Karnataka High Court
M/S Viswagandhi Enterprises vs Sri V R Inamdhar on 9 October, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9th DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
REGULAR FIRST APPEAL NO.953 OF 2012
BETWEEN
M/S VISWAGANDHI ENTERPRISES
NO.E/7, KRUMBIGAL ROAD CROSS
BANGALORE-560004.
REPTD. BY ITS PARTNER
SRI B.A.VENKATESH ... APPELLANT
(BY SRI N.J.RAMESH, ADV.,)
AND
1.SRI V.R.INAMDHAR
SON OF LATE K.RAMACHANDRA
AGED ABOUT 65 YEARS
2.SRI R.BHARATH
SON OF LATE K.RAMACHANDRA
AGED ABOUT 63 YEARS
3.SRI R.DHRUVA RAO
SON OF LATE K.RAMACHANDRA
AGED ABOUT 60 YEARS
4.SRI R.MADHUSUDAN
SON OF LATE K.RAMACHANDRA
AGED ABOUT 58 YEARS
5.SMT SHEETHA BAI
WIFE OF LATE K.RAMACHANDRA
AGED ABOUT 80 YEARS
2
ALL ARE RESIDING AT NO.74
34TH CROSS, 4TH T BLOCK
JAYANAGAR
BANGALORE-560041. ... RESPONDENTS
(BY SRI SIDDAGANGAIAH, ADV., FOR
M/S RAMESH ANANTHA ASSOCIATES
ADV., FOR C/R1 TO R5)
****
THIS RFA FILED U/S 96, OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 24.03.2012 PASSED
IN O.S.3096/2001 ON THE FILE OF THE I-ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE,
DECREEING THE SUIT FOR THE EJECTMENT.
THIS APPEAL COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Defendant is the appellant challenging the judgment passed by the court below in O.S.No.3096/2001 dated 24/03/2012. Respondent plaintiff filed suit for ejection from the schedule property. Subject matter between the parties and as per the agreement entered on 24/07/1979, the defendant appellant herein took possession of the schedule property from the plaintiff under the Registered Lease Deed for a period of 35 years. The terms and conditions between the parties are set out at 3 clause no.6, 8 and 12. As per clause 6, the appellant defendant has to pay ground floor rent and after putting up first floor the nominal rent to be paid to the plaintiff as per the clause 6 of the deed. Defendant has to put up five storeyed building within a time stipulated and they have to handover all the possession after the completion of the said period. As per clause 12 of the deed, the lease of the schedule property between the parties will expire by end of 35 years. The suit filed by the plaintiff respondent herein was to the effect that as per the clause 8 of the lease deed they are supposed to complete five floors within a period of two years but they have not put up the entire structure. Accordingly, the defendant appellant herein committed a breach of terms. Hence, the violation of the lease deed is cause of action.
2. The learned counsel for the appellant defendant submits that an error has been committed by the court below in decreeing the suit by referring clause 6 of the lease deed and the error was, no issue has been framed pertaining to clause 6 and further error is that 4 there is no pleadings in the plaint and in the absence of any pleadings it is uncommon for the court to frame issues. Under these circumstances, without pleadings, without issues suit has been decreed which is an error committed by the court below.
3. Clause 6(b) has been referred by the court below for the purpose of cause of action, if that is taken into account, after the completion of two years from the date of lease deed and thereafter under Article 66 of the Limitation Act, the suit has to be filed within 12 years from the date of cause of action. Lease deed is entered in 1979 for a period of 35 years, 35 years would be ending by 2014. If clause 6 is cause of action then for the purpose of Article 66 of the Limitation Act, the suit has to be filed within 12 years from the date of cause of action. 12 years would complete by 1991 whereas suit has been filed in 2003. The court has committed an error in decreeing the suit on the basis of clause 6 of the lease deed. Without examining the cause of action, pleadings, issues and limitation judgment has been 5 passed hence, the judgment of the Trial Court is liable to be set aside.
