Nani Gopal Bhattacharjee vs Smt. Rani Ujjala Debi and others

Brij Narain, J.C.

This is a second appeal against the judgment and decree dated 21-12-1955 passed by the learned District Judge, Tripura in Civil Appeal No. 77 of 1955 dismissing the appeal on contest and confirming the judgment dated 7-7-1955 passed by the learned Subordinate Judge, Tripura in Civil Suit No. 134 of 1954.

It appears that Nani Gopal Bhattacherjee appellant and Nepal Chandra Das Gupta defendant No. 2 got the house described in the schedule given in the plaint and situated in Agartala town on a monthly rent of Rs. 150/- by means of the registered kabuliyat dated 27-6-1357 T. E. which provides for termination of the tenancy on two months'' notice on either side.

It has further been laid down in this kabuliyat that if the tenants failed to vacate on determination of the lease they would be liable to pay damages at the rate of Rs. 10/- per day. The plaintiff-respondent served the notice Ext. 1 dated 27-3-1952 determining the lease with effect from the expiry of the month of June, 1952 but the defendants failed to vacate and so this ejectment suit was brought and a claim for compensation was also made.

The suit was contested by the defendant No. 1 on the ground that no valid ejectment notice had been served and the claim for damages was too high. The learned Subordinate Judge decreed the suit and the learned District Judge maintained the ejectment decree but reduced the claim for compensation to Rs. 300/- only. The defendant has now come to this Court in second appeal.

The learned Advocate for the appellant has urged that the present suit was barred by the principle of res judicata and the decree was defective as no summons had been served on Nepal Chandra Das Gupta defendant No. 2. It has further been argued by him that the ejectment notice should have been according to Bengali calendar and the appellant should have been allowed two months'' time before the service of ejectment notice and two months after the notice had been served on him and as this was not done, the suit for ejectment was legally not maintainable.

Lastly, it was urged that as a provision had been for allowing compensation at the rate of Rs. 10/- per day, the tenants could remain so long as they paid the amount of compensation and till then no question of ejectment could arise. It has also been urged that as the plaintiff accepted rent from the defendants'' sub-tenants and she violated the terms of the kabuliyat Ext. 3, she was not entitled to any relief in this suit.

So far as the question of the present suit being barred by res judicata is concerned I find that there is no doubt that a previous suit No. 8 of 1951 had been brought and was dismissed but its judgment Ext. 4 shows that the plaintiff as lessor wanted to determine the tenancy which bore a rental of Rs. 60/- and here the rent of the tenancy is Rs. 150/- per mensem and so it becomes clear that the subject matter of the two suits is entirely different and so the decision in the earlier suit No. 8 of 1951 cannot operate as res judicata in this suit.

So far as the notice Ext. 1 is concerned it is in accordance with the provisions of the kabuliyat Ext. 3. It provides two months time from the date of the receipt of the notice and beyond this nothing more was required.

The argument, that this notice should have given two months time to vacate according to Bengali calendar cannot be deemed to be of any force and the ruling reported in ''Trilochan Nath v. Kali Pada Mallik''. 1954 Cal. 243 (AIR V 41) (A), has no application to the facts of the present case as this ruling merely lays down that there was a presumption in that case that the tenancy ran from first day to the last day of a Bengali month: In the present case there is absolutely no justification for such a presumption as the terms of the kabuliyat do not lay down any such condition.

It has been contended that as the summons on the defendant No. 2 was not served, no ejectment decree could be passed. There is no doubt that the defendant No. 2 was a joint tenant along with the defendant No. 1 but it is established in this case that this defendant has left the premises long ago and he is unheard of and the defendant No. 1 alone has been in possession for sometime past.

The summons had been sent in this case through registered post and then they were affixed to a conspicuous part of the property and later on they were published in the gazette also and subsequent to the service of notice determining the tenancy the lessors served another notice upon the tenants on 20-5-1952 vide Ext. 6. The plaintiff tried all the means and when the Court declared the service to be sufficient the case was proceeded with.

The law does not require any party to achieve the impossible and as the plaintiff could not do anything more in this matter, I think the learned Subordinate Judge was right in holding that service of notice on defendant No. 2 was sufficient in this case. As such it cannot be contended that no decree for ejectment could be passed against the tenant defendant No. 1 simply because the whereabouts of the defendant No. 2 were unknown. I, therefore, see no force in this contention of the appellant.

The next contention of the learned Advocate for the appellant is that two months time should have been allowed to elapse after an oral demand for ejectment and then a two months'' notice should have been served determining the tenancy but I do not and any justification for such course in the provisions of the kabuliyat which simply provides two months'' notice.

The provisions of S. 106 of the Transfer of Property Act will not be applicable to this case as the provisions in the kabuliyat Ext. 3 provide a contract to the contrary and those provisions are self-sufficient.

The last contention of the appellant is that the tenant was not liable to ejectment at all in this case for so long as he continued to pay compensation at the rate of Rs. 10/- per diem. I am unable to accept this argument as the provision relating to payment of compensation does not lay down that the tenant would not be ejected so long as he is prepared to pay the compensation.

The provision is only meant to give some idea of the proper damages to which the plaintiff would be entitled if the tenant did not stick to the provisions of his own contract embodied in the lease Ext. 3 and this provision cannot be interpreted to mean that the title of the plaintiff would be extinguished and she would not be entitled to get back her property for her own purposes if the appellant chose to continue to pay compensation for an unusually long period.

The natural interpretation of this clause is that ejectment proceedings would continue and the plaintiff would be entitled to compensation at an enhanced rate from the date of the termination of the tenancy to the date of her actually recovering possession through Court.

The argument that the plaintiff accepted rent from the sub-tenants of the appellant at some earlier stage and so the present suit should be dismissed cannot be supported on any legal principle nor on any principle of equity, justice and good conscience and so I see no force in it.

I, therefore, see no force in the present appeal and I dismiss it with costs to the respondent No. 1. The remaining respondents will neither pay nor receive any costs.