Arun Kumar Ghose v. Kanai Kumar Roy — 1961 DIGILAW 118 (CAL)

JUDGMENT 1. This is a petition under article 227 of the Constitution arising out of an application by a landlord for eviction of a thika tenant under section 5 of the Calcutta Thika Tenancy Act, 1949. The property in suit consists of the back portion of land at No. 3, Mysore Road, Tollygunge. The property was allotted to one Amulya Chandra Ghose subject to the life interest of his mother sm. Probodh Kumari by the compromise decree in Title Suit No. 4 of 1939 in the Second Court of the Subordinate Judge, Alipore dated 20th March, 1939. 2. In June, 1950 opposite party No. 1 Kanai was the thika tenant of the property, the tenancy being from month to month according to the Bengali calendar. On the 14th June, 1950 Probodh Kumari served a notice on Kanai alleging inter alia that she required the land for building and re-building and requiring Kanai to quit and vacate the land on the expiry of Bhadra, 1357 B. S. On the 14th October, 1950 Probodh Kumari died. Amulya, her son, had predeceased her and consequently the suit land devolved upon the present petitioner Arun Kumar Ghose, who was the son and heir of Amulya Chandra Ghose. On the 22nd December, 1951 Arun Kumar instituted Title Suit No. 875 of 1951 in the First Court of the Munsif, Alipore against Kanai on the ground inter alia that he required the land or building and re-building. Sometime in 1954 the suit was transferred to the Third Court of the Munsif, Alipore and was marked as Title Suit No. 410 of 1954. By a kobala dated 1st August, 1954 Kanai transferred to Sushila, opposite party No. 2, his interest in the holding as a thika tenant together with the structures thereon. On the 11th January, 1955, Sushila was added as a party to the suit. On the 27th January, 1955 the learned Munsif passed an order that the plaint be returned to Arun Kumar's pleader for presentation to the Thika Controller. Pursuant to this order the plaint was returned to the pleader and was presented by him to the Thika Controller as an application under section 5 of the Calcutta Thika Tenancy Act against both Kanai and Sushila. On the 1st October 1956 the Thika Controller allowed the application and passed an order for ejectment in favour of the landlord, Arun Kumar against Kanai and Sushila. On the 1st October 1956 the Thika Controller allowed the application and passed an order for ejectment in favour of the landlord, Arun Kumar against Kanai and Sushila. Sushila preferred an appeal before the learned Subordinate Judge. By his order dated the 28th May, 1957 the Subordinate Judge allowed the appeal and set aside the order passed by the Thika Controller holding that (a) the Controller had no right to entertain the application under section 5 because the order dated the 17th January, 1955 was without jurisdiction and (b) that Arun Kumar could not claim ejectment on the basis of the notice served by Probodh Kumari and that in order to succeed Arun Kumar had to serve a fresh notice under section 4 of the Calcutta Thika Tenancy Act on the tenant. Mr. Sen on behalf of opposite party No. 2 strongly pressed both these points before us as also several other points. Both the tribunals below have concurrently found that Arun Kumar requires the land for building and rebuilding. Mr. Sen contended that this finding is erroneous and should be set aside. We are satisfied that the finding is not vitiated by any error of law and we see no reason to interfere with it. 3. Mr. Sen next contended that the real question which the Tribunal below should have decided was whether Probodh Kumari required the land for building and re-building and not whether Arun Kumar so required it. We are unable to accept this contention. When the present proceeding started Probodh Kumari war dead and there was no question of her then requiring the land. Arun Kumar was the landlord at the time of the institution of the proceeding and the question was whether he had made out the ground of his requirement for the building and re-building. 4. The contention that the Controller had no power to entertain the application under section 5 of the Calcutta Thika Tenancy Act because the order dated the 17th January, 1955 was without jurisdiction is baseless. I shall assume for a moment without deciding it, that the order dated 17th January, 1955 was an order which the learned Munsif was not competent to pass and was without jurisdiction. Nevertheless the fact remains that the plaint was returned to the landlord and the landlord presented the plaint to the Thika Controller as an application under section 5. I shall assume for a moment without deciding it, that the order dated 17th January, 1955 was an order which the learned Munsif was not competent to pass and was without jurisdiction. Nevertheless the fact remains that the plaint was returned to the landlord and the landlord presented the plaint to the Thika Controller as an application under