Radha Charan Das v. Pravabati Dassi — 1957 DIGILAW 89 (CAL)

Judgment 1. THIS appeal, at the instance of the plaintiff, is directed against an appellate decree affirming the decree of a learned Munsif. 2. ACCORDING to the plaintiff, he is the landlord of 4 cottahs 10 chittaks of Bastu land in Mouza Baranagore, District 24 Parganas. The defendant took settlement of the said land from the plaintiff agreeing to pay a monthly rent of Re. 11/- In evidence of the settlement, the defendant executed a Kabuliyat in favour of the plaintiff. The period of tenancy fixed under the Kabuliyat was for five years. The Kabuliyat bears the date 20th Agrahayan, 1s46 B. S. (corresponding to December 6, 1939) and was registered according to law. Inducted in the manner aforesaid the defendant raised a hut on the land and continued in occupation. 3. THE period of the tenancy, fixed under the Kabuliyat, expired in Kartick, 1351 B. S. Thereafter the defendant tenant held over. The defendant became a defaulter in payment of rent from Kartick, 1356 B. S. to Chaitra, 1357 B. S. It was in these circumstances that the plaintiff caused service of a notice, dated September 2, 1950, (corresponding to 16th Bhadra, 1357 B. S.-Ed.) on the defendant, terminating the tenancy with the expiry of the month of Chaitra, 1357 B. S. 4. IN the suit, out of which this appeal arises, plaintiff claimed ejectment of the defendant, arrears of rent and mesne profits. The defendant took a number of defenses with all of which I am not concerned at the present moment. The defense with which I feel concerned is whether the notice to quit was bad not being in conformity with the West Bengal Non-Agricultural Tenancy Act. 5. THE trial court dismissed the claim for ejectment and mesne profits but passed a decree fur arrears of rent in favour of the plaintiff. The reasons which weighed with the learned Munsif in dismissing the claim of the plaintiff are hereinafter stated: (a)"the bastu in suit is admittedly within the Baranagore Municipality to which the provisions of the West Bengal Non-Agricultural Tenancy Act XX of 1949 apply. Admittedly the defendant took settlement of the bastu land in suit for residential purposes for a limited term of 5 years by this registered lease, dated 6. 12. 39 (Vide Ext. 4. The present plaint was filed in this court on 4. 5. 51. Admittedly the defendant took settlement of the bastu land in suit for residential purposes for a limited term of 5 years by this registered lease, dated 6. 12. 39 (Vide Ext. 4. The present plaint was filed in this court on 4. 5. 51. Thus apart from any other consideration, 11 years, 4 months and 28 days passed from the date of this lease to the date of the institution of this suit. That being so, whether the defendant has been holding over or possessing this bastu on a new settlement, her tenancy is governed by the provisions of section 9 of the aforesaid Act." (b) "we get. from sub-section (5) of section 7 of the aforesaid Act XX of 1949 that if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, when such structures have been raised before or after the expiry of the period of the lease, then the tenant, holding such land shall not be evicted except on the ground that he used the land in a manner which renders it unfit for use for the purposes of the tenancy". (c) "evidence admittedly goes to show that the defendant has been living in the suit land by erecting pucca structures. The structures comprise bed rooms, one kitchen, one verandah, one pucca court-yard, pucca walls round the house, pucca well, pucca service privy, etc." (d) "it is further clear that the plaintiff allowed these structures to be raised by the defendant during the continuance of the lease in writings That being so, the defendant is not liable to be evicted except on the ground of misuse of the tenanted land, rendering the same unfit for the purposes of the tenancy. But this is not the ground of ejectment according to the plaintiff." 6. THE plaintiff appealed to the lower appellate court. It was contended before the lower appellate court that the Kabuliyat dated December' 6, 1939, executed by the tenant defendant alone and purporting to create a lease for a term of 5 years was hit by the provisions of section 107 of the Transfer of Property Act and was inoperative and should not be treated as a lease in writing. It was contended before the lower appellate court that the Kabuliyat dated December' 6, 1939, executed by the tenant defendant alone and purporting to create a lease for a term of 5 years was hit by the provisions of section 107 of the Transfer of Property Act and was inoperative and should not be treated as a lease in writing. It was therefore argued on behalf of the plaintiff appellant that the defendant held the disputed land without a lease in writing and his tenancy