A lessor is entitled to forfeit a lease for breach of an express condition in the lease providing for re-entry on breach thereof. The lessee is entitled to relief against forfeiture under Section 114 T. P. Act only if he pays or tenders to the lessor the rent in arrear together with the interest thereon and the full cost of the suit or gives sufficient security with the undertaking to make the necessary payment within 15 days.

( 1 ) THE defendants in a suit for ejectment on the ground of forfeiture have come up on appeal against the judgment and decree passed by a Subordinate Judge at Asansol. The suit was by a lessor against the lessees for khas possession on ejectment of the latter from the leasehold property on the ground of forfeiture by the breach of an express condition in the lease providing that on breach thereof the lessor would be entitled to re-enter.

( 2 ) MESSRS. Bengal Coal Company who we the respondents in this appeal gave a sub-lease in respect of a coal mining area in the year 1948 to appellants 1 to 4 who carried on business in the name of a partnership firm named "gazadhar Coal Company", which is appellant No. 5 in this appeal. The indenture of lease provided that,"if any rent, royalty, or any other sum of money reserved and made payable or any part thereof shall be in arrear or unpaid for the space of six calendar months next after the day whereon the same ought to be paid. . . . . . it shall be lawful for the lessors at any time thereafter to re-enter into and upon the said premises or any part thereof. . . . . . . . . . . . . "it was alleged that the defendants-appellants defaulted in the payment of rents and royalties, etc. , as stipulated in the indenture and thereby their lease became liable to forfeiture. The said lease was determined by service of notice in November 1952 and thereafter the present suit was instituted. The plaint also included a prayer for recovery of rents and royalties, etc. with interest thereon.

( 3 ) THE defendants filed a joint written statement denying that any amount was due from them on account of arrears of rent or royalty, the same having been paid to the plaintiff in due course. The defendants also denied receipt of any notice determining the tenancy as alleged.

( 4 ) THE learned Subordinate Judge found that there was nothing to prove that the defendant paid any amount beyond what was admitted by the plaintiff Company and was credited to the account of the defendants in schedule B of the plaint. He found that the defendants had made default in payment of rents, royalties, etc. in terms of their lease and that because of a breach of an express condition in the covenant which provided for a right of re-entry on breach thereof, the plaintiff Company was entitled to forfeit the lease and to re-enter the leasehold premises. On the question of service of notice under Section 111 (g) T. P. Act he found that the same was duly served on the defendants.

( 5 ) DURING the trial the defendants raised a plea that the plaintiff was not entitled to khas possession in view of the vesting of intermediary interests in mining rights in the State Government under the provisions of the West Bengal Estates Acquisition Act of 1953. The learned Subordinate Judge considered this contention and found that considering the position of the parties at or about the time when the cause of action for the suit arose and without allowing extraneous matters to crop up it would appear that the defendants were already trespassers on the leasehold property before the Act of 1953 came into operation and that such unlawful possession of trespassers which kept the plaintiff out of khas possession of the property would not disentitle them to the relief claimed in the suit. In other words he found that in the circumstances of the case there was no vesting of the plaintiffs interest in the disputed coal mining property in the State Government in terms of the W. B. Estates Acquisition Act.

( 6 ) AFTER the conclusion of arguments in the suit the defendants filed a petition offering to pay to the plaintiff Company the rents in arrears with interest and cost of the suit within 15 days and praying for relief against the forfeiture. The learned Subordinate Judge considered the prayer in his judgment, but refused to give the relief prayed for.

( 7 ) AS a result of its findings the trial court granted a decree for khas pos