section 5. The proceeding under section 5 was initiated when the petition in the form of a plaint was presented to the Thika Controller. The validity of the proceedings before the Thika Controller is in no way dependent upon the question whether or not the prior order dated 17th January 1955 was a valid order. A separate proceeding, which may well be treated as an independent proceeding, was initiated under section 5 on the 27th January, 1955. Some argument was made by Mr. Sen that the application under section 5 was not maintainable because the partition alleged that she was a trespasser and not that she was a thika tenant. There is no substance in this contention. This point was not raised in any of the Tribunals below. On the contrary, both sides fought the case on the footing that Sushila being the successor-in-interest of Kanai is a thika tenant within the meaning of section 2 (5) of the Act. Had the technical paint been taken before the Thika Controller. I have no doubt that suitable amendments in the petition would have been made. 5. The rest of the argument of Mr. Sen was focused on the question of the validity of the notice dated the 14th June, 1950. Mr. Sen contended that section 4 of the Calcutta Thika Tenancy Act does not dispense with the requirement of the notice to quit required by section 106 of the Transfer of Property Act. He urged that the notice dated the; 14th June, 1950 was only a notice under section 4 of the Calcutta Thika Tenancy Act and as no separate notice under section 106 of the Transfer of Property Act had been given the proceeding was liable to be dismissed. It is not necessary in this case to decide whether or not the provisions of sections 3 and 4 of the Calcutta Thika Tenancy Act, 1849 read together dispense with the requirement of a notice under section 106 of the Transfer of Property Act. It is not necessary in this case to decide whether or not the provisions of sections 3 and 4 of the Calcutta Thika Tenancy Act, 1849 read together dispense with the requirement of a notice under section 106 of the Transfer of Property Act. It is sufficient to say for the purpose of this case that the notice dated 14th June, 1950 is effective both as a notice under section 4 of the Calcutta Thika Tenancy Act as also as a notice under section 106 of the Transfer of Property Act. The notice dated the 14th June, 1950 gave the tenant three months' notice expiring with the month of the tenancy to quit and vacate the land. Such a notice was sufficient to terminate the tenancy under section 106 of the Transfer of Property Act. We are satisfied that assuming that a notice under section 106 of the Transfer of Property Act is necessary the same notice may operate as an effective combined notice both under section 4 of the Calcutta Thika Tenancy Act. 1949 and under section 106 of the Transfer of Property Act. 6. Mr. Sen next contended that the notice dated 14th June, 1950 was, if at all, effective only for the purposes of the suit, instituted on the 22nd December, 1951 and that on the virtual dismissal of that suit, the force of the notice was exhausted and that the landlord could not avail himself of its benefit when he instituted the fresh proceeding before the Thika Controller on the 27th January, 1955. I am unable to accept this contention. The notice did not lose its force, because some proceeding instituted on the strength of it was dismissed on the ground that the court had no jurisdiction to entertain the proceeding. The landlord may well institute a fresh proceeding on the basis of the self same notice without serving a fresh notice in a competent Tribunal. Mr. Sen next contended that Probodh Kumari was not the landlord and was not competent to give the notice required by section 4 of the Calcutta Thika Tenancy Act and section 106 of the Transfer of Property Act. We are unable to accept this contention. By the compromise decree in Title suit No. 4 of 1939 the back portion of the land of premises No. 3, Mysore Road was allotted to Amulya Chandra Ghose subject to the rights of Sm. We are unable to accept this contention. By the compromise decree in Title suit No. 4 of 1939 the back portion of the land of premises No. 3, Mysore Road was allotted to Amulya Chandra Ghose subject to the rights of Sm. Probodh Kumari. Clause 7 of the decree provided that Probodh Kumari would be entitled to the rents, issues and profits of premises No. 3, Mysore Road present, past or future during her life time subject to payment of all taxes and outgoings in respect thereof. Clause 8 of the decree provided that Probodh Kumari would be entitled to deal with and dispose of the back portion of premises No. 3, Mysore Road as an absolute owner by sale or otherwise if she sat any time desired or if any necessity, arose but that if she did not do so the same would belong to Amulya Chandra Ghose or his heirs absolutely. It is not necessary to consider in this case the contention of Mr. Sen that