- (1.) THIS second appeal has been filed by the defendant against the appellate decree of the Divisional Commissioner. Bikaner dated 22. 8. 57 confirming the decree of the trial court as far as it related to the ejectment of the defendant from the land in dispute but modifying it in respect of the amount of mesne profits - the amount decreed by the trial court was Rs. 108/12/- and the same was reduced to Rs. 65/4/- by the first appellate court.
(2.) WE have heard the learned counsel for the parties and have examined the the record as well. To appreciate the points involved for determination in this second appeal it is essential to refer to certain facts antecedent to the institution of the present suit in point of time. Shri Lakhan Singh Subedar Major Ganga Risala, Bikaner sent an application to the Collector Churu through the Officer Commanding, Ganga Risala on 30th March, 1951 in which it was stated that Lakhan Singh owned the land in dispute - Khasra No. 41 measuring 41 bighas 18 biswas in Patta Kanwari, that the Khatedari of the said field was given to him by the settlement Commissioner, Sader, vide, his decision dated 18. 5. 45, that the field was in those days cultivated by one Akbar Khan, that Akbar Khan was requested to hand over the field to Lakhan Singh but Akbar Khan totally refused to do so, that the Rajasthan (Protection of Tenants) Ordinance was not applicable to military personnel and hence it was prayed in the application that Akbar Khan should "leave the land with retrospective effect" and possession be handed over to Lakhan Singh. This application was forwarded by the Collector, Churu on 3. 4. 51, to the Tehsildar Ratangarh for enquiry and, report. The Tehsildar forwarded the papers to the Assistant Collector, Ratangarh on 31. 5. 51 with the remarks that the application for ejectment court he heard only by the Assistant Collector. The Assistant Collector directed the issue of a notice to Akbar Khan to show cause as to why he should not be ejected from the land in dispute. At first ex parte proceedings were directed against Akbar Khan, but this order was set aside on payment of costs and Akbar Khan was allowed to participate in the proceedings. On 6. 10. 51 the case was transferred to the court of the Anti-Ejectment Officer, Churu. After recording the evidence of the parties the following order was passed on 2. 7. 52; - "counsel for the parties present. Arguments heard. Lakhan Singh has applied for ejectment of Akbar Khan from the field on the ground that he is a military personnel and hence is not governed by the provisions of the Rajasthan (Protection of Tenants) Ordinance. Akbar Khan's contention is that the land in dispute does not belong to Lakhan Singh nor he is a tenant of Lakhan Singh. Lakhan Singh was never in possession of the land. That the land was taken for kasht from Thikana Kanwari. The counsel for the parties agree that Lakhan Singh being a military personnel is not governed by the provisions of the Rajas-than (Protection of Tenants) Ordinance. This is an application for ejectment. For recovery of possession no action can be taken on such summary application. Lakhan Singh should bring regular proceedings in a competent court. The application be rejected. " On 18. 3. 53 Lakhan Singh brought this suit in the court of the Assistant Collector Ratangarh. It was averred in the plaint that the land in dispute was in the Khatedari of the plaintiff, that the plaintiff held it in muafi from Thikana Kanwari, that the plaintiff was recorded as Khatedar and the defendants as Kashtkar thereof, that the plaintiff being an employee of the military forces was not liable to the provisions of the Rajasthan (Protection of Tenants) Ordinance and hence he applied for ejectment of the defendant, that in the course of those proceedings the defendant denied the Khatedari rights of the plaintiff, that the defendant denied all rights of the plaintiff in the land, that by the adoption of this plea the defendant forfeited his tenancy rights and was reduced to the status of a rank trespasser, that the annual rent of the land is Rs. 21/12/0, that the defendant has not been paying rent since 1947 AD. and hence is liable to pay Rs. 108/12/- that the defendant was asked to vacate his possession but he refused and that a decree for ejectment and mesne profits amounting to Rs. 108/12/- be granted against him. The defendant in his written statement pleaded that he was cultivating the land since Svt. 1997, that the plaintiff had no right to get him ejected, that the defendant was regularly paying rents to Thikana Kanwari that during the last Pamayash the land was recorded as Makbooza Thikana with the defendant as its Kashtkar, that the defendant had no knowledge about the land being entered in the Khatedari of the plaintiff and that the defendant was not liable to ejectment under the provisions of the Bikaner Tenancy Act. The defendant however admitted the fact of presentation of the application presented by the plaintiff for his ejectment and the plea that was taken up in it by him. The trial court framed the following issues in the case: - 1. (a) Is the land not in the Khatedari of the plaintiff? (b) Is the plaintiff entitled to eject the defendant? 2. Is the defendant paying the land in dispute to Thikana Kanwari and if so with what effect? Is Thakur Kishore Singh a necessary party in the suit? Is the suit not within limitation? Are the court fees deficient? 3. After examining the evidence of the parties the trial court came to the Conclusion that Ex. P. 4 a certified copy of a decision of the settlement commissioner dated 12. 2. 