to the Government. The rent is expressed to be payable by equal instalments of Rs. 27-12-0 on 15 November, 15 January, 1 May and 15 June, in each year - dates which are identical or almost identical with those fixed for the "kists" of Government revenue. There was a forfeiture clause in the following terms: (4) I shall pay the Government revenue with cesses, etc., instalment after installment, obtain receipts signed by the presiding officer and keep the same with me. If I fail to pay any instalment, and the proprietor of the mahal has to pay it, the latter will be authorized to pay it himself, and immediately get the theka cancelled and enter in possession of the entire leased mauza and settle it in any way he likes.

(2.) The thekadars having made default in respect of substantial sums of revenue in 1927, a suit against them was brought in 1928 by the zamindars to forfeit the lease. It was finally disposed of on 10 July 1930 by the High Court at Allahabad by whose decree relief against forfeiture was allowed on the condition that Rs.1821 were paid into Court not later than 10 October 1930. The learned Judges in their judgment gave to the thekadars "a clear intimation that they should not anticipate any further concession to be made to them at any future time if they made default." On the date of that judgment, 10 July 1930 the May and June revenue kists of 1930 (Fasli 1337) had not been paid and it is not now disputed that after 9 June 1930 the lessees were in default as regards the May instalment of revenue, and that there was a breach of covenant under the lease in respect thereof. But the Assistant Collector who tried this case at first instance was of opinion that there could be no default in respect of the June kist unless it remained unpaid up to 30th September - an event which did not happen. On 27 August 1930, a warrant of arrest was issued against Murat Narayan Singh, one of the thekadars, hut when service was attempted on 29 August and 1 September, he was not found at home and service was not effected. On 16 September, a certificate was issued by the Collector of Mirzapur to the Collector of Benares in whose district the zamindars reside requiring him to recover from Ram Chandra Naik Kaliya, one of the proprietors, the sum of Rs.167-9-0, being the amount of bo May, a June, kists, together with Rs.1-8-0 for process fee. This sum was accordingly paid by this proprietor on the next day. In respect of the May kist, the right to forfeit the lease of 18 December 1875, was thus complete on 17 September 1930 according to its terms. On 19 September, the lessees in respect of the same two kists sent to the tahsil of Mirzapur a money order for Rs.168-1-0 which was received there on 23 September, and a receipt issued for it on that date. On 16 November 1930, the suit which is how before the board was brought by the zamindars against the thekadars for ejectment on the basis of a forfeiture of the lease by reason of non-payment of the May a June, kists. The Assistant Collector dismissed the suit holding that there was no breach by the defendants as contemplated in the lease - as regards the June kist because it was not overdue till 30 September, and as regards the May kist because the plaintiffs though they paid it themselves on 16 September did not do so before 9 June. Confining themselves to the May kist their Lordships are of opinion that there is no ground for the view that the condition of forfeiture stipulated by the lease requires that the lessees should have paid before 9 June. This defence has not indeed been included among the appellants' reasons in their case nor has it been supported in argument. Nothing whatever turns upon the unserved warrant of 27 August. Nor is it necessary to determine the date at which default was made in respect of the June kist, though it is somewhat disconcerting to find that a warrant of arrest and a certificate under the Rent Recovery Act of 1890 were issued in respect of an instalment as to which an Assistant Collector has held that there was no default. In the High Court the learned Judges rightly considered that the lessees had incurred a forfeiture and rightly rejected an argument that the High Court's judgment in the previous case bound them to hold that they could grant relief against the forfeiture. Without deciding whether the case comes under the Transfer of Property Act or the Agra Tenancy Act the learned Judges say: If the case is governed by the present Tenancy Act then under S. 205 the relief can be granted only in case of non-payment of rent. We do not see how the forfeiture which has occurred can be prevented.

(3.) On this view, their decree of 14 October 1936 directed that the thekadars be ejected. Before the board the appellants have maintained that the Agra Tenancy Act (U. P. Act 3 of 1926) applies to this case and their Lordships will assume that this is so. The relevant provisions of the Act are as follows: 3-(3) When used with reference to a thekadar rent means the amount payable by the thekadar to his lessor under the terms of the theka. S. 84-(1) A tenant, not being a permanent tenure holder, or a fixed rate tenant, shall be liable to ejectment from his holding on the suit of the landholder- (a) on the ground of any act or omission detrimental to the land in that holding, or inconsistent with the purpose for which it was let; (b) on the ground that he or any person holding from him has broken a condition, not inconsistent with the provisions of this Act, on breach of which he is by special contract with his land-holder liable to be ejected : Section 85. - (1)A decree for ejectment under S. 84 may direct the ejectment of the tenant either from the holding or from such portion thereof as the Court, having regard to all the circumstances of the case, may direct. (2) Such decree may further direct that if the tenant repairs the damage, or pays such compensation as the Court thinks fit within one month from the date of the decree, or such further time as the Court may, for reasons to be recorded, allow, the decree shall not be executed except in respect of costs. Section 204-No thekadar shall be ejected otherwise than in accordance with the provisions of this Act. Section 205. - (1) A thekadar shall be liable to ejectment on one or more of the following grounds namely: (a) on the ground that a decree against him for arrears of rent remains unsatisfied; (b) on the ground of any act or omission prejudicial to the rights of the landlord or inconsistent with the purpose of the theka ; (c) on the ground that he, or any such sub-thekadar under him, has broken a condition, on breach of which he is by the terms of his theka liable to be ejected. (2) Notwithstanding anything in Cls. (b) and (c) of sub-s. (1) no thekadar shall be ejected for non-payment of rent otherwise than in accordance with cl.(a) of that sub-section. Section 209.-The provisions of S. 85 with regard to a tenant found liable to ejectment on a ground specified in cls. (a) and (b) of S. 84 shall apply in the case of a thekadar found liable to ejectment on a ground specified in cl.(b) or cl.(c) of S. 205.