# GOPI KRISHNA KANORIA v. DRAUPADI SAHAYA & ORS

- **Citation:** [1970] 3 S.C.R. 826
- **Court:** Supreme Court of India
- **Decided:** 1970-02-23
- **Case number:** Civil Appeal No. 31 of 1967
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopi-krishna-kanoria-v-draupadi-sahaya-ors-4971
- **Pages:** 4

## Headnote

Bihar Tenancy Act, 1885, ss. 10, 155 and 178(1)(c)-Bihar Land Re-
.forms Act, 1950--Mokurrari tenure held under registered document prior
to Act of 1885---0n failure to observe conditions of tenure under the instrument notice given for cancellation of tenure and suit filed }or ejectnient,,.-Bihar Act of 1950 vesting tenure in State-Whether clai1n of proprietor to full compensation lay when hi~ notice of cancellation of tenure
did not comply with terms of s. 155 of 1885 Act-Effect of ss. 10 and
178(1)(c).
The respondents held from the ·appellant certain land on Mokurrari
tenure (permanent lease) created under a registered instrument dated
•October 29, 1885. According to the said document the proprietor was
<:ompetent to cancel the lease in the event of a default in the payment of
four successive kists by the tenure holder.
On the failure of the respondents to pay four successive kists the appellant on June 22, 1953 served
on them a notice terminating and cancelling the Mokurrari tenure. During
the pendency of the suit which was filed by the appellant in September
Il953 it was declared that the Mokurrari tenure became vested in the
State of Bihar with effect from July 26, 1954 under the provisions of the
Bihar Land Reforms Act, 1950.
The
plaint was amended and certain
parties were added. The appellant claimed that he was entitled to the
·entire compensation which was tO be ·received from the State. The trial
court held that on account of the failure df the appellant to give a notice
to the respondents under s. 155 of the Bihar Tenancy Act, 1885 the respondeqts continued to be the tenure holders till the tenure vested in the
State and therefore the appellant was not entitled to the full compensation.
The High Court upheld the order of the trial court. In appeal by certificate the appellant relied on s. 10 of the Act which it was claimed made
-s. 155 inapplicable, in a case like the present, where the contract was
made before the Act of 1885.
HELD : Section 10 simply provides tnat the holder of a permanent
tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of
A
B
c
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the contract. Section 178 ( 1 )( c) says categorically that even though the
contract has been made before the passing of the Act the landlord cannot
eject a tenant otherwise' than in accordance with its provisions. Section 155
places a bar against a suit being entertained unless the requirements laid
down therein have been satisfied. Therefore even though under s. IO
G
the appellant became entitled to eject the respondents on account of the
breach of the condition relating to payment of rent the condition prece·
dent for a suit being entertained by a court was the notice served in the
prescribed manner speci'fying the breach
v.rhich was capable of remedy
and in which the tenant should have been required to remedy the same
or in any case to pay ·reasonable compensation for the breach.
If the
tenant had failed to comply within a reasonable time with that request then
alone the suit was maintainable.
Even if under the proviso to .s. 10 the
H
contract which was entered into before the
commencement of the Act
could contain conditions which \Vere inconsistent with the provisions of
the Act that did not dispense with the requirements of s. 155 of the Act
,,
G. K. KANORIA v. D. SAHAYA (Grover, J.)
827
A
which had to be satisfied before any suit could be entertained.
As the
notice which had been served by the appellant did not comply with the
provisions of s. 155 the courts below rightly negatived his claim to the
entire compensation nioru:y. (829 C-G]
B