4. Clause 8 of the lease deed which contemplates that the defendant appellant has to handover the schedule property after completion of 35 years within said period they should put up five floors, for the completion of fifth floor still defendant has got 8 months from today. However, the plaintiff respondent kept on disturbing the appellant herein in filing the suit thereafter against the said judgment the appellant preferred MFA before this court and against the said judgment they went to Supreme Court, which caused loss to the appellant. Under these circumstances, the judgment of the Trial Court is an error and to be set aside.
5. In order to substantiate the case of the defendant they examined DW1, one of the partner of the company and documents have been marked as Ex.D1 to D11.
66. The learned counsel for the plaintiff and respondent submitted to dismiss this appeal. There is a clause in the lease deed clause 6(b) which contemplates completion of five floors within two years even after 34 years fifth floor has not been put up. The appellant has not paid the tax to the corporation which is about Rs.8 lakhs and his attempt looks as if he is planning to vacate even without completing five floors and also it appears he will not pay the tax to the corporation also.
Under these circumstances equity of law does not favour the defendant. For the purpose of limitation, the learned counsel submits that cause of action is a continuous cause of action and the completion of fifth floor is not over. Clause 6 (a) to (c) of the lease agreement which requires the defendant to complete the structure within a period of two years. Though the issue with regard to clause 6 has not been framed but the suitors have understood the case of each and contested the matter. Hence, submission of the appellant in respect of non-framing issue relating to clause 6 has to be rejected.
77. I heard both the parties.
8. Following questions arise for consideration:
(i) Whether the court below has committed an error in decreeing the suit by referring clause 6 of the lease agreement?
(ii) Whether plaintiff proved the non completion of structure within two years under clause 6(b) of the agreement?
(iii) Whether the defendant proves that they could complete fifth floor within a period of 35 years from the date of lease agreement?
My answer would be as follows:
9. For the purpose of understanding the case, I have gone through the plaint, the plaintiff was aware by referring clause 12 of the lease agreement. Lease deed was entered into between the parties on 24/07/1979.
The agreement and contract it prevails and binding on the parties. Sub clause (b) of clause 6 of the agreement, reads as follows:
"6 (b) Further a nominal rent of Rs.750/-
(Rupees Seven Hundred and Fifty) per month shall be paid by the LESSEE to the LESSORS for a period of two years by which time the construction shall be over. If the Ground Floor is ready for occupation earlier than the above period, the rent of 8 Rs.40,000/- (Rs.Forty Thousand) per annum shall start from the date on which certificate of fitness is obtained as stated later in this Deed."
10. It is clear that the nominal rent of Rs.750/-
has to be paid by the appellant to the plaintiff for a period of two years by which time the construction shall be over. Therefore, the lessee must complete fifth floor within a period of two years. If it is further read it says that if the ground floor is ready for occupation earlier than the above period of two years, then the lessee has to pay rent of Rs.40,000/- per annum which shall start from the date on which certificate of fitness is obtained.
If this is a part of clause 6(b) is read, then Rs.40,000/-
rent has to be paid earlier after the completion of ground floor, if it is ready for occupation. This ambiguity crept in clause 6 which is the cause for the case between the parties. If first part of clause 6(b) says that completion of fifth floor to be made within two years whereas second part of clause (b) says Rs.40,000/- rent to be paid if the ground floor is ready for occupation. For the purpose of harmonious 9 understanding of the clause 2 years period for completion cannot be presumed. The lessee has taken 30 years to put up five floors assuming even one floor if it takes one year then it would have taken five years but it cannot be understood that the lessee is entitled for 35 years to put up the construction for handing over the possession to the lessor. Part (c) of clause 6 it further reads that the flat rent of Rs.40,000/- shall be paid by the lessee to the lessor from date on which the ground floor is completed and the certificate of fitness is obtained from the corporation. Further clause 6 elaborates that the lessee has not completed five floors within a period of two years. In entire clause 6 if read as a whole it shows that two years period is not given to the lessee to complete five floors, it makes lessee to put up ground floor and he has further agreed to pay Rs.40,000/- rent. It is not the case of the plaintiff in the plaint that clause 6(b) stipulates two years to complete for putting up five floors. The plaintiff refers clause 8 and 12. Clause 8 and 12 read as follows:
10"8. The LESSEE shall construct a Five Storeyed building on the Schedule Premises at its own cost and shall deliver possession of the Lease Property back to the LESSORS at the end of the period of lease with all the structures put up by it including all fixtures and fittings in the then existing condition free from any claim of the value thereof and free from all encumbrances. The amount of deposit kept by the LESSEE with the Karnataka Electricity Board is liable to be refunded by the LESSORS at the end of the period of lease.
