Uma Kanta Das Mahajan v. Tribeni Prasad Kalwar — 1973 DIGILAW 34 (GAU)

Judgement JUDGEMENT :- This second appeal arises out of a suit instituted by Uma Kanta Das Mahajan for eviction of Tribeni Prasad Kalawar from a piece of land which had been let out by the former to the latter on 20th May, 1955. for a period of three years until 20th May, 1958. The suit for eviction was preceded by a notice calling upon the defendant to vacate the land on 20th November, 1960. The defendant resisted the prayer for his eviction on the grounds that the eviction notice served on him was defective in law. and that since he had set up structures on the land he could be evicted only on the ground of non-payment of rent, a fact not alleged by the plaintiff. This latter plea was founded on Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, hereinafter called the Act. The trial Court settled a number of issues between the parties and after examining the evidence led before it decreed the suit by its judgement dated 22-4-1965. The defendant challenged the decree of the trial Court by taking the matter in appeal to the court of the Assistant District Judge, Barpeta. The appeal was allowed on 6-4-1971 and the plaintiffs suit dismissed with the findings that the notice of eviction served on the defendant did not correspond with the provisions of Section 106 of the Transfer of Property Act and that since the defendant was not a defaulter in the matter of payment of rent, he was immune from eviction in view of the second proviso appended to Sub-Section (1) of Section 5 of the Act. This proviso was added in the year 1968 by the Assam Non-agricultural Urban Areas Tenancy (Amendment) Act, (Act XVI of 1968). 2. It is commonly admitted by the parties learned Counsel that the second proviso added by Act XVI of 1968 has been held to be void by a Full Bench decision of this Court and on that account the learned Assistant District Judge was not justified in holding that the defendant was immune from eviction for the reason that the landlord had not pleaded that the tenant had defaulted in the matter of payment of rent. 3. The two questions that fall for determination in this appeal, in my opinion, are (1) whether the notice Ext. 3. The two questions that fall for determination in this appeal, in my opinion, are (1) whether the notice Ext. 5 is valid in law, and (2) whether any permanent structures had been raised on the demised land, and if so, whether the defendant cannot be evicted in view of lack of any allegation that he had defaulted in the matter of payment of rent. 4. The notice Ex. 5 was served on the defendant on 25th October, 1960, and it called upon him to vacate the land by 20th Nov., 1960. It is the common case of the parties that the lease agreement Ext. 3 concluded between them on 20-5-55, permitted the defendant to continue as a tenant for a period of three years up to 20th May, 1958. The parties counsel are also agreed on the point that the tenancy in favour of the defendant continued for another two years after 20th May, 1958, which means that the tenancy continued until 20th May, 1960. Thereafter, the parties counsel are agreed, the tenancy became monthly, beginning with 21st of the month and ending with the 20th of the succeeding month. The notice Ext. 5, as stated earlier, called upon the defendant to vacate the land on 20th November, 1960. Sri Dam, the learned counsel representing the defendant, has urged vehemently that since the defendant had the right to continue in possession of the land until 12 P.M. of 20th November, and since the plaintiff called upon the defendant to vacate the land on the 20th November, itself, the notice fell short of the requirements of Section 106 of the Transfer of Property Act. That section states that every notice served on the tenant must be of fifteen days "expiring with the end of the month of tenancy". Undeniably, the tenancy was to end with the end of the day of 20th November, 1960, and it could not spill over even for a moment into 21st November, 1960. If therefore [the plaintiff called upon the defendant per notice Ext. 5 to vacate the land on 20th November, 1960. I cannot find any fault with the notice. The notice clearly meant that the defendant could avail of the whole day of 20th November and vacate the land before the dawn of 21st November. A Division Bench of this court held in the case of Ananta Ojha v. Osimuddin. 5 to vacate the land on 20th November, 1960. I cannot find any fault with the notice. The notice clearly meant that the defendant could avail of the whole day of 20th November and vacate the land before the dawn of 21st November. A Division Bench of this court held in the case of Ananta Ojha v. Osimuddin. AIR 1952 Assam 132, that the legal connotation of the expression "to quit on a particular day" is that the person required to quit can remain in occupation till the midnight of that day if he so desires, and that consequently where a month to month tenancy expires on the 30th September, a clear fifteen days notice to quit "on the 30th September" is a perfectly valid notice. Apart from the fact that I entirely agree with this decision of the High Court. I am also bound by it because sitting singly I cannot ignore it, it being a Division Bench decision. Sri Dam has invited my attention to one unreported judgement of the Supreme Court of which a reference is made on page 739 of the Encyclopaedia, Vol. 4 J to V, 1966. However, in my opinion that decision of the Supreme Court does not help advance the contention of Sri Dam. There the tenancy expired on the 9th of a month and the notice given was to vacate on "10th of May. 1946 (after 12 Oclock in the night)" The Supreme Court held that what the notice clearly meant was that the tenant should vacate the property on the midnight between 9th and 10th of May, 1946 and that as such the notice was valid. In our case too. as held by me above, the defendant could have retained the possession of the land until the last moment of 20th November, 1960, and nothing said in the notice deprived him of that privilege. At the same time, I feel clear that the defendant could not have retained. the land for a single moment after the day of 20th November, had run out. Consequently, I hold, in disagreement with the first appellate court, that the notice served on the defendant was valid in the eye of law. 5. This takes me to the consideration of the second point debated in this court and for establishing with the burden clearly rested on the defendant. Consequently, I hold, in disagreement with the first appellate court, that the notice served on the defendant was valid in the eye of law. 5. This takes me to the consideration of the second point