Mt. Hamida Khatoon vs Shibananda Bhandari and Others

Ram Labhaya, Ag. C.J.

This appeal arises out of an ejectment suit. The suit was decreed in the trial Court. On appeal, the learned Sub-Judge found that the notice of ejectment was invalid, allowed the appeal and dismissed the suit.

The only question that arises is--whether the notice of ejectment did not fulfil the requirements of law.

The suit was for khas possession of the land by demolition of houses of the contesting Defendant. Plaintiff''s case was that the Defendant had been in possession having constructed houses on the land in suit measuring 1 Katha) 10 Lessas on payment of Rs. 15/- per annum as rent. As she required the land for her own use, she sent a notice of ejectment to the contesting Defendant on 15-7-1948 asking him to vacate the land by removal of superstructures by 31-8-1948. The demand made in the notice was not complied with. The suit out of which this appeal arises was then instituted.

The Defendant pleaded that the tenancy was for horticultural purposes. The learned Munsiff found that the tenancy was for residential purposes, and the notice was in conformity with the requirements of law. The learned Sub-Judge, on appeal, held that the Defendant was an ''annual tenant by contract'' Section 106, T.P. Act did not apply and Defendant was entitled to six months'' notice on the ground that the tenancy was from year to year.

It has been contended by the learned Counsel for the Appellant that even if it is held that the agreement between the parties was for a tenancy from year to year, Section 106, T.P. Act would be applicable. He argues that a tenancy from year to year can only be created by a registered lease as required by Section 107, T.P. Act. No agreement for a lease from year to year can take effect unless it is made by a registered lease. In this case, therefore, in spite of the agreement between the parties, no valid lease from year to year came into existence. The Defendant, however, remained in possession on payment of annual rent. There being no valid lease from year to year, Section 106, T.P. Act will apply. The tenancy created by legal implication or from the fact of Defendant''s possession on payment of rent, would be from month to month, as the tenancy was not for agricultural or manufacturing purposes.

Normally, in the absence of a written lease, a presumption of annual tenancy may be drawn from the fact that rent was payable annually. Where, however, the agreement of annual tenancy is inoperative & unenforceable in law, the tenancy would be terminable on a fifteen days'' notice expiring with the end of a month of the tenancy. It was so held in--''Aklu v. Emman'' AIR 1916 Cal 358 (A). This proposition of law has very recently been approved by their Lordships of the Supreme Court in-- Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, It was laid down in this case that to exclude the operation of Section 106, T.P. Act the contract should be a valid contract. It need not be express, and may be implied, but if it is no contract in law, Section 106, will be operative and will regulate the duration of the lease. In this case there was a registered'' Kabuliyat by which a Receiver purported to take a settlement of the land in suit for building purposes for a period of 10 years at an annual rent. Only the first payment of annual rent was made. The Kabuliyat was not an operative document u/s 107, T.P. Act. It was held that the tenancy created by implication of law should be deemed to be from month to month since its commencement. The presumption arising from the stipulation as to the payment of annual rent could not come in the way of the application of Section 106, T.P. Act as the stipulation was contained in an inoperative document. The present case is covered by the decision. Though the agreement of lease is not in writing, the stipulation as to payment of annual rent is a condition of an inoperative lease. Section 106, T.P. Act, therefore, comes into play. The tenancy, therefore, would be from month to month and a fifteen days'' notice expiring with the end of the month of the tenancy would be valid in law.

The learned Counsel for the Respondent has urged that the tenancy was for horticulture. This plea could not be. substantiated. The learned trial Judge found that the tenancy was for residential purposes. The learned Sub-Judge on appeal did not give any express finding on this point. He observed that what-ever the nature of the tenancy, the main fact that by arrangement between the parties, it was a lease from year to year, entitled the Defendant to a six months'' notice. In the absence of a clear finding from the appellate Court on this point, I have heard the learned Counsel for the Respondents on this question of fact, & I see no reason to differ from the finding of fact arrived at by the learned Munsiff. The residential purpose of the tenancy is undoubted.

The learned Counsel has also contended that even if the purpose of the tenancy is residential, where the agreement between the parties--even though invalid & unenforceable--provides for a lease from year to year and reserves yearly rent, a reasonable notice expiring with the end of the year of the tenancy is necessity. According to him, nothing short of six months'' notice would be reasonable in these circumstances. He relied on--''Heman-gini Chowdhrain v. Gobinda'' 29 Cal 203 (C)--''Kishori Mohun Roy Chowdhry v. Nand Kumar Ghosal'' 24 Cal 720(D) and--''Ganga Singh v. Chairman District Board Patna'' AIR 1919 Pat 108 (E) in support of this proposition. The contention raised is opposed to the decision of the Supreme Court referred to above. It is also not supported by the authorities relied on. In--''29 Cal 203(C), the tenancy was admittedly annual land was leased on annual rent. The lease was not in-valid or unenforceable. In--''24 Cal 720 (D), also the tenancy was created by a registered document. It reserved yearly rent. It was taken to be an annual tenancy. It was also agreed that Section 106, T.P. Act, did not apply to the tenancy. It was held that the tenant was entitled to six months'' notice expiring with the end of the year of the tenancy. In--''AIR 1919 Pat 108(E)'', it was held that where no specified term is fixed for the service of a notice, the principles of English law apply and at least a six months'' notice must be given to determine a tenancy where the contract between the parties is a contract based upon a yearly tenure at a yearly rent. Even'' in this case, there was no question of the invalidity of the lease between the parties. The lease was annual. It provided for notice, but the period of notice was not "specified. These cases are not in point, and they do not support the contention raised.

The learned Counsel has also argued that the agreement of tenancy in this case did not amount to a lease and was not, therefore, invalid u/s 107, T.P. Act. He thought that a lease from year to year or a lease reserving an yearly rent was not within the scope of Section 105, T.P. Act. No authority has been cited in support of this contention, and I see no merit in it. Section 105, T.P. Act defines'' ''lease''. It is a transfer of a right to enjoy Immovable property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised.

It is contended that a lease from year to year or a lease reserving, yearly rent is not a lease for a certain time. This argument is due to misapprehension. Section 105, T.P. Act, does not require that the term or period of the lease should be certain on the date of the lease. The period of the lease can be express or implied. A provision for a period implied by law or usage would be enough. This is clear from the language of Section 106, T.P. Act, which provides that in the absence of a contract or local law or usage to the contrary, a lease will be deemed to be from year to year, if it is for agricultural or manufacturing purposes, and from month to month if it is for other purposes. The agreement of lease in this case is not outside the scope of Section 105, T.P. Act, and is hit by Section 107, by reason of the absence of a registered deed of lease.

For the reasons given above, I hold the notice of ejectment was valid and it effectively terminated the tenancy. The Defendant, therefore, is evitable.

The Defendant demanded compensation. The trial Judge allowed him only Rs. 25/-. The learned Sub-Judge on appeal did not go into the question of compensation as he dismissed the appeal on the ground of insufficiency of notice. The case, therefore, has to be remanded to him for disposal of the appeal according to law.

The appeal is allowed. The order of the learned Sub-Judge is set aside and the case is remanded to the learned Subordinate Judge u/s 151, CPC for disposal of the appeal after determining the amount of compensation that the Defendant may be entitled to.

I make no order as to costs in this Court.