MUKHAN SINGH Vs. BABU CHANDRIKA PRASAD SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment of Agarwala J. in a second appeal arising out of a suit in ejectment. It appears that on 17 November 1912, the plaintiffs predecessor-in-in-terest granted a permanent mukarrari lease to defendant 4 at an annual rent of Rs. 19 in which there was a clause to the following effect: If any of the fixed Instalments (of rent) remain unpaid, the said proprietors (i.e. the lessor) and their heirs and representatives shall be competent to cancel this patta on their own authority and bring the mukarrari property into their own direct possession or to settle it with others, to which no objection by me or my heirs and representatives shall be entertained.

(2.) On 29 August 1934, defendant 4 transferred the mukarrari land to defendants 1 to 3, and as neither these defendants nor defendant 4 paid the rent due for the year 1341 and 1342 Fasli to the plaintiffs, the latter brought in 1935 the present suit for the ejectment of defendants 1 to 3 on the ground that the lease had been forfeited. They also claimed compensation for use and occupation of the land by the defendants subsequent to the date of the alleged forfeiture. The trial Court passed a decree in the following terms: The suit be decreed on contest with costs against defendants 1 to 3 and ex parte against defendant i. Defendants 1 to 3 are directed to pay to the plaintiffs the sum of Rs. 21-9-6 the amount claimed by them in this suit, as compensation and damages for 1312 P, along with full costs of this suit within 15 days from this date. In case the money is paid to the plaintiff or is deposited in Court within the aforesaid period, the lessee shall hold the property leased, as if the forfeiture had not occurred, but in case the order is not complied with, the plaintiffs will be entitled to eject the defendants from the holding and recover possession thereof. Defendant 4 will be liable for payment of Rs. 21-9-6 to the plaintiff on account of compensation and damages for 1341 F. Pleader's fee at 8 per cent, Future interest at 6 per cent. The plaintiffs appealed from the decree of the trial Court and the lower Appellate Court, while maintaining the decree for compensation, gave them an unconditional decree for ejectment. The judgment of the lower Appellate Court was upheld on second appeal and hence this appeal under the Letters Patent. Section 179, Bihar Tenancy Act, provides 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.

(3.) This Section was construed by a Full Bench of this Court in Moinuddin Mirza v. Sourendra Kumar Roy AIR (1934) Pat 158 and the view expressed in that case was as follows: The true construction of Section 179 is that it is a permission to landlords and tenants, in the Case of a creation of a permanent tenure in a permanently settled area, to contract out of the Act and that whereas the general law created by the Bengal Tenancy Act as applicable to the relationship of landlord and tenant will apply to a permanent mukarrari lease the parties are at liberty to make a specific provision for the elimination of such terms as may be imposed by the Act as they may select to eliminate. The same view has been expressed by this Bench in Muhammad Hasan V/s. Baidyanath Sahay Reported in (1940) 27 AIR Pat 140. In that case it was contended that there can be no ejectment for non-payment of rent under the Bihar Tenancy Act by reason of Secs.10, 65 and 178, Sub- section (1), Clause (c), but this contention was negatived and my Lord the Chief Justice pointed out in his judgment that Section 179 is by its terms, an exception to the law as laid down in the earlier Secs.and therefore those Secs.of the Act would not prevent the parties agreeing to whatever terms they thought proper. Now, the point raised in this appeal is not that the plaintiffs cannot claim ejectment by reason of any specific provisions of the Bihar Tenancy Act.