Anil Kumar Ghosh v. Durgamoni Dassi — 1986 DIGILAW 169 (CAL)

JUDGMENT 1. THIS appeal is directed against the judgment and decree passed by the Subordinate Judge, 1st Court, Hooghly on 20th May, 1971 affirming the judgment and decree of the Munsif, 2nd Court, Serampore dated 30th march, 1970. 2. FOLLOWING are the facts : - "the defendant is a non-agricultural under-tenant in the suit property at a monthly rental of Rs. 10/ -. The defendant took the settlement in Jaistha, 1369 B. S. and the year of tenancy is from 1st Jaistha upto the last day of the month of Baisakh every year. As the defendant under-tenant defaulted in paying rent and as the plaintiff required the suit property for her own use and occupation, a notice to quit was served on the defendant who accepted the notice by signing the postal acknowledgement on 8. 8. 68 corresponding to 2 3rd Sravan, 1375 B. S. By the notice the defendant was asked to quit and vacate on the expiry of the last day of the month of Baisakh, 1 376 B. S. As the defendant did not quit and vacate, the suit for eviction and for arrears of rent and mean profit against the defendant was filed by the plaintiff. The defendant challenged the legality and validity of the notice contending that the year of tenancy was from 4th jaistha of the Bengali year to 3rd Jaistha of the following bengali year. It was also contended that one Subodh Kumar ghosh was the real tenant and he was merely a name lender. 3. THE learned trial court considering the whole evidence on record found the tenancy to be from 1st Jaistha of the bengali year to the last day of Baisakh of the following Bengali year. He also found the notice to quit to be valid and sufficient and granted the decree for eviction and also arrears of rent and mease profits. 4. BEING, aggrieved the defendant preferred an appeal, before the Ld. District Judge, Hooghly and the learned Subordinate judge, 1st Court Hooghly who heard the appeal, affirmed the trial court's judgment and decree. Being aggrieved, the defendant has preferred the instant second appeal before this court. It is contended that the findings of the courts below that the notice is valid and that the defendant was the real tenant are perverse and liable to be set aside. Being aggrieved, the defendant has preferred the instant second appeal before this court. It is contended that the findings of the courts below that the notice is valid and that the defendant was the real tenant are perverse and liable to be set aside. It is further contended that appellant has acquired a non-ejectable right in the property in suit under nection 7 of the W. B. Non-Agricultural Tenant Act, 1949 and the defendant is not liable to be evicted under the proviso to section 20 of the West Bengal Non-Agricultural Tenancy act, 1949. Therefore, it is submitted that the decree for eviction and for mesne profits is liable to be set aside. The decree for arrears of rent has not however, been challenged. 5. ON behalf of the respondent it is contended that the findings of both the courts below are proper and are not liable to be set aside in this second appeal. It is further contended that the appellant is not entitled to raise for the first time in this second appeal that the tenancy of the appellant has become non-ejectable in view of section 7 of the West bengal Non Agricultural Tenancy Act. 6. AS regards the first contention of the appellant that the notice is invalid on the ground that the tenancy commenced with of feet from 4th Jaistha, 1964 B. S., I am of the view that both the courts below on perusing the evidence on record found the tenancy to commence from 1st Jaistha, 1364 B. S. Before the trial court, a chit (ext. D) purported to have been reigned by Gopal Chandra Dutta for and on behalf of the plaintiff respondent was proved. The Ld. trial court on considering the whole evidence on record disbelieved the said ext. D declaring, it to be a fictitious document. Gopal Chandra Dutta also denied the same to be executed by him. The court of appeal below also accepted the said finding. That being a finding of fact, I do not find anything to show that the said finding of fact is in any way perverse. Therefore, I am not willing to interfere with that finding of fact. So the first contention of the appellant fails. The court of appeal below also accepted the said finding. That being a finding of fact, I do not find anything to show that the said finding of fact is in any way perverse. Therefore, I am not willing to interfere with that finding of fact. So the first contention of the appellant fails. The second contention of the appellant is that when P. W. 1 has in his evidence admitted that the present defendant was the name lender and Subodh Kumar Ghosh was the actual tenant, the Ld. Court, below was wrong on the face of that evidence to come to any other finding. I have gone through the whole evidence on record. Though there is such a statement of the plaintiff's son, yet there were other materials on record including the evidence of one of the defendant's witnesses which proved that the defendant was the real tenant. Moreover, in the previous ejectment suit which was filed by the respondent treating the present appellant as a premises tenant, and which suit was dismissed on that ground, no such plea was taken. There was a previous money suit being Money Suit No. 6 of 1 964 filed by. the respondent against the present appellant for recovery of arrears of rent and the said suit was decreed on admission. At that stage also no such plea was taken that the defendant was not the real tenant but a mere name Lender. In view of the above facts and circumstances disclosed, the findings of fact arrived at by the lower courts that the defendant was a real tenant cannot be disturbed. Therefore, this contention also fails. 7. THE main contention of the appellant before this court is that the defendant has acquired a non-ejectable right having possessed the suit property as a non agricultural under-tenant for a period of 12 years and in view of clause (i) of such section (5) of section 7 of the West Bengal Non Agricultural tenancy Act, 1949, he shall not be liable to be ejected except on the ground that he has used the land in a manner which renders it unfit for use for the purpose of tenancy and therefore the present suit for eviction under proviso to section 20 of the Act is not maintainable. 