12. All the structures that would be put up by the LESSEE from time to time and all permanent fixtures and fittings put up during the tenure of the Lease shall belong to the LESSORS absolutely after the expiry of the period of 35 years or sooner determination thereof, as provided herein and upon such expiry or determination of the lease, the LESSEE shall quit and hand over possession of the Schedule Property with all fixtures, fittings and installations to the LESSORS without claiming any benefit from the LESSORS therefore."11
11. In the light of the clause referred it admits that the lessee should handover all the structure put up by him including all fixtures in the existing condition free from any claim of the value thereof and free from all encumbrances. The lessee has to complete five floors and he has to hand over possession to the lessor thereof. In the light of the same, the dispute that the lessee has to handover the entire construction after completion of 35 years. At the time of handing over if five floors are not completed in any case if there is breach of agreement the lessor has to make necessary claim by filing suit.
12. The court below contemplates clause 6 for the purpose of grant of relief and later construed two years for the purpose of completion of five floors. For the purpose of Article 66 of the Limitation Act, limitation starts after the completion of 12 years from the date of lease deed is entered into on 27/04/1979 and 12 years would be over by the end of 1991 thereafter, within 12 years. The suit has been filed in 2003 for which the delay would come. Hence, the relief 12 granted without examining delay caused for the purpose of cause of action it is an error of law.
13. The learned counsel for the appellant submit that as per clause 8 of the agreement still time is there to put up fifth floor and he would complete within the time stipulated. The submission has been recorded and he further submitted that tax due to the corporation is undertaken to pay within a particular time in case of any failure his person will be liable for the corporation.
Limitation Act, 1963 Article 66 reads as follows:
Period of Time from which
Description of Suit
Limitation period begins to run
66.For possession of Twelve years When the forfeiture is
immovable property incurred or the
when the plaintiff has condition is broken.
become entitled to
possession by reason
of any forfeiture or
breach of condition
SYNOPSIS
1.Scope
2.Applicability of article
3.Special or local law
4.Article 66 and Section 111(g) of Transfer of Property Act
5.Forfeiture - Meaning of 13
6.Notice of forfeiture
7.Notice under Section 114-A of the transfer of Property Act
8.Suit on the basis of forfeiture
9.Relief against forfeiture
10.Waiver - What is?
11.Waiver of forfeiture
12.Breach of condition.
13.Breach of express condition of lease
14.Re-entry under exchange transactions
15.Denial of landlord's title
16.Voluntary alienation
17.Cause of action - Nature of
18.Onus of proof
19.Starting period of limitation.
1.Scope:- Where the widow on her remarriage prior to the commencement of Hindu Succession Act, had already been divested of her interest by virtue of Section 2 of the Hindu Widow's Remarriage Act, even if she continued in possession of the property after the commencement of the Hindu Succession Act, such possession being that of a trespasser if would not have the effect of creating any right on her under Section 14 because of the time when Hindu Succession Act, came into force her possession was that of a trespasser and not qua widow of the deceased husband.
After the passing of Hindu Succession Act, the widow's limited interest is converted into by absolute estate under Section 14(1) of the Act. So, after the passing of the above act if a Hindu widow contracts, remarriage there will not be a forfeiture of the estate inherited from her former husband. Therefore, in respect of the property which passes to the Hindu widow obsolutely there is no forfeiture of the estate on remarriage under Section 2 of the Hindu Widow's Remarriage Act, 1856 in view of passing of Hindu Succession Act, Section 14(1). Moreover, under the Hindu Marriage Act, 1955 Hindu widow can contract remarriage and there is no need for a Hindu to invoke the provisions of Widow's Remarriage Act, 1856. Therefore, Section 2 of the Hindu Widow's Remarriage 14 Act, 1856 must be deemed to have been overridden by Section 4(b) of the Hindu Marriage Act and Section 14 of the Hindu Succession Act.
