Manju Bala Das and Others vs Prodosh Ranjan Das and Another

M.C. Pathak, J.—This is an appeal from the judgment and decree of the learned Subordinate Judge, Cachar. The Plaintiff''s case is that they are the jotedars in respect of the first schedule land and owners of the house standing on the second schedule land, which is included in the first schedule land. The Defendant No. 1 took settlement of a room of the house described in schedule 2 for one year from 21st Jaistha, 1359 B. S. to 21st Jaistha, 1360 B. S. agreeing to pay rent at Rs. 34/- per month. The settlement was taken from Barada Charan Purkayastha, predecessor in interest of the Plaintiffs. After the death of Barada Charan Purkayastha the Defendant No. 1 continued to occupy the house paying the rent at the same rate. The Defendant No. 1 defaulted in payment of rent since after December, 1962 and therefore Money Suit No. 350 of 1963 was filed for rent and compensation against him. The Defendant No. 1 used to pay rent according to English calendar month for the sake of convenience. The Defendant No. 1 without consent and permission of the Plaintiffs allowed the Defendant No. 2 to occupy the house. The Plaintiffs required the house in question for their own use and occupation and therefore they served a notice on the Defendants on 15-1-1964 requiring them to vacate the suit house after expiry of 21st Palgoon 1370 B. S. corresponding to 5-3-1964. The Defendants did not vacate the suit premises in spite of receipt of the notice. Hence the suit for ejectment.

The Defendants filed a joint written statement. They denied that Defendant No. 2 was a sub-lessee under the Defendant No. 1. Their contention was that Defendant No. 2 through the mediation of Dwijendra Nath Sarma obtained settlement of the suit house from Barada Charan Purkayastha, who was the karta of the joint family, at a monthly rent of Rs. 34/- from 1st Jaistha 1359 B. S. In Bhadra 1359 B. S. the Plaintiff No. 2 pressed for executing a Kerayanama and so the Defendant No. 1 executed the Kerayanama and got it registered on behalf of both the Defendants. The rent was paid according to English calendar month. In 1955 the rate of rent was reduced to Rs. 25/- per month though in spite of protests the Plaintiffs continued to issue receipts for Rs. 34/- per month. The Defendants denied that they were defaulters in payment of rents and did not admit that the Plaintiffs required the suit house for their bona fide necessity. They further contended that the suit was bad for non-joinder of parties and for want of legally valid notice.

A number of issues were framed on the pleadings of the parties. The learned Munsiff on consideration of the evidence on record decreed the Plaintiffs suit. An appeal was preferred before the learned Subordinate Judge, who affirmed the judgment and decree of the learned Munsiff. The Defendants thereafter preferred Second Appeal No. 13 of 1966, in which the High Court remanded the appeal to the Subordinate Judge for disposal. After remand, the only point that was canvassed before the learned Subordinate Judge was that no legally valid notice terminating the tenancy was served on the Defendants. The learned Subordinate Judge considered the evidence on record, on this point and found that the notice of adjustment (Ext. 6) in the instant case did not conform to the requirements of the provisions of Section 106, Transfer of Property Act and in that view he held that the Plaintiffs'' suit failed for want of service of a legally valid notice on the Defendant''s terminating the tenancy. The Plaintiffs suit was thus dismissed.

Title Appeal No. 78/65 was finally disposed of by the learned Subordinate Judge on 13-6-67 and the present second appeal (S. A. 174/67) was filed on 2-8-1967. On 13-5-1969 when the case came up for hearing the Respondents'' Advocate informed that Appellant No. 1 died on 1.1-3-1968. Thereafter a petition for setting aside the abatement of the appeal was filed on 14-7-1969 and the rule was issued on the petition on 21-7-1969. By order dated 21-11-1969 this Court ordered that the question of abatement would be heard along with the main appeal.

