SHIAM BEHARI LAL GOUR Vs. MADAN SINGH

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit for possession of a plot of land and for Rs. 30, on account of compensation. The plot is in the city of Bulandshahr. Mt. Nasiban was admittedly its original owner. On 4 March 1903, she executed a lease in" favour of one Mr. Kichak. Kichak agreed to pay an annual rent of Rs. 5-8-0. He built a kachcha house on this land and on 12 February 1913, he sold his rights to Pt. Sohan Lal Gaur. At the time of the sale, the house was in a dilapidated condition and what passed to Pt. Sohan Lal consisted only of its materials. Pt. Sohan Lal for some time continued to pay rent to Mt. Nasiban, till she died in 1919. Her death led to a regular scramble for her estate. On the one side was her brother, Karim Bux and, on the other, her nephew, Ismail, the son of a predeceased brother. Ismail came forward with a will by Nasiban in his favour, which Karim Bux repudiated. Ismail transferred his rights to Madan Singh, the plaintiff-respondent, and to the D. A. V. High School. There was a subsequent arrangement between them and, as a result of it, two-thirds were assigned to Madan Singh and one-third fell to the D. A. V. High School Committee. The chapter of troubles opened only with the property passing into the hands of the transferees. In 1930, two suits were instituted by Madan Singh and the D. A. V. High School. One was Suit No. 271 of 1930 and the other was 300 of 1930. The former was for demolition of certain constructions over an adjacent plot and the latter for recovery of the rent of the plot, which is now in controversy. Both suits were decreed. We do not know the subsequent history of the suit for recovery of rent, but the other suit was fought up to the High Court and was finally decided in February 1935, by a learned single Judge of this Court. On 21 September 1931, Madan Singh and the D. A. V. High School served a notice on Pt. Sohan Lal terminating the lease. To this notice he never replied. He, however, acquired the rights of the D. A. V. High School. In 1934, Sohan Lal died and the present suit against his sons, for the reliefs mentioned above, was instituted on 12 May 1938.

(2.) This was the story with which the plaintiff came to Court and he founded his cause of action on the denial of title made by Pt. Sohan Lal on various occasions, but principally in the suit for the removal of the encroachments brought against him in 1930. The defence was that there was no such denial; nor did Sohan Lal set up a title in any third person. The plea of defective notice was also taken. Finally, it was pleaded that the defendants father had made a substantial construction worth Rs. 40,000 on the land in dispute and the plaintiff was not entitled to an unconditional decree. The learned Munsif held that there was no denial of title. With certain other findings mostly in favour of the defendants, with which we are not concerned at this stage, he dismissed the plaintiff's suit. This decision was challenged in appeal by the plaintiff. The learned Additional Civil Judge by his judgment of 16 April 1941, while rejecting the plaintiff's prayers for possession and compensation, granted him a declaration in these terms: The suit is decreed with costs for a declaration that the lease rights of the defendants first party in the leased land have been determined and the plaintiff is entitled to possession thereof on partition.

(3.) The point, therefore, which falls for consideration is whether the plaintiff is, in the events which have happened, entitled to this declaration. And its determination will involve the question whether there has been any forfeiture. The question of forfeiture is generally not free from difficulty, but the principle must be borne in mind that the law leans against forfeiture. A reading of the various sections will clearly bring out the point. Section 112, T.P. Act, runs thus: A forfeiture under Section 111...is waived...or by any other act. Section 113 is in these terms: A notice given under Section 111, Clause (h), is waived, with the express or implied consent