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Judgment
The Judge has decided that there was a waiver of the condition of forfeiture by acceptance of rent--but the rent was received after the institution
of the suit. There was, therefore, no waiver.
The respondents'' pleader attempts to support the decree on the ground that even assuming that the defendant has broken the condition which
provides that on breach thereof the plaintiff may resume possession, it has not been alleged or proved that the lessor has done any act showing his
intention to determine the lease. As this point was not taken in the Court of first instance no evidence was taken and there is no finding. But there is
an allegation in the plaint that the plaintiff had previously sued for getting the same relief and that suit was withdrawn with permission to institute a
fresh suit. The institution of that suit was clearly a determination of the tenancy u/s 111, Transfer of Property Act.
We must, therefore, ask the Judge to return findings on all the other issues raised.
The findings should be submitted within six weeks, and seven days will be allowed for filing objections.
In compliance with the, above order, the District Judge of North Malabar submitted his finding and the High Court accepting the finding
dismissed the appeal.