was terminable by six months' notice in writing, expiring with the end of the year, 1357 B. S. The court of appeal below repelled the contentions by the plaintiff appellant with the following observations:- (1) 'the learned Munsif has found that the notice (Ext. 1) was defective and bad in law. It did not fulfill the requirements of section 75 of the West Bengal Non-Agricultural Tenancy Act. (XX of 1949). The ground taken in the notice to quit was not that the defendant was rendering the land unfit for use for the purpose of the tenancy, but the ground taken in it was that the plaintiff required the land for his own purpose. Even assuming that section 75 of the said Act is not applicable to such a notice. I am of opinion that the notice is bad and illegal for another very cogent reason. The notice (Ext. 1) itself shows that the Meadi lease for 5 years commencing from the month of Agrahayan 1346 B. S. ended with the expiry of the month of Kartick, 1351 B. S. Thus the notice itself clearly indicates that the year of the tenancy was from Agrahayan to Kan-tick and not from Baisakh to Chaitra. But the notice (Ext. 1) sought to terminate the tenancy of the defendant on the expiry of the month of Chaitra, 1357 B. !s. and not on the expiry of the year of the tenancy in Kartick of that year. The provisions of section 9 (1) (b) read with clause (iii) indicate that a non-agricultural tenant holding without a lease in writing cannot be liable to ejectment on the ground that the tenancy has been terminated by the landlord by six months' notice in writing, unless the notice to quit is given asking the tenant to vacate on the expiry of the end of the year of the tenancy. In this case the plaintiff clearly gave a wrong notice seeking to terminate the tenancy on the expiry of Chaitra, 1357 B. S. instead of the expiry of the year of tenancy which ended in Kartick." (2) "moreover the plaintiff cannot take advantage of his own wrong. It was equally the duty of the landlord and the tenant to execute the lease (Ext. 4) according to provisions of section 107 of the T. P. Act. But the plaintiff having failed to do so the defendant tenant was entitled to protection under section 53a of it". (3) "then there is ample evidence on the record that the defendant has made substantial pucca structures upon the suit land, and the plaintiff landlord never objected to them. Therefore the plaintiff could not evict the defendant without paying compensation according to proviso to section 9 (1) (b) read with clause (iii) of it. " In the view that the learned court of appeal below took of the matter, it dismissed the appeal. It is the appellate decree against which this appeal has been preferred. 7. MR. Chandra Narayan Laik, learned Advocate for the appellant, relied on the judgment of P. N. Mookerjee, J. in the case of Indra Moni Dasi v. Snehalata Dutt (1) (59 C. W. N. 1150) and argued that the unilateral Kabuliyat executed by the lessee alone, could not be considered to be a lease under section 107 of the Transfer of Property Act. As a lease for five years under the Transfer of Property Act could only be made by a registered instrument signed by both the parties, the lessor and the lessee, the express contractual lease in the present case did not take effect in law. But by admitted payment and receipt of rent, according to the Bengali calendar month, a monthly tenancy came into being in favour of the tenant defendant under the plaintiff landlord. Section 53a of the Transfer of Property Act Mr. Laik further argued, would be of no application, because the term of the tenancy, sought to be fixed under the Kabuliyat, expired long ago. 8. I agree that the position in law is such as Mr. Laik argues. Therefore, the defendant's tenancy was one from month to month according to the Bengali calendar. Laik further argued, would be of no application, because the term of the tenancy, sought to be fixed under the Kabuliyat, expired long ago. 8. I agree that the position in law is such as Mr. Laik argues. Therefore, the defendant's tenancy was one from month to month according to the Bengali calendar. But admittedly the tenancy being one governed by the West Bengal Non-Agricultural Tenancy Act of 1949, a question arises as to how should the notice to quit be given Section 9 of the West Bengal Non-Agricultural Tenancy Act deals with termination of tenancy by notice. The relevant portion of the aforesaid section is quoted below: "9 (1). Notwithstanding anything contained in any other law for the time being in force or in any contract, if any, non-agricultural land has been held for a term of more than one year but less than twelve years- (a. . (b) without a lease in writing, or (c. then the tenant holding such non-agricultural land shall be liable to ejectment on one or more of the following grounds and not otherwise, namely:- (i. . . (ii. . . (iii) on the ground that the tenancy has been terminated by the landlord by six months' notice in writing expiring with the end of a year of the tenancy served on the tenant in the prescribed manner in the case of tenancies of the class specified in clause (b)". 