KHETRA NATH BAKULY Vs. BAHARALI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land in the following circumstances : In 1876 the plaintiffs predecessors granted a permanent heritable lease to one Beni Madhab in respect of land purported to be used for habitation. After Beni Madhab's death the land was enjoyed by his widow, Matangini. In 1913 Matangini transferred the leasehold right in the land to one Ambika. In 1918 Ambika's son Dhirendra transferred it to the present defendant. In the lease granted to Beni Madhab there was a condition or a covenant that the lessee should not be entitled to transfer the lease. The plaintiffs have accordingly brought the suit on the allegation that the covenant in the lease was broken and that the defendant was a trespasser on the land. The trial Court gave a decree to the plaintiffs but the lower appellate Court has dismissed the plaintiffs suit mainly on the ground of estoppel and waiver. The learned Subordinate Judge finds that Ambika, the transferee from Matangini was recognized by the landlord who received rent from him. He accordingly thinks that as the plaintiffs waived the right under the lease of objecting to the transfer by the lessee, subsequent transferees of the interest were led to believe that the plaintiffs did not intend to enforce the covenant or that the lease was transferable by custom. The plaintiffs appeal ; and it is-argued on their behalf that the lease granted in favour of Beni Madhab continued operative in the hands of his widow and of Ambika whom they recognized as their tenant till Dhirendra committed breach of covenant by selling the land to the defendant. The defendant accordingly is liable to be ejected. The case in the plaint, however, is differently made. There it was said that the holding was abandoned on the death of Beni Madhab's widow Matangini and that Dhirendra son of Ambika not having been an heir of Beni Madhab had no interest in the land to pass to the defendant and the cause of action was based upon these allegations. These allegations have not been accepted by the Courts below since they concurred in finding that the landlord accepted Matangini's transferee, Ambika as his ten ant. The plaintiffs suit was accordingly misconceived and he cannot get the relief in the suit as it was brought.

(2.) Nextly, the plaintiff's contention that the lease in favour of Beni Madhab continued operative with all its conditions and the right to recover possession accrued on Dhirendra's transferring it to the defendant, cannot also be supported. According to the facts mentioned by the plaintiffs in their plaint and accepted by the Courts below the lease came to an, end as soon as Matangini committed the breach of the covenant against alienation. All the subsequent holders of the land were either plaintiffs tenants being recognized by them or trespassers. Ambika was recognized by the plaintiffs. He purchased nothing according to the plaintiffs case from Matangini because she had no right to sell. Whatever status he had in respect to the land was derived from the recognition by the plaintiffs. The plaintiffs, therefore, cannot sue the defendants for ejectment on the ground of violation of the covenant against alienation.

(3.) Then again in the lease in favour of Beni Madhab the lessor did not reserve the right of re- entry on breach of a covenant. It has been held in a number of cases that where the lessor does not reserve to himself the right of re-entry the covenant against alienation is not enforcible and the lessor cannot sue the holder of the leasehold for recovery of possession on the breach of the condition : Jogesh Chandra Roy V/s. Mokbul Ali Chowdhury A.I.R. 1921 Cal. 474, Mohammad Reajuddin Ahmad V/s. Basuda Sundari Dasi [1916] 28 C.L.J. 278, Mahananda Roy V/s. Saratmani Debi [1911] 14 C.L.J. 585 and Nil Madhab Sikdar V/s. Narattam Sikdar [1890] 17 Cal. 826. The plaintiffs cannot in this case rely for their right to re-entry on the lease in favour of Bani Madhab. In my opinion the Subordinate Judge is Tight in holding that the plaintiffs by their conduct created an impression on the mind of the defendant that they would mot enforce the condition against alienation by accepting Ambika the transferee from Matangini as tenant : Doe V/s. Rowe [1826] 2 C. & P. 246 ; Doe V/s. Suttorr [1841] 9 C. & P. 706.