MUKHAN SINGH Vs. CHANDRIKA PRASAD SINGH

JUDGEMENT

(1.) This second appeal is by defendants 1 to 3. The plaintiffs predecessor granted a permanent mukarrari to defendant 4 at an annual rent of Rs. 19. The lease contains a proviso entitling the lessor to re-enter on default of payment of rent on 30 Jeth of any year. In 1934 the lessee transferred his interest to defendants 1 to 3. He had not paid the rent for 1341 and defendants 1 to 3 defaulted in payment of the rent for 1342. The plaintiffs instituted the present suit to eject the defendants and to recover compensation for breach of the condition for payment of rent. The first Court directed defendants 1 to 3 to pay the plaintiffs Rs. 21-9-6, the amount claimed for 1342, within 15 days, and ordered that in the event of payment within that period defendants should continue to hold the property, but in the event of default in payment within that period, the plaintiffs were to be given possession. Against that decision the plaintiffs appealed and obtained an unconditional decree for ejectment. The question raised in this appeal by defendants 1 to 3 is whether Section 155, Bihar Tenancy Act, applies. The relevant words of that Section are: A suit for ejectment of a tenant, on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and where the misuse or breach is capable of remedy, requiring the tenant to remedy same, and, in any case, to pay reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with the request.

(2.) On behalf of the respondents, on the other hand, it is contended that the application of the provisions of Section 155 is excluded by Section 179 where the conditions entailing forfeiture are provided by a contract between the parties to a permanent lease. Section 179 enacts that: Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant. Reference was also made in the course of the argument to Section 178. The relevant portion of that Section is: Nothing in any contract, between a landlord and a tenant made before or after the passing of this Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act.

(3.) The learned advocate contends that by reason of the provisions of Section 178, Section 155 applies even in the ease of a permanent lease made after the passing of the Act. Reference was made to the decision in Afiladdi V/s. Satis Chandra A.I.R (1916) . Cal.722. That however was a case of a lease made prior to the passing of the Bengal Tenancy Act. A similar case was in Sri Ramchandra Naick v. Ajidhya Singh A.I.R (1935) . Pat. 508 where also the question of the application of Section 155 to a case of lease executed after the enactment of Section 179 was considered. Delivering the judgment of the Court, Dhavle J. said at p. 644: Holders of permanent mukarrari tenures were thus governed by the provisions of their leases as regards liability to ejectment for non- payment of rent among other grounds, but were nevertheless entitled, if the matter came into Court, to have 15 days grace for payment (that is to say, under Secs.78 and 52 of the Act of 1859 and 1869, respectively). The Bengal Tenancy Act seems to have left them in substantially the same position, while specially providing in Section 179 for future permanent mukarrari leases in permanently settled area that nothing in the Act shall be deemed to prevent such leases being made on any terms that may be agreed upon between the parties; that is to say, his Lordship specially left open the question whether the words "terms agreed on between the parties" in Section 179 excluded or did not exclude the operation of Section 155. In the Full Bench decision of this Court in Nawabzada Syed Moinuddin Mirza V/s. Surendra Kumar A.I.R (1934) . Pat. 153 it was held that where a permanent lease is explicit, the general provisions of law do not apply, such as, for instance, the provisions in Section 68 for the awarding of damages where rent has been withheld.