Molla Abdul Aziz vs Shaikh Abdul Sabur

Roxburgh, J.—This is an appeal against an order of the District Judge of Hooghly setting aside an order of the Munsif of Serampore decreeing the Plaintiff''s suit for ejectment. Ejectment was sought on the ground of breach of conditions. Notice was served under sec. 155 of the Bengal Tenancy Act. The notice specified the breach and added that if possible the Appellant should pay reasonable compensation. No actual amount of the Plaintiff''s estimate of what was reasonable compensation was given in the notice. On this ground alone the lower Appellate Court has held that the notice was a bad notice. It appears then that if that view holds, the landlord acting under sec.155 of the Bengal Tenancy Act may find himself rather in a cleft stick. If his idea of what is reasonable compensation as stated in the notice is subsequently found by the Court not to be reasonable, then notice will be held to be bad. If he does not specify in the notice what he considered to be reasonable compensation then according to the lower Appellate Court the notice will be bad. So then unless the landlord can hit off a figure which will satisfy the various tribunals from the trial Court to this Court who will deal with his case he will find that the provisions of sec. 155 of the Bengal Tenancy Act are a snare and a delusion. In my opinion, the notice given here was certainly quite sufficient. Defendant, had he wished, might have offered some compensation. There might have been an agreement as to what was reasonable compensation in the circumstances and then the Plaintiff would not have brought his suit. It is to be remembered that even when a suit is brought under sec. 155 no does not conclude the matter. It is not as though the notice is to be such that the figure stated therein is the final figure and the Defendant must comply with the notice by paying the figure stated therein otherwise he will be evicted. The matter of what is really reasonable compensation if a suit is brought is left entirely to the Co and even then the tenant still has the option of paying that amount and avoiding ejectment. It seems to me that all that 155 requires, therefore, is a notice and at opportunity given to the tenant to settle the matter, as it were, out of Court attention has been drawn to the case of Afiladdi v. Satis Chandra Banerjee 29 C.L.J. 40 (1919) which is a case relating to sec. 155 of the Bengal Tenancy Act. There is some discussion of the provisions of sec. 155 there by the learned Judges in which it appears to have been stated that the section specifically requires the amount of compensation to be specified. Certainly, the present question was never considered in that case, namely, whether a notice would be bad if no specific figure were mentioned in the notice. It is not very clear from the judgment whether in the particular case the amount of compensation was specified or not. The impression I get from reading the judgment is that the amount was specified, at any rate, in the plaint the amount was specified as Rs. 566-4 and the Munsif awarded Rs. 250. The real point decided in the case was that even though the breach were not capable of remedy, nevertheless the Court could under sec. 155 determine the amount of compensation necessary to meet the damage caused and the tenant would have an opportunity then of depositing that amount and avoid ejectment. The trial Court had fixed the amount of compensation and given an opportunity for payment. The lower Appellate Court had reversed this decree and directed that the Plaintiff was to get khas possession by evicting the Defendants on the ground that the breach was not capable of remedy. The result is that the appeal is allowed. The decree of the lower Appellate Court is set aside.

Some modification is, however, still required in the decree of the trial Court. In the first place, two months'' time from date is hereby given in which the Defendant must pay the sum of Rs. 40 awarded as compensation to the Plaintiff. In default of payment in due time the Plaintiff will be entitled to evict the Defendant. Secondly, if the Defendant is not to be evicted there can clearly be no decree for mesne profits. That part of the decree of the trial Court directing payment of Rs. 10 as mesne profits is to be deleted. Thirdly, the trial Court directed the Defendant to remedy the deterioration caused to the bank of the tank in the suit within one month of date. It is pointed out that there is nothing in the notice served under sec. 155 referring to any damage caused to the bank of the tank and requiring the Defendant to remedy such deterioration. In default of any notice the suit in so far as it relates to this alleged damage cannot be entertained. Therefore, the direction of the trial Court in this respect is set aside. The Appellant is entitled to his costs. Leave to appeal under clause 15 of the letters Patent has been asked for and is refused.