Ram Prosad Sing vs Sonatan Ghose Bajal

Das Gupta J.

This appeal is by the Defendant in a suit for ejectment and for recovery of arrears of rent and mesne profits, on the allegation that the Defendant''s tenancy had been determined by notice to quit. The defence was two-fold; first that there was no valid notice and secondly that the rent was Section 7-8 instead of Rs. 8-2 as claimed by the Plaintiff.

The courts below have rejected the defence contentions and round that the notice was valid and sufficient and there was determination of the tenancy in accordance with law. They have also given a decree at the rate of Rs. 8-2 as claimed by the Plaintiff for arrears of rent and also at the same rate for mesne profits.

The suit was instituted on November 20, 1945 and was decreed by the trial court on June 14, 1947. This was affirmed on appeal on March 27, 1948. The second appeal to this Court was presented on July 12, 1948 and was pending on the date, the Calcutta Thika Tenancy Ordinance, 1948, came into force and was pending in this Court on February 28, 1949, when the Calcutta Thika Tenancy Act, 1949, came into force, on October 21, 1952, when the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, came into force and again in 1953 when the Calcutta Thika Tenancy Act, 1953, came into force.

It was contended before us on behalf of the Appellant that the learned court below was wrong in thinking that the notice was valid and sufficient. It appears to me that this finding, based as it is, on the finding of fact that the tenancy was according to the Bengali calendar month is a finding with which we cannot interfere.

The only fact that remains for consideration is the question that appears to have been raised on November 26, 1952 that the tenant is a thika tenant within the meaning of the Calcutta Thika Tenancy (Amendment) Ordinance of 1952 and asking for investigation into that fact by a competent court. In filing this application, the Appellant had apparently in mind the provisions of Section 5(2) of the Ordinance. As however no decree had been passed between the commencement of the Calcutta Thika Tenancy Act, 1949, and the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, the provisions of Sub-section (2) of Section 5 of the Ordinance have no application. It appears to me however that we are bound by the authority of the decision in Mahadeb Ram Kahar Vs. Tinkori Roy, to hold that the provisions of the Calcutta Thika Tenancy Act of 1949 as amended by the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, shall apply to this present case. It is not possible to decide on the record as it stands whether the Defendant was a thika tenant within the meaning of the Calcutta Thika Tenancy Act, as though evidence has been given that he erected a structure on the land for residential and business purposes, the contention of the learned advocate for the Respondent that in spite of this he may not be a thika tenant within the meaning of the Act because of Sub-clause (c) in Clause (5) of Section 2 as it now stands, namely, that thika tenant does not include a person "who holds such land under the another person and uses "or occupies such land as a khatal," requires consideration. As there was no scope for this point being investigated at the time the suit was pending in the trial court, evidence was not directed to this point. It is, therefore, proper that this matter should be properly investigated.

I would, therefore, set aside the decree of the courts below in so far as it is for ejectment of the Defendant and direct that the case be disposed of by the court below in accordance with law after giving both parties opportunity to adduce evidence on the question whether the Defendant is a thika tenant. If the court finds that the Defendant uses the land as a khatal, the decree for ejectment will be confirmed and the appeal therefrom dismissed. If the court decides that he does not use the land as a khatal and is a thika tenant within the meaning of Clause (5) of Section 2 of the Calcutta Thika Tenancy Act, he will transfer the case for disposal to the Controller. The decree for arrears of rent as passed by the court below will stand. As the decree for mesne profits must be varied in view of the order we have passed as regards ejectment, I think it right that instead of the decree for mesne profits we should give the Plaintiff a decree for Rs. 999-6 for the period of occupation of the land by the Defendant from the date of termination of the tenancy till the end of Pous 1361 B.S. If in respect of this period the Defendant has deposited any amount with the Rent Controller, the Plaintiff will be at liberty to withdraw it.

The parties will bear their own costs in this Court.

Guha, J.

I agree.