47 was enough to show that Lakhan Singh was entered as the Khatedar of the disputed land. Akbar Khan had raised objection in that case but was unsuccessful. As regards issue No. 1 (b) the trial court held that sec. 27 and sec. 76 of the Bikaner Tenancy Act laid down that a tenant who did not have a right of occupancy and did not hold for a fixed term under a contract or decree or order of competent authority may be ejected at the end of any agricultural year. The point was raised before the trial court that after the enforcement of the Rajasthan Tenancy Act, the provisions of the Bikaner Tenancy Act ceased to have any validity. This objection was averruled on the ground that sec. 183 of the Rajasthan Tenancy Act provided for ejectment of a trespasser and that the defendant was nothing but a trespasser and hence liable to ejectment. 4. As regards issue No. 2 the trial court was of the opinion that no rents in respect of the land in dispute was paid by the defendant to the Thikana. On the basis of these findings, the plaintiffs suit was decreed by the trial court on 4. 2. 56. An appeal filed against this decision before the Commissioner who confirmed the decree of the trial court in so far as it related to the ejectment of the defendant but modified the same as regards the amount of mesne profits. A second appeal against this decision was filed before the Board which was allowed by a decision of the Board dated 13. 11. 56 and the case was remanded to the Commissioner for rehearing the appeal in the light of the observations made in the judgment of the Board. As a result of rehearing the learned Commissioner come to the same conclusion to which he had come earlier. Hence this second appeal. 5. The case for ejectment is based on the ground that the defendant-appellant had denied the respondent-plaintiffs tide and has thereby renounced his status by forfeiture. This argument is evidently based on the provisions contained in sec. 111 (g) of the Transfer of Property Act. This section deals with the determination of leases. A lease determines by efflux of time limited thereby, by the determination of the interest of the lessor in the property leased, by the merger of the interests of the lessor and the lessee in one person, by express surrender, by implied surrender and by forfeiture. The provision with regard to forfeiture runs as below: - 111 (g) by forfeiture: that is to say (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or (2) in case the lessee renounces his character as such by setting up a title in a third person, or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease: The provision with regard to notice in the section is a result of the amendment introduced in 1929 in the Act subsequently Before the amendment oral communication by the landlord that owing to default the lessee had forfeited was sufficient and no writing was necessary. But after the amendment the giving of notice prescribed by the clause is essential condition of forfeiture taking effect in law, as the act of the lessee in renouncing his character as such makes the lease voidable and not void. It is true that sec. 117 of the Transfer of Property Act clearly lays down that the provisions contained in Chapter V relating to leases of immovable property are not applicable to leases for agricultural purposes. But it has been held in some cases that provisions which are based on justice, enquity and fair play may be held applicable to agricultural leases wherever the provisions of the revenue laws are silent on the point. We have therefore to determine in the case as to whether the defendant had or had not forfeited his tenancy by denial of the respondent's title At the outset we may refer to certain rulings cited before us on behalf of the respondent. In A. I. R. 1933 Lahore 377, a suit was filed by a landlord to eject a tenant. The same was decreed in the lower appellate court. The tenant appealed from that judgment on the ground that he was not given a month's notice as stipulated in the lease deed The case was pending for over two years. Bhide J. held that under the above circumstances the tenant can have no grievance on the ground of lack of notice and that the High Court will not interfere in second appeal on the technical ground of want of notice. It was further observed in this case that a finding on the question whether there was forfeiture of the tenancy by denial of title of landlord is a finding of fact and cannot be interfered within second appeal. In that case the defendant did not make a definite statement denying the landlord's title at any particular time before the suit but the defendant had deposed that he had been living as owner in the house without payment of rents for a large number of years and on this basis it was inferred that there was a denial of the landlord's title prior to the institution of the suit. It may be pointed out that the Transfer of Property Act is not applicable to Punjab. A. I R. 1947 Madras 68 has been cited by the respondent's counsel to show that sec. 111 (g) as amended in 1929 embodies a principle of justice, equity and good conscience and must be held to govern even agricultural leases In that case the point for determination was as to whether sec. 111 (g) Transfer of Property Act necessitated the issue of a notice in writing in determining the lease and whether this provision was applicable to agricultural leases or not? As observed in that case one of the points that the courts were of called upon to consider on the wording of the section as it originally stood was whether the act to be done by the lessor to indicate his intention to determine the lease was an act which had to precede the institution of the suit or whether the launching of the suit itself could be regarded as such an act. Following the rule of English Law it was held by the Madras High Court in two cases that some act independent