Mt. Bibi Saida and others vs Dukhi Gope

Mohammad Noor, J.—This second appeal arises out of a suit instituted under S. 155, Ben. Ten. Act, for ejecting the defendant from his holding on the ground that he has used it in a manner which rendered it unfit for the tenancy. The misuse complained of was that the defendant through his transferee caused erection of some houses on ten kathas of land out of the holding which is of ten bighas.

The trial Court gave, the plaintiffs a decree for ejectment with a condition that if the defendant pays to the plaintiffs Rs. 100 as compensation the decree would not be executed. This decree of the trial Court has been confirmed in appeal by the learned District Judge of Monghyr. The trial Court came to the conclusion that the misuse was incapable of remedy as the defendant transferred portion of the holding to third parties and gave them right to erect buildings, and it was beyond the power of the defendant to get the buildings removed. The plaintiffs in their grounds of appeal before the learned District Judge challenged this finding; but it appears from the judgment of the lower appellate Court that it was conceded before it that under the circumstances of the case the misuse was not capable of remedy. The appeal was dismissed, and the plaintiffs have preferred this second appeal.

It has been contended on their behalf that as according to the finding of the Courts below the misuse was irremediable an absolute decree for ejectment ought to have been passed, and not a decree conditional on nonpayment of the compensation fixed. The learned advocate has argued that S. 25, Ben. Ten. Act, gives the landlord an absolute right of ejectment if the tenant uses the land of his holding in such a way as to render it unfit for the purposes of the tenancy and S. 155 of the Act prescribes the mode of enforcing that right. In my opinion the contention is not sound. The plain reading of the two sections makes it perfectly clear that the landlord has got no absolute right of ejectment. Section 25 is for the protection of the tenant and prescribes that a tenant shall not be liable to ejectment except in execution of a decree passed under the provisions of the Act. S. 155 prescribes the nature of the decree in an ejectment suit brought by the landlord on the ground of misuse. It starts with prescribing that notice must be given to the tenant who has misused the land. The notice must, as has been held in several Calcutta cases which I do not propose to discuss, ask the tenant to remedy the misuse or breach if it is capable of remedy and in any case to pay compensation. The learned advocate contended that the words "in any case" meant whether the tenant remedied the misuse or not. In my opinion it means in every case as has been held in Pershad Singh v. Rampratap, (1895) 22 Cal 77 and whether the misuse or breach is remediable or not, compensation must be asked for and this notice is the sine qua non for institution of the suit. If compensation is not asked for, notice is defective and a suit will not lie. It is obvious that if the legislature intended to give to the landlord an absolute right of ejectment in case of irremediable misuse or breach, they would have provided for a notice in that term but the notice required to be given to a tenant is a notice asking him to remedy the misuse if it can be done, and whether it can be done or not to pay up compensation. Cl. (4), S. 155 again clearly indicates that the decree cannot be executed if compensation is paid. If the misuse is remediable, it must be remedied also. Paying of compensation is essential in every case whether the misuse or breach is remediable or not. If the tenant complies with the requirements of Sub-Cl. (4) i.e., if he pays the compensation fixed by the Court and remedies the misuse or breach if it is remediable, the decree cannot be executed. In my opinion the plaintiffs were entitled to compensation only under the circumstances of the case. The decree passed in the case is the only decree which can be passed, and the appeal fails. I would dismiss it with costs.

Luby, J.

I agree.