clause 8 of the compromise decree is repugnant to the vested reversionary rights of Amulya Chandra Ghose in the suit property. It is sufficient to say that by clause 7 of the decree Probodh Kumari became, during her life time, the land lord of the suit property within the meaning of the Calcutta Thika Tenancy Act, The word "landlord" is not defined in the Calcutta Thika Tenancy Act, 1949. Section 2 (6) of that Act provides that all words and expressions used but not defined in the Act and used in the Transfer of Property Act 1882, or the Bengal Tenancy Act, 1835, have the same meanings as in those Acts. Section 3 (6) of the Bengal Tenancy Act, 1885 provides that "land lord" means a person immediately under whom a tenant holds and includes the Government. Quite clearly during the life time of Probodh Kumari Dasi the tenant held immediately under Probodh Kumari Dasi. She was entitled to the rents, issues and profits of the property and as such she had the implied authority to induct tenants and to determine the tenancies of the existing and future tenants. During her life time the ownership of the property was vested in her and she was competent to give notice terminating the tenancy under section 106 of the Transfer of Property Act. 7. Mr. During her life time the ownership of the property was vested in her and she was competent to give notice terminating the tenancy under section 106 of the Transfer of Property Act. 7. Mr. Sen next contended that Arun Kumar himself was required to give a notice under section 4 of the Act before he could be said to be competent to eject the tenant and that he was incompetent to eject the thika tenant on the strength of the notice given by his predecessor-in-interest, Probodh Kumari. He drew our attention to the structure of section 4 and contended that before a "landlord" could be said to be competent to eject the thika tenant, the "landlord" must give the notice referred to in section 4. On a careful consideration of the matter, we have come to the conclusion that this contention ought not to be accepted. In cur opinion, it is reasonable to hold that the word "landlord" in section 4 of the Calcutta Thika Tenancy Act refers to the "landlord for the time being". It appears to us that if the landlord for the time being serves the notice referred to in section 4, not only the person giving the notice but also any other person who is the landlord for the time being can take advantage of the notice. In other words, the notice given by a landlord under section 4 of the Calcutta Thika Tenancy Act enures to the benefit of the successor-in-title of the person giving the notice. 8. Mr. Sen next contended that Sushila being the successor-in-interest of Kanai, became the thika tenant on the 1st August. 1954 long before the present proceeding before the Thika Controller was started and that unless a notice under section 4 of the Calcutta Thika Tenancy Act was served upon her, Arun Kumar Ghose was not competent to eject her. Again, we are unable to accept this contention. On the 14th June, 1950 the then landlord Probodh Kumari gave the notice referred to in section 4 to the then thika tenant, Kanai. Long thereafter Kanai transferred his holding to Sushila. In our opinion it was not necessary for the landlord to serve a fresh notice under section 4 on Sushila. It is reasonable to hold that the expression "thika tenant" in section 4 of the Calcutta Thika Tenancy Act refers to the "thika tenant for the time being. Long thereafter Kanai transferred his holding to Sushila. In our opinion it was not necessary for the landlord to serve a fresh notice under section 4 on Sushila. It is reasonable to hold that the expression "thika tenant" in section 4 of the Calcutta Thika Tenancy Act refers to the "thika tenant for the time being. " If the thika tenant for the time being is served with the notice under section 4 the landlord becomes competent to eject not only the thika tenant served with the notice but also his successor-in-interest. This disposes of all the contentions advanced before us by Mr. Sen. The petitioner-landlord is, there fore, entitled to the order for an ejectment. Our attention, however, has been drawn to certain defects in the order passed by the Thika Controller. We think that in lieu of the order passed by him the following order should be passed. 9. The Rule is made absolute and the judgment of the lower Appellate Tribunal is set aside. It is declared that the petitioner-landlord is entitled to eject the opposite parties. The amount of compensation payable under clause (ii) of the proviso to section 4 be determined by the Controller in accordance with law. If the amount so determined is either paid or deposited in accordance with section 5 (2) of the Calcutta Thika Tenancy Act the Controller shall allow the application and pass an order for ejectment of the opposite parties in accordance with law. Each party will bear and pay his own costs throughout.