JUDGMENT

Radha Krishna, J - This is the defendant's appeal arising out of a suit for ejectment brought against him by the plaintiff-respondent on the allegation that the defendant was holding the land in suit as his lessee and the lease was determined by forfeiture on the ground that the lessee had renounced his character as such by setting up a title in himself. The Courts below have decreed the suit. In second appeal before me it has been argued that in order to work a complete forfeiture it is not only that the lessee should have renounced his character as such but the lessor should have given notice in writing to the lessee of his intention to determine the lease. No such notice was given and therefore it is argued that the suit was not maintainable. The other contention put forward on behalf of the appellant is that the plaintiff failed to prove his title. It is admitted that if the relationship between the parties is that of lessor and lessee, then the case would be governed by the provisions of Section 111, Clause (g), T.P. Act, as amended in 1929. I have heard the learned Counsel for the parties. I am of opinion that the first contention raised by the learned Counsel for the appellant must prevail. Section 111(g) runs as follows:

A lease of immovable property determines (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...or (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.

2. A perusal of the last sentence will show that the giving of notice in writing is an essential condition of forfeiture taking effect in law. In fact the act of lessee renouncing his character as such makes the lease only voidable, that is, gives the lessor a right to avoid the lease but the lessor is not entitled to take possession until he actually avoids the lease by issuing a notice in writing as set forth in the last sentence in Clause (g) of Section 111, T.P. Act. My opinion which is based entirely upon the language of the enactment referred to above is that a lesspr cannot file a suit for ejectment until after he has given notice because till then the relationship of lessor and lessee subsists.

3. On behalf of the respondent it is contended that the above plea is a new one and raises a question of fact and should not be permitted in second appeal. The plea in my opinion is a pure plea of law and I am of opinion that in order to entitle him to a decree for ejectment it was necessary for the plaintiff to set up definitely in his plaint a case to the effect that he had complied with the provisions of law by issuing a notice. A plea of law, like the present one, which goes to the very root of the case, can be entertained in second appeal. The plea of law in the present case arises upon the allegations in the plaint itself and upon the record of the case and I consider that it is not only competent but expedient in the interests of justice to entertain such a plea: vide M.E. Moola Sons Ltd. v. Perm R. Burjorjee AIR 1932 PC 118. On the view expressed by me above it must be held that the suit as framed was not maintainable. It is not necessary to decide the other point raised by the learned Counsel for the appellant. The result is that the appeal is allowed, the decree passed by the Courts below is reversed, the suit filed by the respondent is dismissed with costs throughout.