Madhya Pradesh High Court
Smt. Meenakshi Jain vs State Of Madhya Pradesh And Ors. on 25 April, 1997
Equivalent citations: AIR1998MP78, 1998(1)MPLJ397, AIR 1998 MADHYA PRADESH 78, (1998) 1 JAB LJ 103, (1998) 1 MPLJ 397, (1998) 1 RENCR 475
JUDGMENT N.P. Singh, J.
1. This appeal by the plaintiff (now in appeal substituted by his daughter Smt. Meenakshi Jain) is directed against the dismissal of Civil Suit No. 2-A of 1980 by the Additional District Judge, Sagar dated 7-6-1985.
2. Facts necessary for disposal of this appeal arc thus: -
Plaintiff, Rana Kunjar Shamsher Jang Bahadur, filed the instant civil suit for declaration that, the lease of Nazul Plot No. 7, Block No, 57 situated in Civil Lines, Sagar, initially created by lease dated 30-9-1905, was still subsisting and operative and the same has not come to an end on 1-4-1959 and on any other date. The forfeiture of the lease and demanding the plaintiff to take a fresh lease of plot No. 7/1 shown in the red lines in the map of Nazul Officer, dated 4-12- 1963 on payment of premium and fresh enhanced assessment of rent, was unwarranted and illegal as also for recovery of possession, of Plot No. 7/1 and Plot No. 7/2, shown in the map of Nazul Officer attached with the plaint, by ejecting defendants.
3. The case of the plaintiff in short was that late Raj Kumar Devi Jang Bahadur, a Nepali citizen migrated from Nepal, was the original lessee of the suit land vide lease deed dated 30-8-1905 executed by the State in his favour in respect of Nazul Plot No. 7, Block No. 57 having an area of 4,22,253 sq. ft. equivalent to 9,58 acres with standing bunglow and out-houses, for a period of 30 years on payment of annual rent of Rs. 50.6.4 Pai with a covenant of renewal till the period of 90 years, at the option of the lessee. Rajkumar Devi Jang Bahadur/the lessee sold the bunglow with its premises to his father-in-law, General Prince Rana Khadag Shamsher Jang Bahadur, by a registered sale-deed dated 27-2-1907 and put the vendee in pdssession thereof. The vendee subsequently died in the year 1922 leaving behind his widow and sons, to succeed to his estate and the suit land. There was inter se exchange of shares between the plaintiff and his brothers and their mother by registered deeds and eventually the plaintiff became the exclusive owner of the suit land and his name was mutated in the revenue records and he continued to be the excluvie lessee acquiring all the rights and obligations of a lessee. In the year 1922-23 settlement of the various lands including the suit land was made by the Revenue Authority. By this settlement the period of lease was extended up to 30-6-1952 later by notification dated 25-11-1957 all the lease of the suit land were renewed up to 31 -3-1959. On 17-1 -1962 the plaintiff went to deposit the arrears of rent, but the concerned authorities refused to accept the rent saying that as per Government orders the rent cannot be accepted. The plaintiff then made an enquiry as to the reasons for non-acceptance of the rent then he learnt that the State Government had cancelled and forfeited the tease by order dated 6-2-1962 on the ground of non-payment of the rent and breach of condition of the lease, for having transferred portion of the land of the leasehold property to third person. The order of cancellation gave rise to the instant civil suit, which was dismissed which has given rise to this appeal.
4. The defendant/State filed the written statement supporting the action in forfeiting the lease and it was categorically stated that in cases "of contractual obligations and breaches thereof, law does not require any hearing to be given to the other party. It was pleaded that the action of forfeiture was taken on perusal of various documents and files which according to the defendant/State, justified cancellation of the lease deed.
5. The trial Court dismissed the suit. As against that the plaintiff preferred this appeal. During the pendency of the appeal the plaintiff died leaving behind the appellant (his daughter) to succeed the right to prosecute this appeal. This Court allowed the application for substitution of the name of the present appellant in place of the deceased plaintiff/appellant and accordingly Smt. Meenakshi Jain became the appellant.
6. Shri Abhay Sapre, learned Consel for the appellant, assailing the judgment under appeal mainly urged that in absence of any prior notice, determining the lease, the order/action of the respondent-State, in forfeiting the lease is bad in law. The contention of Shri Sapre in the context of Section 111 of the Transfer of Property Act deserves to be accepted.
7. It is settled that lease of immovable property executed by the State in favour of any person prior to coming into force of the M. P. Land Revenue Code, 1959 shall be governed by Transfer of Property Act, and the rights and liabilities of the lessor and the lessee will be dealt with in accordance with the provisions of the Transfer of Property Act.