## Text

826
GOPI KRISHNA KANORIA
v.
DRAUPADI SAHAYA & ORS.
February 23, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
Bihar Tenancy Act, 1885, ss. 10, 155 and 178(1)(c)-Bihar Land Re-
.forms Act, 1950--Mokurrari tenure held under registered document prior
to Act of 1885---0n failure to observe conditions of tenure under the instrument notice given for cancellation of tenure and suit filed }or ejectnient,,.-Bihar Act of 1950 vesting tenure in State-Whether clai1n of proprietor to full compensation lay when hi~ notice of cancellation of tenure
did not comply with terms of s. 155 of 1885 Act-Effect of ss. 10 and
178(1)(c).
The respondents held from the ·appellant certain land on Mokurrari
tenure (permanent lease) created under a registered instrument dated
•October 29, 1885. According to the said document the proprietor was
<:ompetent to cancel the lease in the event of a default in the payment of
four successive kists by the tenure holder.
On the failure of the respondents to pay four successive kists the appellant on June 22, 1953 served
on them a notice terminating and cancelling the Mokurrari tenure. During
the pendency of the suit which was filed by the appellant in September
Il953 it was declared that the Mokurrari tenure became vested in the
State of Bihar with effect from July 26, 1954 under the provisions of the
Bihar Land Reforms Act, 1950.
The
plaint was amended and certain
parties were added. The appellant claimed that he was entitled to the
·entire compensation which was tO be ·received from the State. The trial
court held that on account of the failure df the appellant to give a notice
to the respondents under s. 155 of the Bihar Tenancy Act, 1885 the respondeqts continued to be the tenure holders till the tenure vested in the
State and therefore the appellant was not entitled to the full compensation.
The High Court upheld the order of the trial court. In appeal by certificate the appellant relied on s. 10 of the Act which it was claimed made
-s. 155 inapplicable, in a case like the present, where the contract was
made before the Act of 1885.
HELD : Section 10 simply provides tnat the holder of a permanent
tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of
A
B
c
D
E
F
the contract. Section 178 ( 1 )( c) says categorically that even though the
contract has been made before the passing of the Act the landlord cannot
eject a tenant otherwise' than in accordance with its provisions. Section 155
places a bar against a suit being entertained unless the requirements laid
down therein have been satisfied. Therefore even though under s. IO
G
the appellant became entitled to eject the respondents on account of the
breach of the condition relating to payment of rent the condition prece·
dent for a suit being entertained by a court was the notice served in the
prescribed manner speci'fying the breach
v.rhich was capable of remedy
and in which the tenant should have been required to remedy the same
or in any case to pay ·reasonable compensation for the breach.
If the
tenant had failed to comply within a reasonable time with that request then
alone the suit was maintainable.
Even if under the proviso to .s. 10 the
H
contract which was entered into before the
commencement of the Act
could contain conditions which \Vere inconsistent with the provisions of
the Act that did not dispense with the requirements of s. 155 of the Act
,,
G. K. KANORIA v. D. SAHAYA (Grover, J.)
827
A
which had to be satisfied before any suit could be entertained.
As the
notice which had been served by the appellant did not comply with the
provisions of s. 155 the courts below rightly negatived his claim to the
entire compensation nioru:y. (829 C-G]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 31
of
1967.
Appeal from the judgment and decree dated November 27,
1961 of the Patna High Court in Appeal from Original Decree No.
459 of 1956.
B. Sen and B. P. Maheshwari, for the appellant
c
Sarjoo Prasad, U. S. Prasad, Santok Singh and U. P. Singh,
D
E
F
G
H
for respondent No. 1.
U. P. Singh, for respondent No. 11.
The Judgment of the Court was delivered by
Grover, J.
This is an appeal by certificate against a judg·
ment of the Patna High Court in a suit instituted by the appellant
for arrears of Mokurrari rent and cess with interest for four kists ·
and for khas possession by evicting the respondents. In the alternative the appellant asked for the payment of compensation money
in respect of Mokurrari tenure which had vested in the State of
Bihar under the Bihar Land Reforms Act 1950.
By means of a registered instrument dated October 29, 1885
the then proprietor of four villages had created a Mokurrari tenure
(permanent lease) in favour of Frederick Richard Simson and
George Venes.
The appellant had acquired the proprietory in·
terest in the villages by purchase and similarly the respondents had
acquired the Mokurrari tenure. In the registered instrument there
WaS a clause that in the {!Vent Of a default in payment of four SUCcessive kists the proprietor would be competent to cancel
the
Mokurrari patta.
The respondents did not pay four successive
kists which had become due in June 1952, September 1952,
December 1952 and March 1953. On June 22, 1953 the appellant served a notice terminating and cancelling the Mokurrari
