Babulal Bania vs Basudeb Das

P.N. Mookeejee, J.—The only point requiring consideration, in this second appeal, is whether the learned munsif was right in refusing the defence prayer for stay of hearing of the suit, out of which this appeal arises and whether the decree passed by him in March, 1948, and the dismissal of the appeal therefrom by the learned subordinate Judge in February, 1949, are bad in law on account of such refusal.

The appeal arises out of a suit for ejectment and arrears of rent and mesne profits brought by the Plaintiff Respondent No. 1 against the Respondent No. 2 and the Appellant who were respectively Defendants Nos. 1 and 2 in the trial Court. Admittedly, the Plaintiff is the owner of the disputed land. Admittedly also, Defendant No. 1 Thakurani Dasi was, originally, a tenant under the Plaintiff in respect of the said land under a kabuliyat for a period of five years from Jaistha 1, 1339 B.S., to the end of Baisakh, 1343 B.S. After the expiry of the above term of five years Thakurani continued as a tenant at, what appears to be in effect, a reduced rental, and in or about the middle of Baisakh, 1352 B.S., corresponding to April, 1945, the Plaintiff served by registered post a notice to quit upon the tenant Thakurani asking for possession immediately on the expiry of Baisakh, 1352 B.S. On July 27, 1945, corresponding to Sraban, 1352 B.S., Defendant No. 1 Thakurani Dasi sold the huts on the disputed land to Defendant No. 2 Babulal, and on November 27, 1945, the present suit was instituted against the two Defendants claiming ejectment, arrears of rent and mesne profits.

There were various defences raised in the two separate written statements filed by the two Defendants, and originally there were five issues framed, chief of which related to the validity and effect of the notice to quit and the service thereof. The learned munsif found all the above issues in favour of the Plaintiff and his decision was accepted and maintained by the lower appellate Court and nothing could be placed before me to induce me to come to a different conclusion or to justify interference with the findings of the Courts below on those issues in this second appeal.

There was, however, an additional issue raised in the trial Court as Issue No. 6 which was in the following terms, viz., Is the suit liable to be stayed under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act ?

This issue was taken up by the learned munsif as a preliminary issue and answered by him in the negative by his order, dated February 18, 1948, and, upon appeal, the said decision was affirmed by the learned subordinate Judge. Th propriety of this part of the judgments of the Courts below has been strenuously assailed before me and it has been strongly urged by Mr. Janah, appearing for the Defendant Appellant, that the Courts below have grievously erred in proceeding upon the view that every suit for ejectment against a non-agricultural tenant who is in arrears is a "suit for ejectment on account of arrears of rent" within the meaning of the relevant statute, namely, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, so as to place it outside the mischief of the section Section 3) enjoining stay of suits for ejectment against non-agricultural tenants. In the present state of the authorities it is undeniable that this argument is correct. At times, no doubt, the view prevailed with Judges sitting singly in this Court that every such suit came within the benefit of the exception [vide Kumar Purnendu Nath Tagore v. Narendra Nath Samanta (1940) 40 C.W.N. 22; Nut Bihari Das v. Mohammad Ali (1941) 45 C.W.N. 791, and Sree Sree Iswar Lokenath Sibthakur v. Manindra Nath Dutta (1945) 49 C.W.N. 239] and that view had also the apparent support of a Bench decision of this Court [vide Radhikalal Goswami v. Gopeswar Basu (1942) 46 C.W.N. 1025], although it was clearly opposed to the other two Bench decisions Prabhabati Debi v. Pratap Chandra Majumdar 45 C.W.N. 991 : ILR [1942] 1 Cal. 49 and Reliance Jute Mills Co., Ltd. v. Dukhi Shah (1942) 46 C.W.N. 889,-but the law must now be taken to have firmly established that the exception applies only to rases where, under the term of the particular tenancy, non-payment of rent is a ground of forfeiture of the tenancy in question and, thus, for ejectment, and in no other case of a tenant in arrears, can the landlord avail himself of the benefit of that statutory exception [vide Sm. Rajabala Dasi v. Sm. Sukumari Debi (1947) 51 C.W.N. 688], where the conflicting views were noticed, closely examined and elaborately discussed, and the learned Judges, Blank J. and Chakravartti J., as he then was, after carefully explaining Radhikalal Goswami''s case (supra), reaffirmed and followed the decision reported in Reliance Jute Mill''s case (supra). The reason, therefore, given by the learned munsif,-and which was apparently accepted by the learned subordinate Judge,-for refusing the defence prayer for stay cannot prevail and unless the refusal can be supported on some other basis,-legally valid and sufficient,-the decrees passed by the Courts below for ejectment must be set aside and the case remanded to the trial Court for a fresh hearing and proper disposal according to law.