In their petition the Plaintiffs-Petitioners stated that the appeal came up for hearing on 13-5-1969 when the learned Advocate for the opposite parties stated that Ashutosh Das Purkayastha had died and as no steps for substitution of his legal representatives were taken within time the appeal abated as against him. That Petitioner No. 1 Barid Baran Das Purkayastha used to look after the case on behalf of all the Appellants and that soon after 13-5-1960 their advocate wrote to him in his Karimganj address about the reported death of Ashutosh Das Purkayastha and for substitution of his legal representatives, but he got no reply. Thereafter their Advocate again wrote to Petitioner No. 1 but got no reply. About a month back the learned Advocate learnt from a gentleman of Karimganj that Petitioner No. 1 was suddenly attacked with a severe heart disease more than a year back and his whole body was paralysed and he had to be removed to Calcutta for treatment and that since then he had been lying bed-ridden in Calcutta for treatment. The learned Advocate further learnt that Ashutosh Das Purkayastha was murdered in Pakistan and that there was nobody in the house at Karimganj and the learned Advocate was instructed - to contact Sri Ranu Chanda, a Railway employee at Maligaon, who happened lo be the brother-in-law of Ashutosh Das Purkayastha. Accordingly the learned Advocate: contacted Ranu Chanda about a fortnight back and asked him to write to Petitioner No. 1 or anybody else to ascertain the date of death of Ashutosh Das Purkayastha and the names of his legal representatives. That said Ranu Chanda could somehow manage to get the information and obtained a Vokalatnama executed by Petitioner No. 5 on 12-7-1969. Petitioner No. 1 was still lying bed-ridden at Calcutta for treatment and he was not in a position to take any steps in the matter. The other Petitioners, who are females depended absolutely on him in matters connected with the appeal. That Petitioner No. 5 is the wife of late Ashutosh Das Purkayastha and she is the sole heir and legal representative of late Ashutosh Das Purkayastha who had been murdered in Pakistan on 11th March 1968. Said Rami Chanda has now been entrusted to take all steps in the appeal. An affidavit to this effect has been filed by Ranu Chanda. No counter-affidavit has been filed to the petition for setting aside the abatement. On consideration of the facts and circumstances as disclosed in the petition I hold that there are sufficient grounds for condoning the delay in filing the petition. In the circumstances the delay is condoned, the abatement is set aside and substitution of the legal representatives of late Ashutosh Das Purkayastha is allowed.

Regarding the merits of the appeal, the only question to be considered is whether there was service of valid notice terminating the tenancy. Ext. 6 is a copy of the notice. The original notice was not produced by the Defendants. The learned Subordinate Judge on consideration of the evidence on record has found that Defendant No. 1 Pradosh Raman "Das received the notice on 1-2-1964 and Defendant No. 2 Prasanta Kumar Das received the notice within January 1964, by which they were required to vacate the suit house bv the expiry of 21st Falgoon, 1370 B. S. corresponding to 5th March, 1964. The Defendants therefore got more than fifteen days notice terminating the tenancy. According to the Plaintiffs the tenancy commenced on the 21st Jaistlia 1359 B. S. and also for a period of one year, that is, up to 2lst Jaistha 1360 B. S. and for the convenience of the Defendant the rent was paid according to the English calendar month. From the pleadings and the evidence on record, the learned Subordinate Judge has found that the tenancy was at the inception created by an oral lease accompanied by delivery of possession on 21st Jaistha 1359 B. S. Subsequently in the month of Bhadra of the same year 1359 B. S. a Kerayanama Ext. 1 was executed to serve as a piece of evidence of the tenancy commencing on 21st Jaistha 1359 B. S. Ext. 1 was executed by the Defendant No. 1 alone in favour of the Plaintiffs u/s 107 of the Transfer of Property Act a lease of immovable property has to be made by a registered instrument and such an instrument has to be executed by both the lessor and the lessee. That being the position Ext. 1 does not come under a lease as defined u/s 107 of the Transfer of Property Act, inasmuch as it was executed by the lessee only. In the circumstances the lease in the instant case becomes an oral lease commencing from 21st Jaistha 13�9 B. S. The tenancy being a monthly tenancy under the law, it commenced from 21st of every Bengali month and ended on 20th of the next month. Hence the notice u/s 106, Transfer of Property Act in the instant case will have to terminate the tenancy by the end of 20th by demanding vacant possession on 21st of the month. By Ext. 6 the tenancy was terminated and vacant possession was demanded by the end of 21st of Falgoon 1370 B. S. Since the tenancy commenced on 21st of the Bengali month, it ended on 20th of the next month. Hence the notice should have terminated the tenancy by the end of 20th Falgoon and vacant possession should have been demanded by the end of 20th Falgoon or on 21st Falgoon. But by Ext. 6 the lessor demanded vacant possession by the end of 21st Falgoon and therefore the notice of ejectment in the instant case cannot be said to be a notice terminating the tenancy expiring with the end of the month of the tenancy. On a perusal of the language of Ext. 6 it is quite clear that the tenancy was terminated by the end of 21st of the month, that is to say, the tenant was entitled to remain in the suit premises on the 21st of the month in terms of the notice. But a fresh monthly tenancy commenced on the 21st of the month. Thus the notice Ext. 6 cannot at all be interpreted to mean that the tenant was to vacate on the 21st.

In the circumstances the learned Subordinate Judge correctly held that Ext. 6 did not conform to the requirements of the provisions of Section 106 of the Transfer of Properly Act. The notice of ejectment in the instant case is not valid in law and therefore the Plaintiffs'' suit must fail for want of a notice as required u/s 106, Transfer of Property Act. In the result this appeal Jails and is dismissed with Costs.