Forfeiture of the right under the Muslim Personal Law, as a result of remarriage of widows also attracts this article. Therefore, the possession as co-sharer of widow's exclusive property in her own right cannot be claimed by the other brother of her late husband as soon as she remarriage one brother of the deceased husband.
Article 66 of the present Act corresponds to Article 143 of the repealed Act. This Article governs suits for possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
Article 66 of the present Act governs suits for possession of immovable property by reason of any forfeiture or breach of condition.
2.Applicability of article:- Article 66 would apply to all suits for possession but it is not confined to suits between landlord and tenant based on forfeiture.
Where under a deed of partition it was stipulated that if any of the co-sharers purchased the raiyati within the allotment of any of other co-sharer, the concerned co-sharer would be entitled to take possession of the holding so purchased by that other co-sharer then the suit filed by the co-sharer for possession was held to attract this article and the limitation would run from the time of purchase.
When a sale-deed stipulated that in case, the vendee was deprived of the possession of any portion of the property conveyed by the deed of conveyance, the vendor would make up the deficiency from his other lands, this article is not applicable as it is neither a forfeiture nor breach of condition but a breach of convenant.
3.Special or local law:- Article 1, Schedule III of the Bengal Tenancy Act, (8 of 1885) prescribed a period of one year for the landlord's suit for ejectment against a tenure-holder or a raiyat for the breach of a condition 15 expressly providing ejectment shall trespassers would not come under the said article.
4.Article 66 and Section 111(g) of Transfer of Property Act:- Where it was claimed that the lessor was entitled to re-entry by reason of the lessee on breach of convenant, it was first necessary to ascertain whether the agreement provides for re- entry on breach of such convenant.
Unless there is an express agreement for re- entry for breach of any convenant, the lessor will not be entitled to treat the lease as forfeited.
The landlord may re-entre even on the breach of a convenant in a permanent lease prohibiting transfer when the lease deed provides for re-entry on such illegal transfer.
Section 111(g) of Transfer of Property Act, provides that a lease of immovable property determines by forfeiture; that is to say, (i) in case the lessee break an 'express condition which provides that on breach thereof the lessor may re- enter; or (ii) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title himself; (iii) the lessee is adjudicated an insolvent and the lease provides that lessor may re-entry on the happening of such even and in all these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. Thus, forfeiture clause must be literally and strictly construed and should be taken most strongly against the lessor.
5.'Forfeiture'-Meaning of:- The term 'forfeiture' implies negligence or fault of a person, the result of which is to cause him to lose his property or right.
Where lease contains a condition forbidding the tenant from assigning it a mere subletting of the property would not entail forfeiture.
The word "forfeiture" as used in Section 114 of the Transfer of Property Act, has a technical meaning which must be ascertained by reference to Section 111(g) of the said Act. The forfeiture in this technical sense is 16 incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter and even if in such a case, the lessor has to notice in writing to the lessee of his intention to determine the lease on the ground of forfeiture.
6.Notice of forfeiture:- Where notice of forfeiture was given to ne of the heirs of the original tenant, it would be deemed to be service of notice on all the heirs.
Where lessee was subletting the whole or part of the leasehold premises he was not entitled to a notice under Section 114-A of Transfer of Property Act, to remedy the breach as it is not possible for the lessee to remedy the wrong.
When a lease of immovable property was determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter no suit for ejectment shall lie unless and until the lessor has served a notice in writing (a) specifying the particular breach complained thereof and
(b) if the breach be capable of remedy, requiring the lessee to remedy the breach and the lessee fails within a reasonable time to remedy the breach. But, this section does not apply to an express condition against assigning under letting, parting with possession or dispossessing of the property leased or to an express forfeiture for non-payment of rent specific provision has been made in Section 114 of the Transfer of Property Act. It is held that separate notice under Section 111(g) and under Section 114-A of the T.P. Act, have to be given.
7.Notice under Section 114-A of the Transfer of Property Act:- When the breach is remediable the landlord cannot enforce the right of forfeiture of the tenancy until and unless he given a opportunity to the tenant to remedy the breach.
