1. We are of opinion that the pleas in special appeal must be maintained. The lower Appellate Court remarks that some years ago Nawal Kishore, representative of the deceased Babu Ram Ratan Singh, one of the original lessors in 1838 of the village in suit, fell into difficulties, and on the 20th November 1876, his zamindari rights were sold at auction to the present plaintiff, respondent. The auction-purchaser found that the conditions of the lease, as regards the payment of rent, had not been complied with. He therefore sues to cancel the lease in accordance with the terms of the agreement recorded therein. The Judge considers that any private arrangement by which the lessees have been in the habit of paying the rent direct to the Government treasury, instead of to the lessor, has no bearing upon the case, and questions as to what might happen to respondent if appellant failed to pay his instalments. The question was whether or not appellant had by his failure caused a breach in the conditions of the lease. If the lessees paid direct to the Government treasury they should have paid before the instalment fell due, and this they had not done. He concludes that it has been proved that there has been a breach in fulfilment of the conditions as regards the regular and punctual payment of the instalments on the part of the lessees, and therefore the lease was liable to cancelment. He dismisses the appeal and affirms the decree of the First Court cancelling the lease. On examination of the lease we must hold from its terms that it was intended to be perpetual. The original lessors reserved no profits for themselves. The lessees were to pay as rent Rs. 1,111 sicca rupees. The Government demand was or is Rs. 1,103-5-2, and there is no satisfactory evidence to show what became of the difference between these Rs. 1,111 and the equivalent in Queen''s coin, Rs. 1,180-7-0, after payment of the Government revenue. According to the terms of the lease, the Rs. 1,111 Moorshedabad rupees were to be paid to the lessor. The first condition as to payment of rent is that it is to be paid, instalment by instalment, when the Government revenue is paid. In case of its non-payment all the property of the lessees, both moveable and immovable, may be sold, and the proceeds applied to the liquidation of arrears. The second and fourth conditions impose upon the lessees all the responsibilities and duties of a full proprietor and declare that the lessors have no concern with the yearly rent as specified above. The lessees are to pay for roads, dak and police expenses, and patwaris'' fees. The final condition is that the lease shall be held valid as long as the lessees shall pay the lessors regularly at every instalment the rent of the estate. If even a single instalment in any way falls into arrears the lease shall be deemed null and void and shall be cancelled, the lessors having the right of making other arrangements with any one, as they pleased. It is not denied that, for convenience''s sake or for some other reason, the lessor and lessees in times past arranged that the rent should be paid direct to the Collector, and not to the lessor, and the lease has now held good from 1838 to May 1877, when the suit was instituted, a period of nearly 39 years. It is not shown that the plaintiff, after His auction-purchase in 1876, repudiated this arrangement, even if he had the power of doing so, or demanded the payment of rent directly to himself. We are not therefore disposed to hold that, in paying the rent to the Government treasury, there was any breach of the conditions of the lease that would entitle the plaintiff to claim its forfeiture, The money paid to and received by the Collector in accordance with the custom of past years must be regarded as money paid on account of the lessor and for him. We have seen that in addition to the alleged breach of conditions in paying directly to the Government treasury, the Judge finds that the payments have been made with irregularity and want of punctuality. This may be the case, but we do not see in the lease itself any provisions which would justify the forfeiture of the lease on this account. Looking at the wording of the first condition, we should hold that a suit for rent was contemplated in the first instance on the failure to pay with regularity, and a decree to bring to sale the moveable and Immovable property of the lessees in satisfaction of any arrears. We are disposed to regard the last condition as a provisional clause for the security of regular payments, but not as one intended to enable the lessor to take advantage of any remediable lapse on the part of the lessees to pay their rent, and we think that the fact that the lease has held good for 39 years, and that its teraas have been, in the matter of payment to the lessor, modified is a proof that the lease was perpetual and not to be cancelled at all as long as the rent was paid. It is worthy of note that there are other conditions in the lease not affecting the question of the payment of rent which has been raised in this suit, and which appear to be framed with the view of maintaining some evidence of the lessor''s proprietary rights, though the lease was intended to be perpetual. It seems to us that the suit in so far as it has been brought to cancel the lease because the rent was not paid to the representative of the lessor, but to the Government, must fail, for the reasons assigned, and that it must also fail as brought on the ground taken by the Judge, irregularity in payment and want of punctuality, there being no proof of any existing arrears.
2. But there are allegations in the plaint which neither of the Courts below have taken notice of in their judgments. The plaintiff states that the lease is liable to cancelment because the lessees have allowed others to plant trees, and have themselves dug, and caused others to dig, wells on the land, and their doing so is an infringement of the lease. We have no judgment of the Court below on these allegations; doubtless the plaintiff is entitled to a judgment on them. Before we decide the appeal we must remand the case, u/s 354, Act VIII of 1859, to the lower Appellate Court to determine whether or not the lessees have allowed others to plant trees, and have themselves done so, without the permission of the lessor; whether they have allowed others to dig wells, and have done so themselves, without the permission of the lessor; and though doubtless we ourselves might determine the point, we direct the lower Appellate Court to say whether, in the event of it being shown that the lessees have exercised these proprietary rights, they have thereby incurred the forfeiture of their lease.
3. The lower Appellate Court found that the lessees had planted trees and sunk wells, and allowed their tenants to do so, without the permission of the lessors, thus breaking the conditions of the lease, and that such breach of the conditions of the lease involved, under the terms thereof, its forfeiture. On the return of this finding the High Court delivered its Judgment, the material portion of which was as follows:
JUDGMENT
4. The main point on which the plaintiff relied was default in the payment of revenue, according to the Government instalments, the cause of action accruing on the 16th November 1876, 16th January and 2nd May 1877. At the end of the plaint, and as it were an after-thought, it is stated that the lease is also liable to forfeiture because the lessees have dug wells and caused wells to be dug by others, but no instances are specified and no detail given. (After determining that the lessor had acquiesced in the construction of wells and gardens by the lessees and their tenants, the Judgment continued:) We have already disposed of that portion of the appeal which relates to the alleged unpunctuality in payment of the revenue. We have held that there is nothing in the lease to justify forfeiture of the lease in regard to the mode in which the revenue was paid, or the regularity or irregularity with which it was paid. In payment of the revenue the lessees followed an arrangement between the lessor and themselves which held good from 1838 to 1877, and we also held that there was no proof that after the purchase the plaintiff repudiated the arrangement; we also held that the lease would not justify forfeiture on the ground of any irregularity in the punctual payment of rent; our reasons are given in our judgment of the 13th February of this year; they need not be repeated here. We now hold regarding the issue remanded to the Judge that the sixth clause of the lease contains no provision that, if the lessees should build wells without the consent of the lessor, they should be liable to forfeiture of the lease. There is no such condition in this clause; on the contrary, the concluding part of it provides that as long as the said leaseholders or their heirs shall continue to pay the Government revenue annually, instalment by instalment, the lease shall remain in force, but if they fall into arrears for a pice even, the lease shall become null and void and the lease shall be cancelled. It is clear that the lease contemplates as the main condition that there shall be no default in payment of the Government revenue, there is nothing more than a prohibition regarding wells and planting trees. Even where the right of the zamindar to claim forfeiture in such a case is proved, according to a Full Bench ruling in Sheo Churun v. Bussunt Singh H.C.R. N.W.P. 1871 p. 282 forfeiture is not to be deemed the invariable penalty for breach of contract occasioned by the construction of a well or improvement of a tenant''s holding. With this view of the case we decree the appeal and reverse the judgment of the Court below with costs, thus dismissing the suit as brought.
