I David v. State Bsnk of India Staff — 1970 DIGILAW 6 (CAL)

Judgment 1. THIS appeal is by the tenant-defendant. It arises out of a suit for ejectment under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The appeal is directed against the decree for ejectment, passed by the lower appellate Court on the ground of the plaintiff's reasonable requirement of the disputed premises after building and rebuilding. For the said purpose, the plaintiff filed a sanctioned plan, in which the proposed building and the rebuilding have been indicated. On the said plan and the evidence before the Court, the learned Judges in the court of appeal below came to the conclusion that the plaintiff reasonably required the disputed premises for its own use and occupation after building and rebuilding. 2. ON the materials before us, we are unable to say that the said finding is perverse or not justified by the evidence on record. The Court of appeal below also came to the conclusion, on due consideration of the different aspects of the matter, that, in the instant case, the balance of comparative advantage and disadvantage will entitle the plaintiff to a decree under the relevant statutory provision. We have no reason, on the materials before us, to differ from the said view of the lower appellate court. Mr. Mukherji, arguing this appeal on behalf of the appellant, contended that the plaintiff's case, on which the lower appellate court decreed its claim, is not to be found in the plaint. We have read the plaint and we are satisfied that there is no substance in the above contention of Mr. Mukherji. 3. MR. Mukherji also contended that the instant suit would fail by reason of the new Act (West Bengal Act xxxiv of 1969), section 4, sub-section (2), which, read With section 13, would be retrospective so as to apply to pending appeals. It is to be observed, however, that the said statute is an amending Act with reference to the West Bengal Premises Tenancy Act, 1956, and that it has no relevance as regards the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, with which we are here concerned. We, accordingly, reject this submission too of Mr. Mukherji. 4. IN the above view, this appeal will fail and it will be dismissed. We, accordingly, reject this submission too of Mr. Mukherji. 4. IN the above view, this appeal will fail and it will be dismissed. But, in the circumstances before us, we will grant the appellant time till the end of November next, within which time she must vacate the disputed premises and make over vacant and peaceful possession of the same to the plaintiff-decree holder, provided, however, that, in the meantime, she goes on depositing, in the trial court, to the credit of the plaintiff-decree-holder, a sum of Rs.88/- per month, month by month, regularly, according to the English calendar, within 15th of the next succeeding month, according to the same calendar. In default of any two of the above deposits, the above grace period will automatically lapse and the instant decree for ejectment will become executable at once. Subject as above, this appeal is dismissed. There will be no order for costs in this Court. Amiya Kumar Mookerji : I agree. (Appellate Civil Jurisdiction)P. N. Mookerjee, Murari Mohan Dutt, JJ. 1969, 25 November. Surendra Nath Koley Appellant v. Suhas Chandra Mitra Respondent. Transfer of Property Act IV of 1882 s. 116-Holding over, if voluntary assent required. Bengal Non-Agricultural (Temporary Provisions) Act 1940 (Bengal Act ix of 1940)-Section 9 (1) (a)-Lease expired on 1351 B. S.-Acceptance of rent upto 1355 B. S. during operation of Bengal Non-Agricultural (Temporary Provisions) Act, 1940-If landlord had any option-If voluntary assent inferable-If holding over under section 116 of Transfer of Property Act-Position of Tenant-If an ex-tenant after expiry of lease-If amenable to eviction under section 9 (1) (a) of the act. The plaintiff's case was that the disputed tenancy started under a lease for 9 years which expired in Aswin 1351 b. S. and after the expiry of the said lease, the defendant continued on the land under a monthly tenancy of which the year was according to the Bengali calendar or from Baisakh to chaitra. The language, used in the plaint for this purpose, was somewhat unhappy and inartistic but, reading the plaint as a whole, it may very well be inferred that the plaintiff's case on this point was really a case of new tenancy or novation of contract, stipulating the year of the tenancy according to the Bengali calendar. The language, used in the plaint for this purpose, was somewhat unhappy and inartistic but, reading the plaint as a whole, it may very well be inferred that the plaintiff's case on this point was really a case of new tenancy or novation of contract, stipulating the year of the tenancy according to the Bengali calendar. The defence was that the defendant occupied the disputed land as a tenant from a much earlier perid, namely, 1337 B. S. and, even if his tenancy be taken to have started under the aforesaid lease, after the expiry of the same in Aswin 1351 B. S. he held over on the same terms and conditions with the result that the year of the tenancy was from Kartick to aswin of the Bengali year. Held that holding over would require voluntary assent of the landlord which would not be inferable in the instant case. The plaintiff accepted rent upto the year 1355 B. S., but that was at a time, when the Bengal non-Agricultural (Temporary Provisions) Act 1940 (Bengal Act IX of 1940), was in operation and he had practically no option in the matter. From such acceptance, voluntary assent would not be inferable and, in spite of the plaintiff's inaccurate or inartistic language in the plaint that the defendant "held over'', that holding-over cannot have any legal effect. It was merely a statement of fact without any legal implication as consequence under section 116 of the transfer of Property Act, which governs the relationship between the parties in case of holding over under the law. The position would be that the defendant would be on the land as an ex-tenant after the expiry of his registered lease in Aswin 1351 B. S. and would thus be amenable to eviction under section 9 (1) (a) of the above Act. (Paras. 