Tinkari Kundu v. Baruni Bala Dassi — 1962 DIGILAW 79 (CAL)

JUDGMENT 1. THIS second appeal which is by the plaintiff in a suit for ejectment under the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) raises an interesting question regarding interpretation of the expression "commencement of the Transfer of Property Act. 1882", in sec. 7 of that Act. 2. THE plaintiff's case is that the defendant took settlement of the land in question from the plaintiff's father from the first Baisakh 1343 B. S. at an annual rental of Rs. 9/- payable according to the Bengali calendar year and had been in possession thereof by raising temporary structures thereon. After the death of the plaintiff's father there was amicable partition between the plaintiff and his co-sharers and the plaintiff became entitled to realise the entire rent from the 1st Baisakh 1361 B. S. The defendant defaulted in payment. She did not pay the rent in spite of repeated reminders. Ultimately notice was served upon her to vacate the disputed property with the expiry of the Bengali year 1362 B. S. The defendant did not comply and, therefore, the plaintiff was compelled to bring the suit out of which this appeal has arisen. The defendant filed a written statement and alleged that she was not liable to be ejected under the provisions of the West Bengal Non-Agricultural Tenancy Act. The defendant claimed to have been in possession of the land for more than twelve years. The learned Munsif who tried the suit gave the plaintiff a decree for recovery of arrears of rent but dismissed his claim for ejectment. On appeal the learned Subordinate Judge who heard the appeal affirmed the judgment and decree of the learned Munsif but on grounds other than those given by him. 3. THE Chandernagore (Merger) Act, 1954 (Act XXXVI of 1954) came into force on the second day of October, 1954. Sec. 3 (1) of the Act is quoted below :- "as from the appointed day Chandernagore shall form part of the State of West Bengal and the boundaries of that State shall be so altered as to comprise within them the territory of Chandernagore. " 4. THE appointed day under the Act is the 2nd day of October, 1954. Sec. 3 (1) of the Act is quoted below :- "as from the appointed day Chandernagore shall form part of the State of West Bengal and the boundaries of that State shall be so altered as to comprise within them the territory of Chandernagore. " 4. THE appointed day under the Act is the 2nd day of October, 1954. Sec. 17 of the Act is quoted below :- "all laws which immediately before the appointed day extend to, or are in force in the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, come into force in, Chandernagore. " Chandernagore (Assimilation of Laws) Act, 1955, (West Bengal Act IV of 1955) came into force immediately on the Chandernagore (Assimilation of Laws) Ordinance, 1954, ceasing to operate. In this Act also the appointed day means the 2nd day of October, 1954. Sec. 3 of this Act is word for word the same as sec. 17 of the Chandernagore (Merger) Act, 1954. The West Bengal Non-Agricultural Tenancy Act was found not to be an Act applicable generally all over West Bengal. It was limited in its application to parts of West Bengal. Therefore, as some difficulties arose, the Chandernagore (Assimilation of Laws) Act, was amended by West Bengal Act V of 1959, the Chandernagore (Assimilation of Laws) (Amendment) Act, 1959. By this amendment a new section was inserted namely sec. It was limited in its application to parts of West Bengal. Therefore, as some difficulties arose, the Chandernagore (Assimilation of Laws) Act, was amended by West Bengal Act V of 1959, the Chandernagore (Assimilation of Laws) (Amendment) Act, 1959. By this amendment a new section was inserted namely sec. (8) which is quoted below:- "notwithstanding anything to the contrary, in any judgment or decision of any court, tribunal or authority, the following Acts, that is to say,-The West Bengal Land Development and Planning Act, 1948, the West Bengal Non-Agricultural tenancy Act, 1949 and The West Bengal Estates Acquisition Act, 1953 shall extend to and be deemed always to have extended to Chandernagore with effect from the appointed day." Sec. 7 of the West Bengal Non-Agricultural Tenancy Act (XX of 1949), so far as is necessary for the purpose of this appeal, is quoted below:- "notwithstanding anything contained in any other law for the time being in force or in any contract- (1) if any non-agricultural land has been held with or without any lease having been entered into by the landlord and the tenant from before the commencement of the Transfer of Property Act, 1882 (IV of 1882), or if the origin of any tenancy is unknown ; or (2) if the non-agricultural land comprised in any tenancy which has been or is created after the commencement of the Transfer of Property Act, 1882, has been held for a term of not less than twelve years without any lease in writing ". 5. THE relevant portion of sec. 90 of the Act is quoted below:- "if any non-agricultural, land has been held by a tenant from 'before the commencement of the Bengal Non-Agricultural. Tenancy (Temporary Provisions) Act, 1940- (c) without a lease in writing, then in calculating for the purpose of sec. 7 the period for which such land has been held by such tenant,- (i) in the case where the land has been held under a lease in writing and the time limited by such lease has expired at any time during the continuance in force of the said Act, the period for which such land has been held during such continuance after the expiration of the time limited by such lease, and (ii) in other cases, the period for which the said Act has been in force, shall be excluded. " 6. " 6. IT was argued on behalf of the tenant before the lower appellate court that in view of the provisions of the Chandernagore (Merger) Act, the date of commencement of the Transfer of Property Act in Chandernagore would be the 2nd of October, 1954 and that, therefore, the tenancy in question in this case would be a tenancy created before the commencement of the Transfer of Property Act and, therefore, the provisions of the West Bengal Non-Agricultural Tenancy Act would not apply. Oh the other hand it was argued on behalf of the plaintiff-landlord that the date of commencement of the Transfer of Property Act was the 1st July 1882 and that, therefore, the tenancy was a tenancy which was created after the commencement of the Transfer of Property Act. The learned Subordinate Judge held that in either case the tenant would be protected. What the learned Subordinate Judge observed in his judgment