The crucial question is whether the Courts below were right in rejecting the defence contention that the suit ought to have been stayed under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. As I have already said, the reason actually given for such rejection is not satisfactory or acceptable in law, but there may be other grounds sufficient to sustain the same. This brings me to a consideration of the case of Baidyanath Ghose v. Bajranglal Surekha (1948) 63. C.W.N 783 upon which very strong reliance was placed on behalf of the Plaintiff Respondent. It appears that in the case cited, viz., Baidyanath Ghose v. Bajranglal Surekha (supra), the landlord Plaintiff sought to eject his original tenant and the latter''s transferee on the strength of a clause of forfeiture in the relevant lease which provided inter alia that on its transfer to a third party the tenancy would be forfeited. The Plaintiffs'' allegation was that the tenant Defendant No. 2 had transferred the tenancy to Defendant No. 1 and thereby the tenancy had been forfeited, entitling him to khas possession of the demised property. In that case, the transfer was admitted by all the parties, and, as it appears from the Report, the original tenant Defendant No. 2 disclaimed any subsisting tenancy right in the suit land, but claimed to hold it as a sub-tenant under the transferee Defendant No. 1 who, according to both the Defendants, had become the tenant in place of the transferor Defendant No. 2 by reason of the admitted transfer, the main and, indeed, the only defence being that the forfeiture clause pleaded by the Plaintiff was not genuine, valid or effective. In this state of things, Chakravartti J., as he then was, held that the original tenant Defendant No. 2 was, on his own showing, a trespasser on the date of the suit, and could not claim to be an ex-tenant falling within the definition of a non-agricultural tenant under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, so as to be entitled to the benefits available to such a tenant under the said Act, his tenancy having ceased by forfeiture, according to the Plaintiff, and by transfer according to Defendant No. 2 himself and, also, it seems, according to the transferee Defendant No. 1. In my opinion, the circumstances before me are entirely different, and Baidyanath''s case (supra) is plainly distinguishable and cannot assist the Plaintiff Respondent. The landlords claim to have terminated Thakurani''s tenancy by the service of a notice to quit, such claim is denied by the defence and the further case made by Defendant No. 2 that the tenancy has passed to him from Thakurani by transfer is contested by Thakurani herself.

In such circumstances, it cannot be said as in Baidyanath''s case (supra), cited by Mr. Mitter, that Thakurani had admittedly ceased to be a tenant and become a trespasser, and thus she cannot be held, even on the authority of that case, to have become disentitled to the protection afforded to the tenant by the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. It is also plain from the Kobald (Ex. D) that thereby only the huts or structures were transferred by Thakurani to Defendant No. 2, but there was no transfer of the former''s tenancy or any rights in that behalf in the land in suit. Termination of the tenancy cannot thus be claimed except on the basis of the notice to quit. Thakurani, therefore, was a tenant, or, at least an ex-tenant, if the notice to quit had no defects, entitled to the benefits of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, so far as the Plaintiff''s claim for ejectment was concerned, and the suit ought to have been stayed u/s 3 of the said Act as obviously no effective decree for possession could be passed unless the claim for ejectment against Thakurani could be legally adjudicated upon and decided against her. This appeal must, therefore, succeed, the decree for ejectment passed by the two Courts below must be set aside and the suit, so far as ejectment is concerned, must be reheard in accordance with law. The evidence already on record will be evidence at this rehearing and except as indicated below no other fresh or additional evidence will be allowed to be given.

I have stated above that in all there were six issues framed in the suit. Of these, Issue No. 4 related exclusively to the Plaintiff''s claim for rent and damages. This claim has been decreed by the Courts below, damages or mesne profits having been assessed at the rate of rent. Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, has nothing to do with a claim for rent (vide in this connection Reliance Jute Mill''s case and Rajubala Dassi''s case, already cited), and as damages or mesne profits have been decreed on the rental basis no complaint can be made against this part of the decree, except on a minor point which will be noticed below.

In deciding Issue No. 4 the learned munsif allowed the Plaintiff''s suit inter alia for damages or mesne profits at the rate of rent up to the date of recovery of possession and passed a decree in the following form, viz., that the Plaintiff would get a decree for mesne profits at the rate of Rs. 13 per month from Jaistha 11352 B.S., up to date of the decree subject to payment of deficit Court-fees (which payment appears to have been duly made) and further that the Plaintiff would be at liberty to bring suit against the Defendants for subsequent mesne profits until he recovered possession of the disputed land. It is quite obvious that there can be no question of recovery of possession until a decree for ejectment is passed. The further provision, set out above, must, therefore, be deleted and in lieu thereof the Plaintiff should be awarded, subject to his paying the deficit Court-fees, a further decree at the rate of Rs. 13 per month from the date of the trial Court''s decree till this date with an express reservation of fresh consideration at the rehearing, now directed, of his right to get rent or damages or mesne profits, as the case may be, from this date till the date of final disposal of the suit, and the lower Court''s decree for rent and/or damages or mesne profits should be modified accordingly. Subject to this modification, the decree of the Courts below for rent and/or damages or mesne profits is maintained.

In the view which I have taken, it is not necessary to express any opinion on the Appellant''s argument founded on the proviso to Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, viz., that, in any event, he is entitled to deposit the decretal amount within thirty days from the date of decree of this Court to get rid of the ejectment decree passed by the learned munsif and affirmed by the learned subordinate Judge even if the same be found to have been correctly passed, nor is it necessary to consider the Appellant''s other argument that in view of the new Act (West Bengal Non-Agricultural Tenancy Act of 1949) the Plaintiff is not entitled to a decree for ejectment. As to the former, the question involved in the argument no longer arises in view of the setting aside of the decree for ejectment, passed by the Courts below, and the order of remand, now being made in this appeal: as to the latter it is enough to say that at the rehearing or fresh hearing of the suit in pursuance of this judgment the Court will consider the applicability of the new Act to the Plaintiff''s claim for ejectment and the effect thereof upon the same and will give the parties adequate opportunities to produce all available materials which may be found necessary and relevant for a proper decision of the said two questions, and, to this limited extent, the parties will be entitled to adduce fresh or additional evidence.

I, accordingly, allow this appeal in part, set aside the decrees of the two Courts below as far as the Plaintiff''s claim for ejectment is concerned and modify the decree for rent and/or damages or mesne profits in the manner indicated above and send back the case to the trial Court for a fresh hearing in the light of the directions contained in this judgment. The parties will bear their own costs up to this stage. Future costs will abide the final result.