2, 3, 4 and 8. Case referred to : maya Chanda v. Mandadari sannamat, 64 CWN 448. The facts of the case will appear from the judgment. A. D. Mukherji and Barun Kumar roy Chaudhury for the appellant. Hemanta Krishna Mitra and nirendra Krishna Mitra for the respondent. The judgment of the court was as follows: -P. N. Mookerjee, J. : This is a defendant's appeal, arising out of a suit i'or ejectment under the West Bengal non-Agricultural Tenancy Act. The suit has been decreed by the three courts below. Hemanta Krishna Mitra and nirendra Krishna Mitra for the respondent. The judgment of the court was as follows: -P. N. Mookerjee, J. : This is a defendant's appeal, arising out of a suit i'or ejectment under the West Bengal non-Agricultural Tenancy Act. The suit has been decreed by the three courts below. Hence this appeal under clause 15 of the Letters Patent by the defendant. 2. The plaintiff’s case, inter alia, was that the disputed tenancy started under a lease for 9 years, which expired in aswin 1351 B. S. The plaintiff's case further was that, after the expiry of the said lease, the defendant continued on the land under a monthly tenancy, of which the year was according to the Bengali calendar or from Baissakh to chaitra. The language, used in the plaint for this purpose, was somewhat unhappy and inartistic but, reading the plaint as a whole, it may very well be inferred that the plaintiff’s case on this point was really a case of a new tenancy or novation of contract, stipulating the year of the tenancy according to the Bengali calendar. 5. THE defence was that the defendant occupied the disputed land as a tenant from a much earlier period, namely, 1337 B. S, and, even if his tenancy be taken to have started under the aforesaid lease, after the expiry of the same in Aswin 1351 B. S., he held over on the same terms and conditions with the result that the year of the tenancy was from Kartick to Aswin of the Bengali year. 6. IN the plaint, it was further stated that the defendant's above tenancy was terminated as required by law, vide section 9 (1) (b) (iii) of the above Act, by a proper six month's notice, expiring with the year of the tenancy according to the plaintiff, i.e. with the end of Chaitra. This notice was challenged by the defendant as illegal, invalid and ineffective, obviously, upon the plea, as stated above, that the year of his tenancy was from Kartick to aswin of a Bengali Calendar so that the above notice would not be a notice, expiring with the end of the year of the tenancy, arid would thus be an invalid notice. The three courts below have, however, accepted the plaintiff's case of a new tenancy or novation of contract with the year of the tenancy running from Baisakh to chaitra according to the Bengali calendar and, upon that view, they have concurrently held that the notice of ejectment in the instant case was a valid notice, sufficient for the purpose of the above statutory provision. Upon that view, the plaintiff's suit has been decreed by the three courts below. 7. BEFORE us Mr. Mukherji, appearing for the defendant-appellant, has contended that, on the plaint, as it stands, the case of a new tenancy or novation of contract would not be available to the" plaintiff. As we have already said, the relative language in the plaint was somewhat unhappy and inartistic, but, taking a broad view of the matter and reading the plaint as a whole, it may well be taken that the plaintiff's case in the plaint was a case of a new tenancy or novation of contract. In that view, we would reject the above submission of Mr. Mukherji in support of this appeal. 8. WE may also point out that, even if the case of a new tenancy, as pleaded by the plaintiff, be not accepted, the position would be that the defendant would be a trespasser from after the expiry of his lease in Aswin 1351 B. S. or a person, continuing in possession after the said period as a tenant, whose tenancy under the registered lease has expired. It is not possible, in the facts of this case, to accept any claim of holding over according to law as such holding over would require voluntary assent of the landlord, which would not be inferable in the instant case. The plaintiff, no doubt, accepted rent up to the year 1355 B. S., but that was at a time, when the Bengal Non-Agricultural (Temporary Provisions) Act 1940 (Bengal Act IX of 1940), was in operation and he had practically no option in the matter (vide, in this connection, Maya Chanda v. Mandu hari Sannamat, 64 CWN 448. From such acceptance, voluntary assent would not be inferable and in spite of the plaintiff's inaccurate or inartistic language in the plaint that the defendant "held over", that holding over cannot have any legal effect. From such acceptance, voluntary assent would not be inferable and in spite of the plaintiff's inaccurate or inartistic language in the plaint that the defendant "held over", that holding over cannot have any legal effect. It was merely a statement of fact without any legal implication as consequence under section 116 of the Transfer of property Act, which governs the relatonship between parties in case of holding-over under the law. The position, therefore, would be that the defendant would be on the land as an ex-tenant after the expiry of his registered lease in Aswin 1351 B. S. and would thus be amenable to eviction under section 9 (1) (a) of the above act. In either view, therefore, the decree for ejectment, passed in the instant case, will have to be affirmed, the plaintiff not having complained against the imposition of condition, as stipulated under the proviso to clause (iii) to section 9 (1) (b. In the premises, this appeal will fail and it will be dismissed. There will, however, be no order for costs in this appeal.