tenure in terms of .the c.lause relating to cancellation. During the
pendency of the smt which was filed by the appellant in September
1953 it was declared that the Mokurrari tenure became vested in
t~e State of Bih:U- with effect from July 26, 1954 under the provisions of the B1har Land Reforms Act 1950.
The plaint was
amended and certain parties were added.
The controversy was mainly confined to the question of pavment of compensation.
According to the appellant he was entitled to the entire compensation which was to be received from
828
SUPREME COURT REPORTS
[1970) 3 S.C.R.
A
the State.
The respondents maintained that no notice had been
given under s. 155 of the Bihar Tenancy Act 1885, hereinafter
called the "Act", and, therefore, the appellant could not sue for
ejectment. Before the trial court it was admitted that the appellant did not serve a notice as contemplated under s. 155 of the
Act. It was, however, contended that section was not applicable.
The trial court found that there had been a breach of the covenant
B
relating to payment of rent which had resulted in forfeiture but
inasmuch as the appellant did not follow the procedure prescribed
by s. 155 the respondents continued to be the tenure-holders till
the tenure vested in the State. The appellant was, therefore, not
entitled to the entire compensation money including tht of the
tenure. The High Court upheld the decision of the trial court on
C
the point.
Section 10 of the Act is in the following terms :
"A holder of a permanent tenure shall not be ejected
by his landlord except on the ground that he has broken
a condition on breach of which he is, under the terms of
a contract between him and his landlord, liable to be
ejected:
Provided that where the contract is made after the
commencement of this Act, the condition is not inconsistent with the provisions of this Act."
Section 178(l)(c) provides that nothing in any contract between
a landlord and a tenant made before or after the passing of the
Act shall entitle a landlord to eject a tenant otherwise than in
accordance with the provisions of the Act. Section 155(1) may
also be reproduced.
"A suit for the ejectment of tenllillt, on the ground-
( a) ............................... .
(b) 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 landlords has served, in the prescribed manner, a notice on the tenant
specifying the particular misuse or breach complained
of, and where the misuse or breach is capable of remedy,
requiring the tenant to remedy the same, and, in any
case, to pay reasonable compensation for the misuse
or breach, and the tenAnt has failed to comply within a
reasonable time with that request."
It has been contended by Mr. B. Sen for the appellant that
by virtue of the proviso to s. 10 the requirement of consistency
D
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c
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G. K. KANORIA v. D. SAHAYA (Grover, J.)
829
of conditions with the provisions of the Act is limited to contracts
made after the commencement of the .Act. In the present case
the registered instrument· was executed before the commencement
of the Act. On a true construction of s. 10 and by necessary
implication this freedom from the applicability of or consistency
with the provisions of the Act is absolute and unqualified and the
effect of the proviso is that any condition imposed by any of the
provisfons of the Act is excluded whenever there is a case where
the contract has been entered jnto before the commencement of
the Act. It has been i;mphasised that s. 10 is a ·specific provisio11
relating to permanent tenures and it cannot be restricted or curtailed. by the general provisions of s. 178 ands. 155 of the Act.
In this manner the applicability-of s. 155 has been sought to be
excluded.
Now s. 10 simply provides that the holder of a permanent tenure shall n.ot be ejected except on the ground that he
has broken a condition on breach of which he is liable to be ejected under the teims of the contract. Section 17 8(1 )( c) says categorically that even tho_ugh the contract has been made before the
passing of the Act the landlord cannot eject a tenant otherwise
than in accordance with its provisions. Section 155 places a bar
against a suit being entertained unless the requirements laid down
therein have been satisfied.
Therefore even though under s. 10
the appellant became entitled to eject the respondents on account
of the breach of the condition relating to paYITlent of rent the
condition precedent for a suit being entertained by a court was the
notice served in the prescribed manner specifying the breach which
was capable of remedy and in which the tenant should have been
required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was
maintainable. Even if under the proviso to s. 10 the contract
which was entered into before .the commencement of the Act
could contain conditions which were inconsistent with the provisions of the Act that did not dis!Jense with the requirements of
s. 155 of !he Act whic_h .had to be satisfied before any suit could
be entert~med. As the notice which had been served by the appellant did not comply with the provisions of s. 155 the courts
below rightly negatived his claim to the entire compensation
money.
The appeal fails and is dismis8ed with costs.
G.C.
Appeal dismissed.