8. Under the Transfer of Property Act, lease of immovable property can be determined only by the modes provided in Sub-sections (a) to (h) of Section 111. Sub-section (g) of Section 111 empowers the lessor to determine the lease by forfeiture in case of breach of express condition of the lease by the lessee. Section 111(g) of the Transfer of Property Act lays down as follows:--
"111. A lease of immovable property determines--
XXX XXX XXX (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;
(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."
9. It is obvious that forfeiture of lease can be made only by giving a notice in writing by the lessor to the lessee of his intention to determine the lease.
10. It is not in dispute that the order of forfeiture cancelling the lease was passed on the ground of lessor committing certain breaches, viz., having failed to pay the rent of the leasehold property and for having transferred some portion of the leasehold property to third person.
11. It is indeed and admitted fact, rather it is the case of the lessor/defendant State that the order of forfeiture cancelling the lease was passed without any notice to the lessee. The defendant-State in its written statement has clearly averred that "in a contractual matter of this kind, it is not necessary to give any notice". The alleged ground, which was made the basis for forfeiture of the lease by the defendant-State had no factual base. It is evident from Ex.P-27 that due permission was granted to the plaintiff lessee by the concerned authority to sell portion of the leasehold property vide its order dated 6-4-1985. The respondent-State once having granted permission to the lessee to sell portion of the leasehold property was estopped from complaining that the lessee had committed breach of condition of the lease. Moreover, it is settled that even where the leasehold provides for forfeiture, in case of assignment by the lessee, there can be no forfeiture and automatic resumption by the lessor without notice to the lessee determining lease. The breach of condition of the lease only makes the lease voidable. Therefore, forfeiture is not complete unless and until the lessor gives a notice to the lessee that he wish to exercise his option to determine the lease. The various High Courts as also the Apex Court have long accepted the principle of law in this regard.
12. In Ramniranjan Prasad Tulshyan v. Gajadhar Prasad, AIR 1960 Pat 525, the Patna High Court observed :--
"The provision as to notice by the lessor has been inserted in Section 111(g) for the benefit of the lessee and is a protective stipulations which cannot be set at naught by the contract entered into between the parties; and construing the provisions of Section 111(g) in the context of the English principle of equity embodied in Section 114 of the Act that a forfeiture clause for non-payment of rent is merely security for the rent, the provision as to notice contained in Section cannot be waived by the act of parties. There is, therefore, no forfeiture of lease where the finding of fact is that a notice has not been given by the lessor to the lessee of the forfeiture of the tenancy for non-payment of rent even though an express term in the registered lease provides for an automatic forfeiture on nonpayment of rent."
13. The Allahabad High Court in Chandrawati Devi v. SurendraPal, AIR 1979 All 406, followed the proposition of law laid down by the Patna High Court in Ramniranjen, AIR 1960 Pat 525 (supra) and held :--
"Where the lessor did not serve notice contemplated under Section 111(g) and also under Section 114A determining the lease on the breach of condition entailing forfeiture of the lease and entitling the owner to re-enter the lease would be deemed to be subsisting and claim of person claiming to be the transferee of the leasehold in possession would be lawful. Consequently the sale of the plot under lease, without determination of lease by notice under Section 111(g) would be void as the owner of the plot had no right to sell it with vacant possession and unencumbered with the lease."
14. In a similar case, the Orissa High Court, in Orissa Fisheries Development Corporation Ltd. v. Sudhansu Sekher Sahu, AIR 1994 Orissa 158 has held :--
"Where no notice contemplated under Section 111(g) was served by lessor on lessee who violated terms of lease by failing to pay rent of the year within time and no document was placed to prove that lessee ever surrendered the lease in favour of lessor or any other party, determination of lease cannot be established."
15. The learned trial Court did not examine the issue in the context of requirement of Section 111(1)(g) of the Transfer of Property Act and hence committed an error of jurisdiction. In somewhat similar circumstances, the Apex Court, in State of U.P. v. Dharmander Prasad Singh, AIR 1989 SC 997, while criticising the action of the State against the lessee, observed :--
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extra-judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridicial possession and forcible dispossession in prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the instant case the fact that the lessor is the State docs not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and governmental authorities should have a 'legal pedigree'. Therefore, there is no question in the instant case of the Government thinking of appropriating to itself an extra-judicial right or re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is accordingly, prohibited from taking possession otherwise than in due course of law."
16. In view of the discussion aforesaid, the judgment and decree under appeal are set aside. The appeal succeeds and is allowed and the suit is decreed with costs.