of the institution of the suit was necessary even with reference to a lease executed before the T. P. Act. A different view was taken by the same High Court in a subsequent case. These doubts were however set at rest by the amendment of 1929. The learned Judges observed that "the principle so embodied in the section as a result of this amendment becomes so to say a principle of justice, equity and good conscience which must be held to govern even agricultural leases though under sec. 117 of the Act they are exempt from the operation of the Chapter. " Then follow the observations which have an important bearing upon the case which have to determine. "to hold that with reference to agricultural lease previous notice determining the tenancy is not necessary to ignore the policy of the Act as disclosed by the amendment which was intended to offer all tenants greater protection than that was afforded by the decisions which interpret sec 111 (g) as it originally stood. It is reasonably clear that if notice is necessary with reference to non-agricultural lease where larger interests are at stake, generally speaking, and where in the absence of a proper notice to quit the right to the standing crops raised by the tenants might itself become a subject of dispute as between them and the land holder. . . . . Once we reach the position that sec. 111 (g) as amended embodies a principle of justice, equity and good conscience, it follows that it should apply to agricultural leases as well even more forcefully perhaps than the non-agricultural lease. " In the result the decision of the lower courts dismissing the plaintiff's suit for ejectment in the absence of a proper notice to quit was upheld. Thus this decision provides ample authority for the proposition that even if the provisions of sec. 111 (g) as amended in 1929 are held applicable to agricultural leases on the principle of equity, justice and good conscience then also the plaintiff's suit for ejectment must fail as no notice was served upon the defendant as required by this provision. In A. I R. 1928 Calcutta 312 it was observed that where the tenants deny the title of the land holder it would not be open to them to claim on a future occasion that the tenancy under the plaintiff was subsisting But in that case it was found that the defendants were not bonafide tenants of the land and had no right to remain on the lands. Hence apart from the question of forfeiture of tenancy it was held that the defendants had no tenancy which could be terminated by forfeiture. For these reasons this decision is clearly distinguishable from the present case. The contention of the respondent therefore amounts to this as the plaintiff had denied the respondent's title the tenancy determined by reason of forfeiture (sec. 111 (g) T. P. Act and the appellant was therefore liable to ejectment? Even if we assume for a moment that the case is to be determined with reference to the provisions of the T. P. Act solely, a proportion which is' far from being correct as will be shown in this judgment subsequently, it will appear that even then the decisions of the lower courts would turn out to be untenable. There is nothing in the plaint or anywhere in the evidence to show that the respondent had given a notice in writing to determine the tenancy as required by sec. 111 (g ). As would appear from the facts stated above, the summary application presented by the respondent for ejectment was rejected on 2. 7. 52. It was about six months after this order that the present suit was filed. If the respondent intended to take advantage of the provisions of sec. 111 (g) of the T. P. Act it was incumbent upon him to serve a notice in writing in that behalf as required by the section itself. Before the amed-ment of the section it may have been possible for the respondent to argue that separate notice in writing was necessary and that the institution of the suit itself would amount to the service of a notice. But the section as it stands after the 1929 amendment clearly rules out such a contention and before a plaintiff cart avail of this forfeiture penalty he should comply with the essential requirement of a notice laid down-ing the law itself. We may also refer to the provisions of sec. 27 and 76 of the Bikaner Tenancy Act which were relied upon by the trial court as supporting the plaintiff in his claim for ejectment. Both these sections provide that a tenant who had not a right of occupancy and does not hold for a fixed term under a contract or a decree or order may be ejected at the end of any agricultural year. The former section is applicable to State tenants and the latter to others. But both these sections do not lay down the procedure for ejectment. That will be found in secs 77 to 87 of the Bikaner Tenancy Act, Sec. 77 clearly lays down that a tenant shall not be ejected otherwise then in execution of a decree for ejectment except when a decree for an arrears of rent in respect of hi- tenancy has been passed against him and remains unsatisfied or where the tenant does not possess the right of occupancy and does not hold for a fixed term. Sec. 78 provides for cases where the the decree for arrears remains unsatisfied or where the tenant has no right of occupancy and does not hold for a fixed term. The landholder his to apply to a revenue officer for the service on the tenant of a notice of ejectment. Sec. 79 deals with an application for recovery of arrears. Sec. 80 lays down that a notice of ejectment shall not be served after 15th day of November in any agricultural year The notice shall inform the tenant that if he intends to contest his liability to ejectment he shall bring a suit in the revenue court within two months from the date of the service of