9. ADMITTEDLY the notice given in the present case was one for six months ending with the expiry of Bengali calendar year 1357 B. S. The tenancy as appears from Kabuliyat, Ext. 4, started from the month of Agrahayan, 1356 B. S. The question, therefore, is whether such a notice was a good notice. 10. MR. Laik argued that where a non-agricultural tenancy was one from month to month, there could not be any notice served terminating the tenancy with the end of the year of the tenancy, because in such a case there would be no year of the tenancy. Therefore such a tenancy would be determined by service of six months' notice terminating on any month of the tenancy. I am unable to accept this argument. There is nothing in the West Bengal Non-Agricultural Tenancy Act which excludes from its operation monthly tenancies such as the present one is. Therefore such a tenancy would be determined by service of six months' notice terminating on any month of the tenancy. I am unable to accept this argument. There is nothing in the West Bengal Non-Agricultural Tenancy Act which excludes from its operation monthly tenancies such as the present one is. Thus in a case like the present; one notice terminating the tenancy must be six months' notice expiring with the year of the tenancy, that is to say, anniversary of the month of the tenancy in the next succeeding year. 11. ON the point that the provisions of section 9 (1) (b) clause (iii) of the West Bengal Non-Agricultural Tenancy Act shall apply even in a case of a monthly tenancy there are two unreported decisions of this Court, one by Das Gupta and Guha, JJ. in S. A. No. 879 of 1950 (2) (Sudhindra Nath Roy v. Ear an Chandra Mistry) delivered on January 25, 1955 and the other by Das Gupta and Bachawat, JJ. in S. A. No. 425 of 1952 (3) (Narayan Chandra Sen v. Sripati Charan Kumar) delivered on August 9, 1955. From the judgment in S. A. No. 879 of 1950 I quote a relevant extract: "but says, Mr. Mukherjee, that six months' notice in writing expiring with the end of a year of the tenancy is wholly impossible in a case of this nature where the tenancy has been found from month to month. It is argued that when the legislature speaks of a year of a tenancy, it cannot but have contemplated a tenancy from year to year. In my judgment, there is no substance in this contention. Certainly, if a tenancy is from year to year, there is no difficulty whatsoever in finding the year of the tenancy, but it is not right or reasonable to say that unless the tenancy is from year to year, no possible meaning can be attached to the six months' notice in writing expiring with the end of the tenancy. Even where the tenancy is from month to month, 12 months will make a year and when the 12th month has expired, a year of the tenancy has expired. Even where the tenancy is from month to month, 12 months will make a year and when the 12th month has expired, a year of the tenancy has expired. The more fact that the words 'year of the tenancy' may not ordinarily be used in connection with a tenancy from month to month is, therefore, no reason to hold that in using the words 'six months' notice expiring with the end of a year of the tenancy', the legislature must have in mind only tenancies from year to year. If such were the intention of the legislature I have no doubt that proper words would have been used to say clearly that the provisions will apply only to tenancies from year to year. What the legislature has provided is that if any non-agricultural land has been held for a term more than one year, but less than 12 years without a lease in writing, the tenant holding such non-agricultural land shall be liable to ejectment only on the ground that the tenancy has been terminated by a six months' notice in writing expiring with the end of a year of the tenancy served by the landlord in the prescribed manner. " 12. THE other judgment in S.A. No. 425 of 1952, (3) followed the aforesaid observations. The aforesaid two decisions, being Division Bench judgments are binding on me. Applying the principle contained in the aforesaid two decisions I am bound to hold that the notice in the instant case was bad. because it was not for six months expiring with the year of the tenancy, that is to say, expiring with the anniversary of the expiration of the month of the tenancy. I, therefore, affirm the decision by the lower appellate court and dismiss this appeal with costs. Mr. Laik prays for leave to appeal under Clause 15 of the Letters Patent. I grant the leave.