Where the breach is capable of remedy and the lessee fails to remedy the breach in spite of notice under Section 114-A, the court has no power to grant relief against forfeiture.
178.Suit on the basis of forfeiture:- A lease when it contained the provision that on alienation by the lessee without the consent of the lessor the landlord can re- enter as upon a forfeiture, a sale of a portion of the tenure will not work a forfeiture of the whole tenure.
If property is sold under stipulation for the purchaser paying annually certain fees to the vendor in default whereof the vendor will be entitled to possession of a certain portion of the property sold a suit by the vendor for possession of such portion on the failure of the purchaser to make payment as stipulated fall within this article.
A sale-deed which carries a provisions that in case, the vendee was deprived of any portion of the land sold the vendor would make up the deficiency from his other lands, the provision was held to be a convenant and not a condition and, therefore, this article would be inapplicable to the case.
Where there was neither a rule of law, attaching forfeiture to a particular act nor any stipulation between the parties it would be a very strange and unusual thing to import a forfeiture.
Where land was granted with a condition of performance of specified service and the service was not performed that by itself would not be sufficient to make out forfeiture in favour of the grantor to justify resumption of the grant.
In case of partition, whereby arrangement among co-sharers it was provided that if any of the co-sharers purchased the raiyati holding laying within the allotment of any of other co-sharers the concerned co- sharer would be entitled to take possession of the holding so purchased and on of the co-sharers purchased a raiyati holding situate within the allotment of another and the latter thereupon sued for possession, it wash held that this article would apply and limitation would run from the date of the purchase.
In the instant case, a house was devised to 'X' for life with remainder to 'Y' and condition was attached to the life-estate that its holder should not leave the house and if he left at any time the remainderman would become entitled to possession forthwith. 'X' broke the 18 condition and 'Y' brought a suit for possession more then twelve years thereafter but within twelve years of the death of 'X'. The suit was held to be barred under this article.
The principle underlying in Section 111(g) of the Transfer of Property Act, as regards the forfeiture of leases would equally apply to lease which the Transfer of Property Act, does not apply as there are in consideration with justice, equity and good conscience. But, a suit for possession by the alleged landlord on the ground of forfeiture does not fall under this article; where relationship of landlord and tenant has never been existed between the parties.
The forfeiture should accrue before the institution of the suit.
9.Relief against forfeiture:- The Court has discretion to refuse to grant the relief against forfeiture for non- payment of rent.
Where tenant has not seek relief against forfeiture for non-payment of rent in the lower Court, the High Court in second appeal may grant the relief.
It cannot be said that executing Court could grant relief against forfeiture for non-payment of rent when an eviction decree on the ground of arrears of rent is being executed.
When the lease during the pending of the suit for eviction on the ground of forfeiture has expired due to efflux of time, no relief under Section 114 of the Transfer of Property Act, can be given.
It is for the party pleading waiver to establish that there was waiver of forfeiture. A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the right is claimed had full knowledge of his right and of facts enabling him to take action for the enforcement of such right.
A lease of immovable property when it has been determined by forfeiture for non-payment of rent and lessor sues the lessee for ejectment, if at the hearing of the suit, the lessee pays or tenders the lessor the rent in arrear, together with interest thereon and his full costs 19 of the suit, or given such security as the Court thinks sufficient for making such payment within fifteen days the Court thinks sufficient for making such payment within fifteen days the Court may in lieu of making such payment within fifteen days the Court may in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture and thereafter the lessee shall hold the property leased a if the forfeiture had not occurred.
This is provided in Section 114 of the Transfer of Property Act and this section given relief against forfeiture for non-payment of rent only.
10.Waiver - What is? - A waiver is an intentional relinquishment of a known right. Hence, mere inaction or laches will not constitute waiver.
It is well settled that waiver wipes off the right and bars a suit on the cause of action.
But, it will not bar a suit on a fresh cause of forfeiture.
11.Waiver of forfeiture:- If the breach of certain condition of which entails forfeiture is violated repeatedly, a mere waiver of the earlier breaches does not preclude the landlord from enforcing a subsequent breach.
In case of a suit for forfeiture, a claim for rent which fell due before forfeiture does not amount to waiver of forfeiture.