8. 8. BEFORE going into the merits of the case I would like to dispose of the preliminary objection raised by the learned advocate for the respondent that the present appellant is not entitled to take this plea in the second appeal. In support of his contention, he refers to the decision reported in AIR 1970 SC 839 . In the said decision the Supreme Court has held that the appellant in a second appeal cannot raise for the first time that the tenancy was for manufacturing purpose when that point was not taken in the writer, statement because the contention that the tenancy was for manufacturing purpose requires evidence to be considered. I find from the Supreme court's decision that even though the Supreme Court observed that there was substance in the argument of the appellant that the High Court should, not have allowed the respondent to raise the question as to whether the tenancy was for manufacturing purpose for the first time in second appeal but. the Supreme Court assumed that the respondent could have taken that objection without any specific plea in the written statement and came to the finding that the purpose of the lease was not predominantly for manufacturing purpose. What is gathered from the above deed on is that ordinarily when a point, which was a mixed question of law and fact and which requires evidence to be taken should not be taken for the first time in second appeal. On behalf of the appellant a decision of the Privy Council reported in AIR 1932 PC 118 (Official Liquidator vs. Burjorjee) has been cited. In that decision the Privy Council has observed that when a question of law is raised for the first time in a Court of last resort upon construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea. It is submitted on behalf of the appellant that the plea which he has raised in this Court is based upon facts which has been admitted by the plaintiff in the plaint and which has been proved beyond controversy by the notice of ejectment served upon the present appellant and no new evidence is required to be taken to consider this point. It is, therefore, contended that the present contention can be raised in the second appeal. In my view the appellant is competent to raise the point of law based on the proved and admitted facts. 9. THE appellant submits before this court that a non-agricultural under tenant becomes non ejectable under section 7 of the act if he remains in possession for a period of 12 years, that the notice to quit clearly indicated that the tenancy was to continue till the last day of Biasakh 1376 b. S., that on the last day of Baisakh 1 376 B. S. the appellant completed 12 years as a non agricultural under tenant and consequently he is entitled to protection under section 7 and only the ground that he has used the property in a manner which renders it unfit for the purpose of the tenancy is available to the landlord to evict him and that when the present suit for ejectment is not on that ground but is founded on the proviso to section 20 of the Act, the present suit for eviction is liable to be dismissed. 10. I have carefully perused the plaint and the notice of ejectment. It has been clearly staged in the plaint that the tenant was asked to continue in the suit property till the expiry of the month of Baisakh, 1376 B. S and to deliver vacant possession only on 1st Jaistha 1376 B. S. The notice to quit also shows that the tenant was directed to occupy as tenant till the end of Baisakha 1 376 B. S. and to deliver up vacant possession 1st Jaistha 1376 B. S. and it was declared that the possession of the defendant appellant with effect from 1st Jaistha, 1376 B. S. would be that of a trespasser. So according to allegations made in the plaint and the averments made in the notice to quit, the tenancy was to continue till last day of Baiskh 1376 B. S I find from the judgment of the first appellate court that the appellate court affirmed the views expressed by the learned trial court that as the notice was served upon the defendant prior to the expiry of the period of 12 years from the date of inception of the tenancy, the tenant has not acquired any non-ejectable right. But I am of the view that the court of appeal below was clearly in error in taking that view. The tenancy is terminated only from the expiry of the period of notice. In this particular case the law provides for the landlord to give a notice of not less than six months expiring with the year of the tenancy to the non-agricultural under-tenant to obtain the order of eviction under proviso to section 20 of the Act. So the contractual tenancy shall continue till the date of expiry of six months ending with the year of tenancy. In this particular case six month's notice ending with the year of tenancy has been given and the contractual tenancy must be held to have continued till the last day of Baisakh, 1376 B. S. That the tenancy continues till the- fast day of the period of notice is also the view of the Supreme Court in Bhaqawandas Agarwal vs. Bhagwandas Kanu, AIR 1977 SC 1120 . In that view of the matter, the contractual tenancy of the defendant continued till the end of Baisakh, 1376 B. S. It is also an admitted fact that on the last day of Baisakh, 1 376 B. S. the appellant completes 12 years as a non-agricultural under-tenant. In view of section 22 of the Act, the provision of section 7 is attracted to non-agricultural under-tenant and the non-agricultural under-tenant shall have all the rights and liabilities of a tenant as stipulated in section 7 of the Act. In that view of the matter, when a non-agricultural undertenant by remaining in possesion for not less than 12 years acquires a non-ejectable right and cannot be ejected except on the ground that he has used the land in a manner which renders it unfit for use for the purpose of tenancy and when this is not a suit for eviction on that ground, the present suit for eviction is liable to be dismissed. In the result, the appeal against the decree for eviction and for mesne profits is allowed. The judgment and decree of the courts below are modified. The decree for mesne profits and eviction is set aside. The decree for arrears of rent shall stand. The plaintiffs suit be decreed in part with proportionate costs. There will be no order or costs in this appeal. Appeal allowed.