Arun Kumar Ghose vs Kanai Krishna Roy

Bachawat, J.—This is a petition under Article 227 of the Constitution arising out of an application by a landlord for eviction of a thika tenant u/s 5 of the Calcutta Thika Tenancy Act, 1949. The property in suit consists of the back portion of land at No. 3, Mysore Road, Tollygunge. The property was allotted to one Amulya Chandra Ghose subject to the life interest of his mother Sm. Probodh Kumari by the compromise decree in Title suit No. 4 of 1939 in the second court of the Subordinate Judge, Alipore, dated March 20, 1939.

In June, 1950 opposite party No. 1 Kanai was the thika tenant of the property, the tenancy being from month to month according to the Bengal calendar. On June 14, 1950 Probodh Kumari served a notice on Kanai alleging inter alia that she required the laud for building and, rebuilding and requiring Kanai to quit and vacate the land on the expiry of Bhadra, 1352 B.S. On October 14, 1950 Probodh Kumari died. Amulya, her son, had predeceased her and consequently the suit land devolved upon the present Petitioner Arun Kumar Ghose, who was the son and heir of Amulya Chandra Ghosh. On December 22, 1951 Arun Kumar instituted Title suit No. 875 of 1951 in the First Court of the Munsif, Alipore, against Kanai on the ground inter alia that he required the land for building and re-building. Sometime in 1954 the suit was transferred to the Third Court of the Munsif, Alipore and was marked as Title suit No. 410 of 1954. By a kobala, dated August 1, 1954 Kanai transferred to Sushila, opposite party. No. 2, his interest in the holding as a thika tenant together with the structures thereon. On January 11, 1955, Sushila was added as a party to the suit On January 27, 1955, the learned Munsif passed an order that the plaint be returned to Arun Kumar''s pleader for presentation to the Thika Controller. Pursuant to this order the plaint was returned to the pleader and was presented by him to the Thika Controller as an application u/s 5 of the Calcutta Thika Tenancy Act against both Kanai and Sushila. On October 1, 1956 the Thika Controller allowed the application and passed an order for ejectment in favour of the landlord, Arun Kumar against Kanai and Sushila.. Sushila preferred an appeal before the learned Subordinate Judge. By his order, dated May 28, 1957, the Subordinate Judge allowed the appeal and set aside the order passed by the Thika Controller holding that (a) the Controller had no right to entertain the application u/s 5 because the order, dated January 27, 1955 was without jurisdiction and (b) that Arun Kumar could not claim ejectment on the basis of the notice served by Probodh Kumari and that in order to succeed Arun Kumar had to serve a fresh notice u/s 4 of the Calcutta Thika Tenancy Act on the tenant. Mr. Sen on behalf of; opposite party No. 2 strongly pressed both these points before us as also several other points.

Both the tribunals have concurrently found that Arun Kumar requires the land for building and re-building. Mr. Sen contended that this finding is erroneous and should be set aside. We are satisfied that the finding is not vitiated by any error of law and we see no reason to interfere with it.

Mr. Sen next contended that the real question which the Tribunal below should have decided was whether Probodh-Kumari required the land, for building and re-building, and No. whether Arun, Kumar, so required it. We are unable to accept this contention. When the present proceeding started Probodh Kumari was dead and there was no question of her then requiring the land. Arun Kumar was the landlord at the time of the institution of the proceeding and the question was whether he had made out the ground of his requirement for the building and re-building.

The contention that the Controller had no power to entertain the application u/s 5 of the Calcutta Thika Tenancy Act because the order, dated January 27, 1955, was without jurisdiction, is baseless. I shall assume for a moment, without deciding it, that the order, dated January 27, 1955 was an order which the learned Munsif was not competent to pass and was without jurisdiction. Nevertheless the fact remains that the plaint was returned to the landlord and the landlord presented the plaint to the Thika Controller as an application u/s 5. The proceeding u/s 5 was initiated when the petition in the form of a plaint was presented to the Thika Controller. The validity of the proceeding before the Thika Controller is in no way dependant upon the question whether or not the (prior) order, dated January 27, 1955, was a valid order. A separate proceeding, which may well be treated as an independent proceeding, was initiated u/s 5 on January 27, 1955.

Some argument was made by Mr. Sen that the application u/s 5 was not maintainable because the petition alleged that she was a trespasser and not that she was a thika tenant. There is no substance in this contention. This point was not raised in any of the Tribunals below. On the contrary, both sides fought the case on the footing that Sushila being the successor-in-interest of Kanai is a thika tenant within the meaning of Section 2(5) of the Act. Had the technical point been taken before the Thika Controller, I have no doubt that suitable amendments in the petition would have been made.

The rest of the argument of Mr. Sen was focussed on the question of the validity of the notice, dated June 14, 1950. Mr. Sen contended that Section 4 of the Calcutta Thika Tenancy Act does not dispense with the requirement of the notice to quit required by Section 106 of the Transfer of Property Act. He urged that the notice, dated June 14, 1950, was only a notice u/s 4 of the Calcutta Thika Tenancy Act and as no separate notice u/s 106 of the Transfer of Property Act had been given the proceeding was liable to be dismissed. It is not necessary in this case to decide whether or not the provisions of Sections 3 and 4 of the Calcutta Thika Tenancy Act, 1949 read together dispense with the requirement of a notice u/s 106 of the Transfer of Property Act. It is sufficient to say for the purpose of this case that the notice, dated June 14, 1950 is effective both as a notice u/s 4 of the Calcutta Thika Tenancy Act as also as a notice u/s 106 of the Transfer of Property Act. The notice, dated June 14, 1950, gave the tenant three months'' notice expiring with the month of the tenancy to quit and vacate the land. Such a notice was sufficient to terminate the tenancy u/s 106 of the Transfer of Property Act. We are satisfied that assuming that a notice u/s 106 of the Transfer of Property Act is necessary the same notice may operate as an effective combined notice both u/s 4 of the Calcutta Thika Tenancy Act, 1949 and u/s 106, of the Transfer of Properly Act.