When the landlord being fully aware of the continuing breach acquiesces in it for a long time waives the forfeiture by accepting rent even though he had served the notice to quit.
The waiver of forfeiture as provided in Section 112 of the Transfer of Property Act, does not arise when there is demand and acceptance of rent which became due before the forfeiture and there is no waiver of forfeiture even if such demand was made after the notice of forfeiture.
Acceptance of rent by the lessor prior to the institution of the suit for ejectment on the ground of 20 forfeiture, when such rent became due after forfeiture operates as waiver.
12.Breach of condition:- Where the party failed to obtain possession of the property which he was entitled to receive in exchange, he was held entitled at his option for the return of the property transferred by him.
Although Section 119 of the Transfer of Property Act, does not explicity say that a party to the exchange is entitled to return even when the property has passed into the hands of an innocent purchaser, there is nothing in Section 119 to rule out such a contingency.
If one of the parties to the exchange is deprived of any portion of the property, he has obtained thereunder due to defective title of the transferor, he may claim return of his property which he had exchanged with the defendant. A suit for recovery of such property when refused attracts this article because the defendant in breach of the condition refuses to return the plaintiff's property. The person who had lost possession of property which he got possession in exchange of his property has the unfettered right to claim damages or return of the property so long as the property is still in the possession of the other party to the exchange.
When the sale-deed provided that if the vendee was dispossessed of any portion of the property sold, the vendor would meet the deficiency from his others lands, it is a case of breach of convenant of the deed of conveyance and not a breach of condition. Therefore, this article is not applicable.
This Article applies in case of breach of condition and not in case of mere breach of convenant.
When a plaintiff has become entitled to possession of the immovable property by reason of breach of condition it is attracted by this article. When the deed of partition stipulated that if any of the co-sharers, purchased the raiyati holding laying within the allotment of any other co-sharer, the concerned co- sharer shall be entitled to take possession of the holding so purchased, a suit to recover possession of the property so purchased by the defendant co-sharer attracts this articles because it is a case when the 21 plaintiff is entitled to recover possession on breach of condition.
13.Breach of express condition of lease:- The breach of express condition of the lease makes the lessee liable to forfeiture provided the lease deed expressly contains the right of re-entry on such breach. So when it is claimed that the lessor is entitled to re- entry by reason of the Lessee's breach of condition of the lease, it is first necessary to ascertain whether the lease agreement provides for re-entry on breach of such covenant.
When one partner after dissolution of the partnership business assigns to the other partner his interest in the leasehold of the partnership premises, it does not amount to a breach covenant prohibiting assignment of the lease without the lessor's consent.
When the lease deed prohibits re-entry and forfeiture if the breach be remedied within a reasonable time and the lessee takes immediate steps toi stop misuse by his tenant and it is found that the misuse was remedied within a reasonable time, the notice of re- entry cannot be sustained.
A mineral lease governed by Mines and Minerals(Regulation and Development) Act, 1957 is outside the operation of the Transfer of Property Act. Under Cl.(g) of Section 111 and Section 114 of the Transfer of Property Act, is not attracted to such lease.
When a lease deed contains a covenant prohibiting assignment without previous written consent of the landlord and such consent is not to be reasonably withheld in case of a respectable or responsible person, an assignment to a respectable person by the tenant without the landlord's consent does not amount to breach of covenant of the lease.
14.Re-entry under exchange transactions:- Where the parties had agreed that in case, either of them was deprived of the land he had received from the other under an exchange by reason of defect in title each should be entitled to get back the land given by him, the clause would be in the governed by this article.
22Where the terms of a lease prohibited alienation by the lessee but did not provide for re-entry by the lessor on breach of the condition, the breach will not give rise to forfeiture.
In case, the parties to an exchange of lands when stipulated that "should any objection arise with reference thereto equivalent land should be given back", such a stipulation does not constitute a provision for re- entry on the happening of a condition subsequent. However, it amounts to a covenant, and a suit for equivalent land being in the nature of a suit for specific performance will not be within this article.
15.Denial of landlord's title:- In the plaint when disclaimer of landlord's title is not pleaded, the landlord cannot be permitted to sue for eviction on the ground of denial of landlord's title.