is, "the first point urged before me in the appeal was that as the Transfer of Property Act was extended to Chandernagore only from 2-10-54 the defendant was not entitled to the benefit of sec. 7 (2) of the West Bengal Non-Agricultural Tenancy Act and was not entitled to compute her period of possession prior to 2-10-54 to claim protection from eviction under that section. Now, it is not disputed that both the Transfer of Property Act and the West Bengal Non-Agricultural Tenancy Act came into force in Chandernagore from 2-10-54. But here it is admitted in the plaint that the land in question is a non-agricultural land and the defendant took settlement of the same for non-agricultural purposes from 1st Baisakh 1343 B. S. So if the words 'the commencement of the Transfer of Property Act, 1882' occurring in sec. 7 of the West Bengal Non-Agricultural Tenancy Act be interpreted to refer to the date (i.e., 2-10-54) when the said Act was extended to Chandernagore, the tenancy in question cannot be deemed to have been created after the commencement of the Transfer of Property Act and as such the provisions of sec. 7 (2) cannot have any application to the said tenancy, those provisions being applicable only to a tenancy which has been or is created after the commencement of the Transfer of Property Act, 1882. To my mind, the words 'commencement of the Transfer of Property Act, 1882' occurring in sec. 7 (2) cannot have any application to the said tenancy, those provisions being applicable only to a tenancy which has been or is created after the commencement of the Transfer of Property Act, 1882. To my mind, the words 'commencement of the Transfer of Property Act, 1882' occurring in sec. 7 of the West Bengal Non-Agricultural Tenancy Act referred to the date when the Transfer of Property Act of 1882 originally came into force in other parts of India, that is, 1st day of July 1882. That being so, the possession of, the defendant in the suit land which is admittedly a non-agricultural land was certainly for a term of more than 12 years and as such she was entitled to the benefit of protection under sec. 7 (2) of the West Bengal Non-Agricultural Tenancy Act. Even if it be construed that the words 'the commencement, of the Transfer of Property Act, 1882' as occurring in sec. 7 of the West Bengal Non-Agricultural Tenancy Act refer in this case to the date when the T. P. Act actually came into force in Chandernagore the defendant becomes entitled to protection from eviction under sec. 7 (1) of the West Bengal Non-Agricultural Tenancy Act as in that case she must be deemed to have been in possession of the suit land from before the commencement of the Transfer of Property Act. " The crucial point for determination in this second appeal is what is the date of commencement of the Transfer of Property Act in Chandernagore. For the answer to this question the Chandernagore (Merger) Act, 1954 and the West Bengal (Assimilation of Laws) Act, 1955 have to be referred to. The former Act is an Act to provide for the merger of Chandernagore into the State of West Bengal and for matters connected therewith. The preamble of the Chandernagore (Assimilation of Laws) Act, 1955, is "whereas it is expedient to provide for the assimilation of certain laws in force in Chandernagore to the laws in force in the rest of West Bengal". By sec. 3 of the Central Act Chandernagore formed part of West Bengal from the 2nd day of October, 1954. The preamble of the Chandernagore (Assimilation of Laws) Act, 1955, is "whereas it is expedient to provide for the assimilation of certain laws in force in Chandernagore to the laws in force in the rest of West Bengal". By sec. 3 of the Central Act Chandernagore formed part of West Bengal from the 2nd day of October, 1954. The object of the State Act was to assimilate the laws in force in Chandernagore to the laws in force in the rest of West Bengal, in other words, the object was to make the laws similar in Chandernagore and West Bengal. That meant that whatever the law was in West Bengal was also the law in Chandernagore. Therefore, clearly for the purpose of sec. 7 of the West Bengal Non-Agricultural tenancy Act the date of commencement of the Transfer of Property Act would be the 1st July, 1832. Similarly the date of commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 in Chandernagore, was the 30th May, 1940. The tenancy in question in this case which was created on the 14th April, 1986 is, therefore, a tenancy which was created after the commencement of the Transfer of Property Act. That being so, the provisions of sec. 90 regarding computation of the period for which a non-agricultural land has been held would apply. The period to be deducted under sec. 90 would accordingly be eight years eleven months and six days. On the date of the commencement of the suit, that is, the 6th July 1956, the tenant's possession covered a period of twenty years two months and twenty two days. From that period the period of eight years eleven months and six days has to be deducted. According to that calculation the defendant was in possession for eleven years three months and sixteen days on the date of the institution of the suit; in that view of the matter the tenant is not entitled to any protection against eviction. This is not a tenancy the land of which has been held from before the commencement of the Transfer of Property Act nor is it a tenancy the origin of which is unknown; therefore the provisions of sec. 7 (1) do not apply. The provisions of sec. This is not a tenancy the land of which has been held from before the commencement of the Transfer of Property Act nor is it a tenancy the origin of which is unknown; therefore the provisions of sec. 7 (1) do not apply. The provisions of sec. 7 (2) also do not apply because the tenancy has not been held by the tenant for a term of not less than twelve years without a lease in writing. 7. IN the result the decisions of the courts below cannot be supported. The appeal is allowed and the judgments and decrees of the courts below are set aside. The parties will bear their own costs throughout. The defendant shall be ejected from the disputed land on payment of such reasonable compensation as may be agreed upon between the landlord and the tenant or, if they do not agree, as may be determined by the trial court on the application of either the landlord-plaintiff or the tenant-defendant. Let this matter go to the trial court for drawing up a decree after complying with the directions given above. Leave to appeal under cl. 15 of the Letters Patent is asked for and granted.