the notice. If such a suit is filed to contest his liability to ejectment the court by which the suit is determined shall by its decree direct the ejectment of the tenant. Sec 81 deals with the power of the Revenue Minister to make rules. Sec. 82 prescribes the time for ejectment. Sec. 83 authorises the court to grant some other relief in lieu of ejectment. Sec. 84 deals with the right of a tenant regarding crops standing at the time of ejectment. Sec. 85 allows the tenant to bring a suit for recovery of possession if he has been deprived of his tenancy without his consent otherwise that in execution of a decree or in pursuance of an order under sec. 79 or 80. Sec. 86 bars the jurisdiction of civil courts. Sec. 87 authorises the His Highness' Government to alter the dates referred to in the previous sections. Thus an examination of these section shows that the Bikaner Tenancy Act provides a rigid procedure of ejectment of tenants and further lays down that no ejectment was to take place except in accordance with the provisions of this Act. It would thus appear that the respondent was bound to apply for issue of no ejectment notice under sec. 80 of the Bikaner Tenancy Act, which would have allowed a two months' period to the appellant to contest his liability to ejectment and the procedure prescribed in that behalf would then have been followed in all its details. Instead of complying with this mandatory provision of law, the respondent put up a summary application requesting the Collector to eject the applicant. As a matter of fact this summary application should have been rejected out right. Nevertheless on 2. 7. 52 it did meet the fate which it deserved. The Assistant Collector rightly came to the conclusion that a legal procedure was prescribed for seeking ejectment of a tenant and that the same deserved to be followed even by a landholder who was a military personnel and hence he directed accordingly. The lower court's reference to secs. 27 and 76 alone is inadequate and is likely to present an erroneous picture unless the provision contained in secs. 77 to 87 are also examined simultaneously. Sec 27 and 77 create a liability for ejectment. But the procedure for enforcing that liability and effecting actual ejectment of the tenant is contained in the subsequent section and a landholder seeking enforcement of the tenants liability to ejectment is bound to resort to this and this procedure alone. In the absence of such a resort it cannot be held that the landholder had acquired a right to eject his tenant. We have referred to provisions of the Bikaner Tenancy Act not because they would govern the present case but because they were not appreciated by the lower courts. This is however mostly of an academic importance now. The Rajas-than Tenancy Act was enforced on 15-10 55, and the suit was pending before the trial court on that date. As laid down in sec. 206 (1) of the Act all suits, cases, appeals, references, ect. pending before a revenue court on the inforcement of the Act shall be deemed to have commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. There can thus be no doubt on the point that the legislature intended to apply the provisions of this Act to pending cases as well. Sec. 161 of the Act clearly lays down that after the enforcement of the Act no tenant shall be liable to ejectment from his holding otherwise that in accordance with the provisions of this Act. The term tenant as defined in sec. 5 (43) of the Rajasthan Tenancy Act includes a sub-tenant as well. The provisions of ejectment are contained in Chapter XI of the Act. Put briefly a tenant may be ejected in execution of a decree for arrears of rent under sec. 174, for illegal transfer or sub-letting under sec. 175, for a detrimental act or breach of condition under sec. 177. A tenant of Khudkasht land, a Gair Khatedar tenant or sub-tenant may be ejected under sec. 180 which lays down additional provisions for the ejectment of such persons. There is no provision in the Act for the ejectment of a tenant or subtenant on the ground of determination of lease by forfeiture. If a sub-tenant is to be ejected then action con be taken against him only if the case is covered by secs. 174, 175, 177 or 180 of the Act. Any ground which may have been a valid ground of ejectment under the B. T. Act or under any other Act in force in any part of the State cannot be regarded as a valid ground effect the under the Tenancy Act if it is not to be found in any of the sections referred to above. The ground on which the respondent based his claim is such a ground and hence after the enforcement of the Tenancy Act is cannot be held to be a valid ground for decreeing ejectment agonist the sub-tenant. If any authority be needed for this view it may be found in the Indian Decisions Vol. X 1920 Calcutta 101 and Vol. X VII I L R. Calcutta series page 196 To conclude therefore, we hold that at the time of the institution of the suit also the claim was bad in as much as the respondent had not complied with the mandatory provisions of law regarding determination of lease by serving a notice in writing as laid down in sec. 111 (g) of the T. P. Act. After the enforcement of the Rajasthan Tenancy Act a claim for ejectment to be acted upon by a revenue court will have to be under the aforesaid section of the Rajasthan Tenancy Act. The present claim is not governed by any of these sections. We therefore, allow this appeal, set aside the decrees of the lower courts and direct that the suit filed for ejectment shall stand rejected throughout. It shall however be open to the respondent to seek such remedy as may be available to him under the provisions of the Rajasthan Tenancy Act. The parties shall bear their own costs throughout. . ;