Mr. Sen next contended that the notice, dated June 14, 1960 was, if at all, effective only for the purposes of the suit instituted on December 22, 1951 and that on the virtual dismissal of the suit, the force of the notice was exhausted and that the landlord could not avail himself of its benefit when he instituted the fresh proceeding before the Thika Controller on January 27, 1955. I am unable to accept this contention. The notice did not loss its force, because some proceeding instituted on the strength of it was dismissed on the ground that the court had no jurisdiction to entertain the proceeding. The landlord may well institute a fresh proceeding on the basis of the self same notice without serving a fresh notice in a competent Tribunal.

Mr. Sen next contended that Probodh Kumari was not the landlord and was not competent to give the notice required by Section 4 of the Calcutta Thika Tenancy Act and Section 106 of the Transfer of Property Act. We are unable to accept this contention. By the compromise decree in Title suit No. 4 of 1939 the back portion of the land of premises No. 3. Mysore Road was allotted to Amulya Chandra Ghose subject to the rights of Sm. Probodh Kumari. Clause 7 of the decree provided that Probodh Kumari would be entitled to the rents, issues and profits of premises No. 3, Mysore Road, present, past or future during her life time subject to payment of all taxes and outgoings in respect thereof. Clause 8 of the decree provided that Probodh Kumari would be entitled to deal with and dispose of the back portion of premises No. 3, Mysore Road as an absolute owner by sale or otherwise if she at any time desired or if any necessity arose but that if she did not do so the same would belong to Amulya Chandra Ghose or his heirs absolutely. It is not necessary to consider in this case the contention of Mr. Sen that;;Clause. 8 of the compromise decree is repugnant to the vested reversionary rights of Amulya Chandra Ghose in the suit property. It is sufficient to say that by Clause. 7 of the decree Probodh Kumari became, during her life time, the landlord of the suit property within the meaning of the Calcutta Thika Tenancy Act. The word "landlord" is not defined in the Calcutta Thika Tenancy Act, 1949. Section 2(6) of that Act provides that all words and expression used but not defined in the Act and used in the Transfer of Property Act, 1882 for the Bengal Tenancy Act, 1885, have the same meanings as in those Acts. Sections 3(6) of the Bengal Tenancy Act, 1885, provides that "landlord" means a person immediately under whom a tenant holds and includes the Government. Quite clearly during the life time of Probodh Kumari Dasi the tenant held immediately under Probodh Kumari Dasi. She was entitled to the rents, issues and profits of the property and as such she had the implied authority to induct tenants and to determine the tenancies of the existing and future tenants. During her life time the ownership of the property was vested in her and she was competent to give notice terminating the tenancy u/s 106 of the Transfer of Property Act.

Mr. Sen next contended that Arun Kumar himself was required to give a notice u/s 4 of the Act before he could be said to be competent to eject the tenant and that he was incompetent to eject thika tenant on the strength of the notice given by his predecessor-in-interest Probodh Kumari. He drew our attention to the structure of Section 4 and contended that before a "landlord" could be said to be competent to eject the thika tenant, the "landlord" must give the notice referred to in the Section 4. On a careful consideration of the matter, we have come to the conclusion that this contention ought not to be accepted. In our opinion, it is reasonable to hold that the word "landlord" in Section 4 of the Calcutta Thika Tenancy Act refers to the "landlord "for the time being". It appears to us that if the landlord for the time being serves the notice referred to in Section 4, not only the person giving the notice but also any other person who is the landlord for the time being can take advantage of the notice. In other words, the notice given by a landlord u/s 4 of the Calcutta Thika Tenancy Act enures to the benefit of the Successor-in-title of the person giving the notice.

Mr. Sen next contended that Sushila being the successor-in-interest of Kanai, became the thika tenant on the 1st August, 1954 long before the present proceeding before the Thika Controller was started and that unless a notice u/s 4 of the Calcutta Thika Tenancy Act was served upon her, Arun Kumar Ghosh was not competent to eject her. Again, we are unable to accept this contention. On June 14, 1950 the then landlord Probodh Kumari gave the notice referred to in Section 4 to the then thika tenant Kanai. Long thereafter Kanai transferred his holding to Sushila. In our opinion it was not necessary for the landlord to serve a fresh notice u/s 4 on Sushila. It is reasonable to hold that the expression "thika tenant" in Section 4 of the Calcutta Thika Tenancy Act refers to the "thika tenant for "the time being." If the thika tenant for the time being is served with the notice u/s 4 the landlord becomes competent to eject not only the thika tenant served with the notice but also his successor-in-interest. This disposes of all the contentions advanced before us by Mr. Sen.

The Petitioner-landlord is, therefore, entitled to the order for an ejectment. Our attention, however, has been drawn to certain defects in the order passed by the Thika Controller. We think that in lieu of the order passed by him the following order should be passed.

The Rule is made absolute and the judgment of the lower Appellate Tribunal is set aside. It is declared that the Petitioner-landlord is entitled to eject the opposite parties. The amount of compensation payable under Clause (ii) of the proviso to Section 4 be determined by the Controller in accordance with law. If the amount so determined is either paid or deposited in accordance with Section 5(2) of the Calcutta Thika Tenancy Act the Controller shall allow the application and pass an order for ejectment of the opposite parties in accordance with law.

Each party will bear and pay his own costs throughout.

Chatterjee, J.

I agree.