Where proceeding was instituted for eviction of the defendants who are adhiars and they renounced their character as adhiar and claim title in themselves, it was held that lease stood terminated on repudiation of landlord's title and Section 111(g) of Transfer of Property Act, would apply.
When the tenant transferred part of the lease-hold interest and the same came to the knowledge of the plaintiff, he served notice under Cl. (g) of Section 111 of the Transfer of Property Act. Forfeiting the lease and filed a suit for recovery of possession. The defendant pleaded that even before some document of lease was created in 1905, it was clear from the same that it recognized that the predecessor of the defendants had already constructed permanent structures and that the said lease deed having forfeiture clause was nominal and that they being in possession from before 1905 and they never paid rent to the plaintiff and even if they had initially a tenancy right they had also acquired title by adverse possession. In the circumstances, the Supreme Court has held that on facts non-acceptance of the landlord-tenant relationship by setting up title in themselves as owners or acquisition of title and continuance of possession by operation of law or taking plea of adverse possession would not entail forfeiture.
2316. Voluntary alienation:- If there is a condition of forfeiture in case of alienation by the lessee, it meants voluntary alienation and the lease will not be forfeited if it is sold involuntarily, e.g., in execution.
17. Cause of action- Nature of:- A suit in the instant case was filed by the landlord against the tenant to recover possession from the tenant therefore, the suit clearly comes within Article 67 of the Act. The suit was filed because the tenancy was determined by the combined effect of the operation of Sections 12 and 13, Bombay Rent Act. In this connection, the terms of Sections 12 and 13 of the Bombay Rent Act, may be referred to. At the most, it would within Article 66 of the Act, if one holds that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in Section 13, Bombay Rent Act and on lifting of the embargo against eviction of tenant in terms of Section 12 of the Bombay Rent Act. That being so, either of the two, Article 66 or Article 67 would be applicable to the facts of this case, there is no scope of the application of Article 113, of Limitation Act, in any view of the matter, Sections 12 and 13 of Bombay Rent Act, co-exist and must be harmonised to effect the purpose and intent of the legislature for the purpose of eviction of the tenant. In that view of the matter Article 113, Limitation Act, has not scope of application. Large number of authorities were cited. In the view, Court has taken on the construction of the provisions of Articles 67 and 66, Limitation Act, and the nature of the cause of action in the light of Sections 12 and 13, Bombay Rent Act, the period of limitation in this case would be 12 years.
18.Onus of Proof:- In case of a suit under this article the plaintiff must prove forfeiture or breach of condition; his becoming entitled to possession forthwith. Where forfeiture is claimed to arise under a deed it should be established by reference to the terms of the deed and cannot be a matter of presumption or inference.
2419.Starting period of limitation:- According to third Column of Article 66, limitation starts running "when the forfeiture is incurred or condition is broken". When the forfeiture is entailed by reason of a breach of condition prohibiting alienation, the starting point of limitation will be the date of alienation and not the date when the deed was registered.
In violation of the terms of the lease, when lessee makes an assignment of the lease, limitation for a suit for recovery of possession by the landlord will be reckoned from the date of assignment of the lease and from the date when possession was given to the assignee.
In case of series of breaches of the express condition of lease each of which entailing forfeiture, it is open to the landlord to rest his claim for re-entry on the basis of the forfeiture of the latest act of denial of title on the breach of condition of the lease.
In violation of the terms of the lease prohibiting assignment or sub-lease when the lessee makes an assignment of the lease, the limitation starts from the date of assignment and not from the date when the assignee was given possession under the deed of assignment.
The period of twelve years prescribed under this Article will begin to run from the date when the forfeiture is incurred or the condition is broken.
Period of limitation is 12 years immediately after completion of 12 years from the date of two years after the lease deed 1979 and 12 years will end by 1993 and if plaintiffs were aggrieved they should have filed the suit within said period. However, admittedly, the suit has been filed in the year 2003. Hence, the Trial Court Judgment is liable to be set aside and it is further 25 ordered that the appellant shall complete fifth floor and handover in terms of the Lease entered into as per Ex.P1. Ordered accordingly.
Accordingly, appeal is hereby allowed.
Sd/-
JUDGE SM