Shiva Prasad Singh vs Mandira Kumari Debi

Harries, J.—This is a first appeal from a decree of the learned Subordinate Judge of Dhanbad dismissing the plaintiff''s claim for possession of certain property. On Baisakh 20, 1325 B.S., the defendant''s husband took a lease of certain land described in schedule (ka) of the plaint situate in the town of Jharia from the plaintiff at an annual rental of Rs. 31-8-9. This lease was in due course registered. It was a term of the said lease that the defendant''s husband would not alter the condition of the leasehold land in any way or render it unfit for cultivation, and if he did so, the plaintiff would be entitled to evict him from possession.

According to the plaintiff, the defendant''s husband did not cultivate this land but, on the contrary, let it out for1 building purposes. In Magh 1333 B.S. the defendant''s husband died, and the defendant became entitled to his property. The plaintiff alleged in his plaint that the defendant''s husband had no right under the lease to let the land to tenants for building purposes and as there had been a breach of the condition in the lease the plaintiff was entitled to treat the lease as forfeited and accordingly to recover possession of the same. It is expressly pleaded in the plaint that the plaintiff gave notice to the defendant on Agrahayan 6, 1341 B.S. to give up possession of the property with effect from Pous 1, 1341, B.S. In spite of the notice the defendant had refused to relinquish possession of the property, hence the present suit. There was an alternative claim that if the plaintiff was declared not-entitled to obtain khas possession of the property, he should be given a decree for arrears of rent at the rate of Rs. 6 per katha which was the prevailing rate in Jharia for homestead land.

The defendant denied that there had been any breach of covenant or that the plaintiff was entitled to claim forfeiture of the lease and possession of the land in suit, it was pleaded that the defendant was entitled by the terms of the lease to let the land out-for'' building purposes and in any event the plaintiff had been aware of this for a considerable time and had waived his right to forfeiture by acceptance of rent and other acts recognizing the existence of the tenancy. The learned Subordinate Judge was of opinion that the plaintiff was not entitled to claim forfeiture of the lease, and even if there had been a breach of a covenant, the plaintiff had stood by with full knowledge-of such breach. Accordingly the learned Subordinate Judge held that the plaintiff''s claim was barred by reason of estoppel, acquiescence and waiver.

In my view the decision of the learned Subordinate Judge cannot be challenged. It is conceded that after the plaintiff had full knowledge of the breach of the covenant, if any, he gave the defendant notice to quit the land and thus-recognized the existence of the tenancy. Further, Mr. P. B* Das had to admit in the course of argument that rent had been accepted, and this Was done with full know-ledge of the breaches, if any, of the covenants of the lease. Further, in the plaint the'' plaintiff stated that if he was not given-possession of the property, he was willing to allow the defendant to remain on the land at a rental of Rs. 2022 per annum which is at the rate of Rs. 6 per katha.

Courts of law in England and in India always lean against forfeitures; therefore whenever a landlord means to take advantage of any breach of covenant or condition so that it should operate as a forfeiture of the lease, he must take care not to do anything which may be deemed after knowledgment of the continuance of the tenancy, and so operate as a waiver of the forfeiture. Merely lying by and witnessing the breach is no waiver; some positive act must be done. The general rule is, that if a lessor or other person legally entitled to the reversion, knowing that a forfeiture has been incurred by the breach of any covenant or condition, does any act whereby he a knowledge�s the continuance of the tenancy at a later period, he thereby waives such forfeiture. Acceptance of rent accruing due after a forfeiture amounts to a waiver, and the giving of a notice to quit premises also amounts to a waiver, in this case, because the giving of the notice recognized the continuance of a tenancy.

The whole pleading in this case amounts to an acknowledgment of the continuance of the tenancy until Pous 1, 1341 B.S., when the notice to quit expired. This aspect of the case does not appear to have been appreciated by the Court below; but in argument Mr. Das had to admit that there was no answer to this point. In my view if there had been a breach of covenant in this case, the plaintiff after knowledge of the same recognized the existence of the tenancy and thereby waived any right which he might have had to forfeiture. In this view of the case, it is unnecessary to consider the difficult points arising as to whether there had or had not been a breach of covenant and whether such entitled the plaintiff to claim forfeiture of the lease. The result therefore is that this appeal fails and I would accordingly dismiss it with costs.

Manohar Lall, J.

I agree.