Ananta Kumar Saha vs Charu Chandra Mukherjee

P.N. Mookerjee, J.—This appeal arises out of a suit for ejectment, rent and mesne profits. The suit was dismissed by the trial court except for the claim for rent, the amount of arrears of rent appearing to have been deposited in court during the pendency of the suit in the trial court for obtaining stay of the same u/s 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. On appeal, the aforesaid decree of dismissal was set aside and the claim for ejectment also was allowed and the suit was decreed for ejectment with certain directions, the mesne profits and also the claim for rent being left to be determined by the trial court in a future proceeding. Against this appellate decree, the present appeal has been preferred by the Defendants Nos. 2 and 3, who were purchasers pendente lite of the interest of the original tenant, Defendant No. 1, against whom alone the suit was brought in the first instance.

The facts, relevant, for our present purpose, may now be stated briefly as follows:

The principal Defendant, who was Defendant No. 1 in the present suit, had a lease of the suit lands for a term of 9 years, under a lease dated February 26, 1932, at a rental of Rs. 30 annum. That lease under and by virtue of the above term, expired in February, 1941. Thereafter, however, the Defendant No. 1 continued in possession and, eventually on June 2, 1941, a notice was served upon him by the Plaintiff-landlords, directing him to give up possession by the end of June, 1941. This notice appears to have been disregarded by the tenant and, in consequence, the present suit was brought on February 13, 1945. At an earlier stage of this suit, a question arose whether, due to certain alleged dispossession of the tenant by the landlords, there would be suspension or abatement of rent, or whether the landlords would be entitled to rent and that, again, at the original rate and the court, having come to the conclusion that the plea of suspension or abatement would fail in the circumstances of this case, upheld the landlords'' right to recover rent at the original rate, and, in view of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, vide Section 3, the learned Munsif directed that, on deposit of the rent by the tenant, Defendant No. 1, the suit would remain stayed until the expiry of the said Act, in terms of the aforesaid section. The suit, thereafter, remained stayed, as aforesaid, but the stay order was eventually vacated on the expiry of the aforesaid statute and its replacement by the West Bengal Non-Agricultural Tenancy Act, 1949, and the suit was token up for trial. In the meantime, however, the tenant, Defendant No. 1 had transferred his interest to the pro forma Defendants Nos. 2 and 3, who were brought on the record at the instance of the Plaintiffs, and the suit proceeded against all the three Defendants on record. The contest, however, was eventually made by Defendant No. 2 alone and his plea was that, in the circumstances of the case, the original tenant, Defendant No. 1 had the protection of the West Bengal Non-Agricultural Tenancy Act, 1949, u/s 7(5) of that statute, inasmuch as, during the currency of his aforesaid tenancy, "pucca structures" had been erected on the suit land by him and had been allowed to be so erected by the landlords and that the said protection, which was available to the Defendant No. 1 at the date of the suit, was eventually, obtained by the transferees, pro forma Defendants Nos. 2 and 3, by their purchase pendente lite as aforesaid. It was, accordingly, contended that, in the present suit, the Plaintiff''s could not get any decree for ejectment in view of the aforesaid Section 7(5) of the West Bengal Non-Agricultural Tenancy Act, 1949. This plea was accepted by the learned Munsif and the Plaintiffs'' suit was dismissed, as we have stated earlier in this judgment.

The learned Subordinate Judge, before whom the Plaintiffs'' appeal came up for hearing, however, took a different view in the matter-not on the question that there were "pucca structures" on the said land, as claimed by the Defendants nor on the question that they were allowed by the landlords to have been constructed by the tenant (Defendant No. 1) but upon the view that, the tenant Defendant No. l''s tenancy having expired by efflux of time, in February, 1941, or at any rate, by reason of the notice to quit in June, 1941, at the date of the present suit or at the date of the 1949 Act, referred to above, or earlier, at the date of the transfer pendente lite to Defendants Nos. 2 and 3, the said tenant, Defendant No. 1 had become a trespasser and so, Defendants Nos. 2 and 3 also, who were mere transferees from him, could not claim to be in a better position and they also were trespassers and all the Defendants being thus trespassers at the date of the instant suit and/or at the time when the 1949 Act came into operation, they could not be regarded as non-agricultural tenants within the meaning of the said Act and could not, therefore, claim any protection there under. This, indeed, was the main or the substantial reason for the decision of the learned Subordinate Judge, decreeing the Plaintiffs'' claim for ejectment. The learned Subordinate Judge also disagreed with the learned Munsif on his other finding that, in the circumstances of this case, the tenant Defendant No. 1 could not be said to have been holding over after June 1941, and that finding of the learned Munsif also was expressly set aside.

