Back
HIGH COURT OF ORISSA
Mohapatra And P. V. B. Rao, JJ.
RAJA SRI KRISHNA CHANDRA MANASINGH HARICHANDAN MARDARAJ - Appellant
Versus
NATIONAL CHEMICAL AND SALT WORKS LTD. - Respondent
First Appeal 4 Of 1950
Decided On : SEPTEMBER 03, 1956
LEASE - FORFEITURE - CONDITION - BREACH - NOTICE - SECTION 114-A, TRANSFER OF PROPERTY ACT - INTERPRETATION - REMEDY FOR BREACH - DAMAGES - SUIT FOR EJECTMENT.
Fact of the Case:
Plaintiff-appellant filed a suit for recovery of possession of the lease-hold property by evicting the defendants therefrom as the lease stands determined and cancelled. The defendants had taken out a registered lease for a period of 40 years executed by the original plaintiff on 12-2-1940. The lease was on an annual rental of Rs. 650/-. On the basis of the lease, the defendants obtained the right to manufacture salt on the plots locally known as madhuban. The plaintiff's allegation is that the defendants have violated the conditions embodied in the lease by carrying on fish business in the said property and also by letting out the fishery therein.
Finding of the Court:
The court found that the plaintiff failed to prove that the defendants were carrying on fish business in the leasehold property. The court also held that the lease did not contain an express provision for re-entry and that the notice served by the plaintiff under Section 114-A of the Transfer of Property Act was defective as it did not give the defendants an opportunity to remedy the breach.
Issues: 1. Whether the defendants were carrying on fish business in the leasehold property in violation of the terms of the lease? 2. Whether the lease contained an express provision for re-entry? 3. Whether the notice served by the plaintiff under Section 114-A of the Transfer of Property Act was valid?
Ratio Decidendi: 1. The court held that the plaintiff failed to prove that the defendants were carrying on fish business in the leasehold property. The court relied on the evidence of the plaintiff's witnesses, which was found to be unreliable, and on the fact that the defendants had not produced their account papers to show that they were not carrying on fish business. 2. The court held that the lease did not contain an express provision for re-entry. The court interpreted the clause in the lease that "any other business or manufacture taken up without the written consent of the landlord of the first part this lease stands cancelled" as not being a specified uncertain event as contemplated under Section 31 of the Transfer of Property Act. The court also held that the clause did not amount to a clause for re-entry as contemplated under Section 111(g) of the Transfer of Property Act. 3. The court held that the notice served by the plaintiff under Section 114-A of the Transfer of Property Act was defective as it did not give the defendants an opportunity to remedy the breach. The court held that the breach of the condition in the lease was capable of being remedied by way of damages and that the plaintiff ought to have given a notice and opportunity to the lessees for compensating him within a reasonable time.
Final Decision: The appeal was dismissed with costs.
MOHAPATRA, J.
( 1 ) THIS first appeal has been filed by the plaintiff-appellant against the judgment and decree dated 19-9-1949 of Sri K. S. R. Murty, 2nd Additional Subordinate Judge of Puri, arising out of a suit for recovery of possession of the lease-hold property by evicting the defendants therefrom as the lease stands determined and cancelled. The defendants are Messrs. National Chemical and Salt Works Limited (India), calcutta. The original plaintiff was the ex-proprietor of Parikud, and the estate of Parikud having vested in the State of Orissa under the provisions of the Orissa estates Abolition Act, the State of Orissa has been made co-appellant at the appellate stage. The defendants company had taken out a registered lease for a period of 40 years executed by the original plaintiff (the ex-proprietor of Parikud) on 12-2-1940. The lease was on an annual rental of Rs. 650/ -. On the basis of the lease, the defendants obtained right to manufacture salt on the plots locally known as madhuban and it was specifically provided for in the lease that the lessees will have full right to make channels, bundhs, platforms and other requirements for the said manufacture of salt and it bye-products and if necessary the tenants of the second part can set up engine, boilers and other machineries for the said manufacturing purposes. The lessees also had the right to erect buildings and huts for the accommodation of the staff; but nevertheless the lessees had not any right over the minerals. Right of transfer was allowed, but nevertheless it was provided that the transferees would be subjected to the selfsame conditions embodied in the lease. The pertinent clause with which we are concerned in the present suit is as follows:
"in the leasehold property the tenant of the second part of their transferee if any will not do any other business or manufacture of any other kind. Any other business or manufacture taken up without the written consent of the landlord of the first part this lease stands cancelled. "
It was further provided that the tenants of the second part would start manufacture of salt or its bye-products within three years of the commencement of the lease, failing which this lease would be automatically cancelled. It would be pertinent to quote another provision which comes almost last in the lease: "the landlord of the first part cannot and shall not cancel the lease on any ground whatsoever. " the plaintiff's allegation is that the defendants have violated the conditions embodied in the lease by carrying on fish business in the said property and also by letting out the fishery therein. The plaintiff had served A notice (Ext. 2 (a)) on the defendants company on 12-10-1944 alleging that as the defendants carried on fish business in the leasehold property, the lease stood automatically cancelled, and the plaintiff called upon the defendants to leave the premises of the leasehold property. A second notice (Ext. 2) also was served on the defendant on 19-11-1948 on the same allegation that the defendants wore carrying on fish business in Madhuban in violation of the terms of the lease and the lease therefore is forfeited and cancelled. The plaintiff in that notice mentioned that the defendants were forbidden to enter upon the land and water of the "leasehold, property. Within a month from this notice the plaintiff filed the suit on 6-12-1948.
( 2 ) THE defence is a denial of the allegation of fishing or carrying on the business of fish in the leasehold property. They have further taken up the plea that on the basis of the lease they have the right of fishing, but in any event their right of manufacture of salt and its bye-products on the basis of the lease cannot in law be forfeited, nor does the lease stand can-celled.
( 3 ) THE learned Subordinate Judge has dismissed the suit on the ground that there is no express provision for re-entry in the lease and further that the suit is to fail on account of absence of notice as conte
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