debated in this court and for establishing with the burden clearly rested on the defendant. That point is founded on the provisions of clause (a) of Sub-Section (1) of Sec. 5 of the Act. That clause reads as under :- "Where under the terms of a contract entered into between a landlord and his tenant, whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of nonpayment of rent." 6. On its plain reading the clause means that the eviction of the tenant can be ordered on the ground only of nonpayment of rent if under the terms of the contract entered into between him and the landlord he is entitled to build, and hag in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or, alternatively, where he being not so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord. Sri Dam has not been able to satisfy me that the defendant had pleaded that he had raised permanent structures on the land pursuant to the terms of the contract entered into between him and the plaintiff. The whole of the written statement has been read in court by Sri Dam and I have not been able to find any allegation to that effect. However, Sri Dam insists that the case of the defendant is covered by the alternative mentioned in clause (a) of Sec. 5(1) of the Act. The whole of the written statement has been read in court by Sri Dam and I have not been able to find any allegation to that effect. However, Sri Dam insists that the case of the defendant is covered by the alternative mentioned in clause (a) of Sec. 5(1) of the Act. That too I have not been able to discern from the written statement. It is nowhere mentioned in the written statement that the permanent structures had been raised by the defendant, or even his predecessors, with the knowledge and acquiescence of the landlord. At the best, the written statement can be said to contain an allegation that the plaintiff had visited the land a number of times and he had seen the structures standing thereon. That pleading does not tantamount to saying that structures had been raised with the knowledge and acquiescence of the landlord. Therefore, on the authority of the pleadings of the defendant it is not possible to hold that he is entitled to the benefit of clause (a) of Section 5(1) of the Act. 7. There is yet another difficulty In the way of the defendant availing the benefits of Section 5(1) of the Act. We have the concurrent finding of the courts below that the permanent structures standing on the land save two verandahs (set up by the defendant after he had secured the lease dated 20th May, 1955) had been built sometime in the year 1934. It is clearly mentioned in the written statement that the lease of the land in dispute was for the first time taken by the father and uncle of the defendant in 1343 B. S. which corresponds with 1937 A.D. Sri Dam has submitted that the finding of the courts below that the permanent structures excepting two verandahs aforementioned had been built in the year 1934 is based only on the report of the commission issued by the trial Court and as such this court should be reluctant to agree with the finding of the courts. If the commission was appointed for ascertaining the present value of the structures standing on the land and if in formulating his opinion on that matter he had had to determine when the structures were raised for the first time, his finding about that point would be highly relevant and as such the court can take note of it. If the commission was appointed for ascertaining the present value of the structures standing on the land and if in formulating his opinion on that matter he had had to determine when the structures were raised for the first time, his finding about that point would be highly relevant and as such the court can take note of it. Further, the defendant himself has affirmed as P.W. 2 that the structures had been raised about 28/30 years ago. This statement was made by the defendant on 11-3-65. If we go back 30 years vis-a-vis that date then the structures must have been raised sometime in 1935. If the tenancy in favour of the defendants father and uncle had started in the year 1937 A.D. and the structures had been set up in the year 1935, then they could not have been raised in terms of the lease agreement. The defendant admitted in his statement as D.W. 2, I may usefully add, that they had erected, houses before the lease was granted. This statement knocks out completely the contention that the houses had been raised sometime after the year 1937, the year in which the first lease agreement was concluded. Therefore, I have no misgivings on the point that the defendant is not entitled to the protection of Section 5(1) of the Act except claiming some relief under Section 5(1)(b) respecting the two verandahs set up by him. Clause (b) states that where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be elected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant. 8. Sri J.N. Sarma, representing the plaintiff appellant, has conceded at the bar that the defendant is entitled to compensation respecting the two verandahs set up by him after he had concluded the lease agreement on 20th May, 1955 since, there is no definite date about the exact value of these two verandahs, I direct that that valuation shall be determined during the course of execution of the decree that shall follow this judgement. At this stage of the dictation Sri Dam states at the Bar that the value of the entire superstructures as assessed by the commission if the plaintiff agrees to pay to the defendant before he takes out execution of the decree then the superstructures shall belong to the plaintiff. Sri J.N. Sarma agrees to that proposal of Sri Dam. I am so happy about it because it would be clearly in national interest that the superstructures should not be demolished. 9. In the result I set aside the decree of the first appellate court and restore the decree made by the trial court on allowing this appeal. The plaintiff is given six months time from today for depositing in court the amount of Rupees 4290.00 fixed by the Commission, and after depositing the amount within that period he shall be entitled to evict the defendant from the land as also from the superstructures standing thereon. The defendant shall be entitled to withdraw the money only after the plaintiff has secured possession of the land with superstructures standing thereon. In the meantime the defendant is warned against damaging the superstructures in any manner. The plaintiff shall not be entitled to execute the decree unless he deposits the aforementioned sum of Rupees 4290.00 in court within the period stated above. Parties are left to bear their own costs in all the Courts. Appeal allowed.