In our opinion, it is not necessary for our present purpose, to consider this last noted finding aforesaid, on which the two courts have differed, and, in our view, on the facts proved or admitted in this case, the Defendants would be entitled to the protection u/s 7(5) of the West Bengal Non-Agricultural Tenancy Act, 1949. It is clear, from what we have stated above, that the Defendant No. 1 was admittedly, a tenant of the suit land, whose tenancy might have terminated either by efflux of time or by the notice to quit, in the year 1941. When, however, the suit was brought against him in the year 1945, it was brought against him as an ex-tenant in occupation of the suit land, after the expiry of his aforesaid tenancy. Under the Non-Agricultural Tenancy Act, 1940, and similar is the position under the Act of 1949 too, an ex-tenant whose tenancy has been determined, as aforesaid, and against whom, a suit for ejectment is brought as such ex-tenant, is a tenant within the meaning of either of the aforesaid statutes, vide Sm. Sukumari Dehi v. Rajdhari Pandey (1941) 46 C.W.N. 174: I. L. R. (1942), Cal. 497, and Bamapati Bhattacharjya and Others Vs. Sm. Laxshmi Bibi, , and he is entitled to protection under the said later statute, provided of course he can bring his case within one or other of the protective sections thereof. In view of the aforesaid decisions, the above position could not be disputed before us by Mr. Mookerjee and he did not make any attempt to support the opinion of the learned Subordinate Judge to the contrary. What he argued, however, was that, in the present case, the structures in question were not pucca structures within the meaning of the relevant definition Section 2(7) of the 1949 Act. According to Mr. Mookerjee, the structures, in the present case, which have been found by the Commissioner and to have pantile roofs and as to which finding, there is no dispute, cannot be regarded as "Pucca structures" in spite of the other admitted position that the floors, walls, etc., are all brick built and, therefore, "pucca" within the meaning of the said statute and the privy also is admittedly ''pucca''. Mr. Mookherjee contends that, on the above materials, the relevant test of the structures having been "constructed, mainly, of bricks, "cement or concrete or any combination thereof", as required by the said definition clause cannot be held to have been satisfied and, accordingly, the structures in suit, cannot be regarded, as "pucca structures" within the meaning of the aforesaid statute. Mr. Mookherjee lays stress upon the word "mainly" in the above statutory definition and says that, so far as the roof is concerned, it is one of the main and important parts of the structures and, if the roof be of pantile, the structures, cannot be said to be "pucca structures" within the meaning of the aforesaid statute. In the facts of this case, having regard to the above description and nature of the structures in suit, we are unable to accept Mr. Mookherjee''s contention. The test of a construction being mainly of bricks, etc., is amply satisfied by the above description and nature of the structures in question and, in our opinion, therefore, the Defendants'' claim for protection u/s 7(5) of the Act cannot be ruled out in the present case. We may add that this particular question was not raised before the lower appellate court and the learned Munsif''s findings that the structures in suit were ''"pucca" and had been allowed by the landlords to be constructed by the tenant, were not disputed or challenged before the learned Subordinate Judge. We do not think also that any of the Defendants, in the present suit, would be hit by the decision of this Court in Baidyanath Ghosh v. Bajranglal Surekha (1948) 53 C.W.N. 783, as in the said case, there was a clause in the relevant Kabuliat against assignment and it was, really, upon that clause, that the said decision was founded (vide in this connection, the later case of Babulal Benia v. Basudeb Das and another Unreported decision in S. A. No. 471 of 1959, dated December 5, 1952, where the said earlier decision was explained and distinguished). The transfer, in the present case, again, was a transfer pendente lite, so that, at the date of the suit, there could be no question that the Defendant No. 1 who was the only Defendant, then, was occupying the position of an ex-tenant and was none else than an ex-tenant and, so had, upon our above finding as to his structures on the suit land, the protection u/s 7(5) of the Act and that protection would not be lost by his transfer pendente lite (which is valid though subject to the result of the suit) but would pass on to the transferees.

In the above view, the aforesaid decision Baidyanath Ghosh v. Bajranglal Surekha (1948) 53 C.W.N. 783 (supra), is distinguishable and it does not, in our opinion, operate to the prejudice of the Defendants.

We would, accordingly, allow this appeal, set aside the judgment and decree of the learned Subordinate Judge and restore those of the trial Court.

In the circumstances of this case, we would direct the parties to bear their own costs throughout.

Niyogi, J.

I agree.