The main legal point established in the judgment is that Section 155, Ben. Ten. Act applies to every case of breach, and the application of the section does not depend on the nature of the covenant but applies to every case where the landlord sues the tenant for ejectment.

JUDGMENT

Suhrawardy, J. - In a lease executed by defendant 4 in favour of the landlords whose interest has now devolved upon the plaintiffs, creating a miras karsha, there was a covenant that if the tenant transferred the holding without the landlord's consent the landlord would have the right of re-entry. In 1326 defendant 4 sold the holding to defendant 1 who purchased it in the benami of defendant 2. Thereafter the plaintiffs brought the present suit for recovery of khas possession of the holding on the ground of breach of the covenant and also of abandonment. The defence was that defendant 4 was not aware of the stipulation in the lease and that she had a permanent transferable interest in the holding. The most important question raised at the trial was whether the plaintiff's suit was maintainable in view of Section 155, Ben. Ten. Act. There was also a denial of abandonment inasmuch as defendant 4 had taken a sublease from the purchaser (defendant 1) of the holding in suit. The Munsif found both the points in favour of the plaintiffs and gave them a decree. On appeal the learned Subordinate Judge has reversed the findings of the Munsif on these two points and dismissed the plaintiff's claim for khas possession allowing them a decree declaring their title to the oshat nimhowla and mirasijara claimed by them and further declaring that defendant 4 had no right to transfer the holding in suit.

2. The plaintiffs have appealed and it is argued on their behalf that the view of law taken by the learned Subordinate Judge on the two vital points raised in the case viz., the application of Section 155, Ben. Ten. Act, and the abandonment by defendant 4 are erroneous.

3. With regard to the first point : the question that falls for determination is whether a case of breach of covenant giving the right of re-entry to the landlord is covered by Section 155, Ben. Ten. Act, and makes it compulsory on the landlord in suing on the covenant for recovery of khas possession to serve a notice upon the tenant under that section. That a covenant which gives the landlord the right of re-entry, on the tenant transferring the holding, is subject to the provisions of the Bengal Tenancy Act, cannot be doubted. It has been held that even if there be such a covenant under which the landlord can take possession of the holding without the intervention of the Court, he is unable to do so by virtue of Section 89, Ben. Ten. Act : Buddhimanta Paramanik v. Sarat Chandra [1910] 13 C.L.J. 672. Section 155, so far as it is relevant to the present purpose, says that a suit for ejectment of a tenant, on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular breach complained of prima facie, and giving their natural meaning to the words of the section it is clear that, whenever a landlord sues for ejectment of a tenant, he is bound to follow the procedure laid down in Section 155, Ben. Ten. Act. But, on the authority of the decision in the case of Dwarka Nath v. Mathura Nath [1916] 24 C.L.J. 40 it is argued that where a tenant holding under a lease covenanting against alienation sells the tenancy he ceases to be a tenant and, therefore, Section 155, Ben. Ten. Act is not applicable in his case.

4. The high authority of the decision has made it incumbent upon me to look very closely into the law and the reasoning which induced their Lordships to hold the view expressed therein. With very great respect I do not find anything either in Section 155 or in the general law to hold that because a tenant commits an act in breach of the terms of the tenancy, he ceases to be a tenant within the meaning of Section 155. He continues to be a tenant until he is declared by a Court of justice that he has forfeited his tenancy and is liable to be ejected : Section 89