K.S. Venkatarama Iyer and Others vs Ponnuswami Padayachi and Others

Curgenven, J.—(His Lordship remanded the appeal twice for findings on the question of title to the property and on Issues 4, 4-a and 5 and

on receipt of findings from the lower appellate Court delivered the following judgment on the question of limitation). I have now to dispose of the

case as it relates to Item 1. The finding is that the plaintiff has title to this item and that the defendants are his purakkudi tenants. This relationship is

not disputed before me. The question of limitation is however raised. In the trial Court the suit was found to be in time on the ground that time

began to run from the date of the plaintiff''s notice (Ex. J-1). It is argued before me that there is evidence to show that the defendants ceased to

render service some years before that notice was issued, plaintiff 1 himself having given evidence that they stopped doing service four or five years

previously, which would take us back to about the year 1907. If the starting point for limitation was the cessation of service undoubtedly the suit

would not, be within time. The article applicable is Article 143, Lim. Act, providing for reentry by reason of any forfeiture or breach of a condition,

and the time, 12 years, runs from the time when the forfeiture is incurred or the condition is broken. It has been suggested that the actual neglect or

refusal to serve automatically entails the forfeiture of the holding, and I have been referred to Nadarsa Rowthen Vs. Amirtham and Others, , where

the incidents of this particular tenure have been investigated and reported upon by the District Judge of Tanjore.

It is quite true that he states that an incident of the Kasavargam tenancy is that on the tenant refusing to render service to his landlord as usual the

latter is entitled to eject him forthwith. That presumably means at least that he can sue to eject him without first giving him a notice such as is

required by Section 111, T.P. Act. The alleged authority of Ramasami Chettiar v. Ambalagaran 1915 Mad. 1135, cited before me turns out to be

no authority at all for the proposition that refusal or neglect to perform service determines the tenancy as the headnote would state. A perusal of the

judgment shows that this matter among others was merely referred to the lower Court for a finding. On the other hand, there is an unreported case,

S.A. Nos. 796 and 797 of 1908, (Ex. N in this record), in which a Bench of this Court has approved a finding of the District Judge of Tanjore in

which the following passage occurs:

The mere cessation of services would not determine the tenancy, sea the case reported in Narayanaswami Ayyar v. Vathiar Kama Ayyar (1910)

M.W.N. 472. In the absence of any act on the part of the plaintiff showing his intention to determine the tenancy there could be no forfeiture and

the defendant''s continued occupation of the manaikats must be regarded as permissive.

That this is the correct view of the law seems to me to be confirmed by the decision in Srinivasa Ayyar v. Muthuswami Pillai (1901) 24 Mad.

246, and the terms of Section 111(e), T.P. Act. It is true that the Act does not apply directly to this case, but there can be no doubt that this

provision in it was intended to reproduce the general law upon the subject of forfeiture and it provides that the lessor has to give notice to the

lessee of his intention to determine the lease. It seems to me clear therefore that forfeiture will not be produced merely by the unilateral act of

ceasing to comply with the conditions upon which the property is held but must involve also some expression of intention to enforce the forfeiture

on the part of the lessor. In the present case, whether we take the plaintiff''s notice, Ex. J-1 or the defendant''s reply repudiating his title, the suit

will equally be within time and I conclude therefore that the issue of limitation must be decided in the plaintiff''s favour.

The only other point is as regards the compensation for that portion of the defendant''s house which lies within item 1. No compensation was

claimed in the written statement and the order of the District Munsif in decreeing the claim was that the super-structure should be removed. The

house, it is said, stands partly on the one item and partly on the other, and I can see no alternative to directing that that portion of it which stands

upon item 1 should be removed. The defendants ask for time within which to effect this. The decree will provide that they must do so within two

months. Further than this it is not now possible to go in according relief in respect of this building. The result is that the second appeal is allowed

with reference to item 1 and the decree of the District Munsif restored with the modification allowing time for the removal of the building. As the

parties have in approximately equal measure succeeded and failed they will pay their own costs throughout.