Kadu Mallik vs Bani Dutta

Renupada Mukherjee, J.—The Plaintiff Respondent instituted a suit for khds possession of 06 acre of land recorded in Cadastral Survey plot No. 1587 within Katwa Municipality after evicting the Defendant therefrom on the allegation that he was allowed to stack and sell coal on the land at a monthly bhara of Rs. 3 from 1347 B.S., but from Bhadra, 1354 B.S., the Defendant Appellant began to erect structures on the land for selling various commodities although he had no right to erect such structures. The Plaintiff further alleged that she required the land for her own use and so she had served a notice upon the Defendant to vacate the land at the end of Agrahayan, 1354 B.S. which he did not do. So the present suit was instituted by the Plaintiff.

The defence of the Defendant Appellant was that he was a monthly lessee at a rent of Rs. 3 per month from 1341 B.S. and he could not be ejected on account of the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949. This defence was negatived by both the courts below and so the Defendant has come up in Second Appeal.

The only point which arises for the decision in this appeal is whether the Defendant Appellant was a licensee or a tenant under the Plaintiff in respect of the disputed land.

Mr. Ali appearing on behalf of the Appellant contended that it was nowhere stated in the plaint that the Defendant was a licensee and the courts below were wrong in allowing the Plaintiff to make out a new case at the time of trial that the Defendant was her licensee. There is no substance in this contention. It is true that the word "licence" has not been specifically used in the plaint but it is stated therein that the only right conferred Upon the Defendant Appellant was the right of stacking and selling coal on the disputed land at a monthly bhara of Rs. 3. It was further stated that because the Appellant was using the land in excess of the right conferred upon him the Plaintiff put an end to the right by serving a notice to quit. Substantially, therefore, the Plaintiff sued the Defendant on the footing that the latter was a mere licensee without any interest in the land itself. It is not, therefore, correct to say that the Plaintiff made any new case of licence at the time of trial.

The next and the more important argument advanced by Mr. Ali was that upon the evidence on record, the courts below should have held that the Appellant was a lessee and not a licensee. Mr. Mukherjee appearing on behalf of the Respondent contended, on the other hand, that the question whether the Appellant was a licensee or a lessee is a question of fact and this Court should not interfere with the concurrent findings of the courts below on this question. This contention of Mr. Mukherjee does not appear to be sound because the question whether the Appellant was a licensee or a lessee will depend in this case upon an inference to be drawn from a set of facts disclosed by evidence, and also upon the construction of a few documents to which I shall presently refer. That being the case the question at issue becomes a mixed question of law and fact and is liable to be re-opened in Second Appeal.

Plaintiff''s witness and officer Nitya Gopal Das no doubt stated in his evidence that the Defendant "executed a hatchita for "taking bandobast of the land at a monthly bhara". Taken by itself this statement will mean that a mere licence was given to the Appellant without any interest in the land. It seems, however, that the lower appellate court has attached some undue importance to the word bhara when it says:

The use of the words "bhara" (not rent) in each one of the rokds given to the Defendant is an important fact to be taken into consideration whether it was ever intended to give any interest in the immoveable property to the Defendant. Obviously there is some difference between the words bhara and khajna (rent). Generally, a man who pays bhara and not rent cannot claim any interest or right to exclusive possession in the property.

But the word bhara is a term of a very wide import. It may mean rent. It may also mean charges for the use or hire of anything. Exhibit 1, an entry in the hatchita, would show that monthly bhara of a bastu land was given to the Respondent with liability to pay taxes. No restriction of any manner was placed upon the user of the land. Exhibit I (a), an earlier hatchita of 1345 B.S., similarly shows that monthly bhara of a bastu land was given to the Respondent. These entries in the hatchita books of the Respondent herself are hardly compatible with a case of licence.

The next document is a partition deed of 1346 B.S. It was executed by Plaintiff''s father Niranjan Chandra and his co-sharers. The disputed land is included in Ga schedule properties of this partition deed and this land was allotted exclusively to the share of Niranjan. The description of this plot would show that this land which contained some broken structures was formerly let out in bhara with some Bhakats and it was known as a coal depot at the time of the partition deed. The plot has not been described as khas land of the landlord and from the manner of description of this plot, one gets the impression that the plot of land which was formerly leased out to Bhakats was being used as a coal depot at the time of the partition deed. The right of the owner of the coal depot does not seem to be in any way inferior to the right of the Bhakats which was apparently that of a lessee and not of a licensee. It should be remembered in this connection that the Appellant had erected some structures on the land without any objection on the part of the Plaintiff''s father or his co-sharers. The structures might not have been very substantial''but they indicate that the Appellant was in exclusive possession and control of the land and no other right was reserved in favour of the predecessors of the Respondent except the right to get rent or bhara. In my judgment, the right given to the Appellant was the right of a lessee and not simply the right of a licensee.

The above conclusion will be further strengthened on a consideration of the notice served upon the Appellant for vacating the land. This notice is Ext. 3. It is clearly described in the notice that the Appellant had taken bandobast of the disputed land from the father of the Respondent at a monthly bhara of Rs. 3 for the purpose of starting a coal depot. The word "bandobast" is significant. Then again, it is stated in the notice that the Respondent wanted to make the land khas not by revoking the licence but because the Appellant had changed the character of the land by putting up some particular kinds of structures. The status of the Appellant as a tenant or lessee is writ large upon this notice which was given at a time when there was no dispute between the parties as to the status of the Appellant. In my judgment, the courts below failed to appreciate the true meaning and import of this notice as well as of the other documents mentioned in the earlier portion of the judgment.

Mr. Mukherjee appearing on behalf of the Respondent contended that even if it be assumed that the Appellant was not a licensee, he cannot claim the right of a lessee without a registered document on account of the bar of Section 107 of the Transfer of Property Act and the result would be that the Appellant would have no right to retain possession of the land. In my opinion, there is no substance in this connection. The Appellant is not claiming the status of a lessee of immoveable properties from year to year or for any term exceeding one year which alone would have attracted the bar of Section 107 of the Transfer of Property Act. Paragraph 5 of the written statement clearly shows that the Appellant is claiming the status of a monthly tenant at a rent of Rs. 3 in respect of some non-agricultural land. Such a tenancy or lease from month to month can be created without any instrument as was done in this particular case. The hatchitas to which I have referred above do not show the inception of the tenancy. They simply show in what manner rent was realised from the Appellant. That being the case, no registered document or document of any kind was necessary for the purpose of creating a tenancy of this description. I, therefore, hold that the Appellant was a monthly tenant under the Plaintiff in respect of the disputed land at a rent of Rs. 3 per month. That being the case his. tenancy cannot be determined by service of 15 days notice to quit as Clause (c)(iii) of Sub-section (1) of Section 9 of the West Bengal Non-Agricultural Tenancy Act, 1949 requires that such a tenancy can be determined only by 6 months'' notice to quit. As no such notice was given to the Appellant, the claim of the Plaintiff must fail and the judgment and decrees of the courts below must be set aside.

In the result, the appeal is allowed and the judgments and decrees of the courts below are hereby set aside. The suit of the Plaintiff will stand dismissed.

The Appellant will get his costs throughout from the Respondents.

Leave to file appeal under Clause 15 of the Letters Patent is asked for and refused.