Sarat Chandra Mondal and Others vs Satish Chandra Baidya and Others

Chunder, J.—This is an appeal against an appellate decree of the Subordinate Judge of 24-Parganas, reversing that of the Munsif, First Court, Alipore. As found by the Courts below, the plaintiffs are the superior landlords of the land. They conferred a tenancy with ordinary Chandina right in 1325 B.S., on defendant No. 1. There can, therefore, be no contest now that defendant No. 1 was the holder of a non-agricultural tenancy which was created after the Transfer of Property Act, 1882, and he had been such holder for a continuous period of more than 12 years. Defendant No. 1 did not contest and we are no longer concerned with him. The result might have been different if he had contested.

Defendant No. 2 is the under-tenant. He claims that in view of section 88 of the West Bengal Non-Agricultural Tenancy Act, sections 7|6 apply to his case and he has got protection under the Act and therefore no permanent injunction can be granted against him.

Mr. Bakshi''s contention is that section 88 has no application. It only applies to suits or appeals in ejectment. The suit was in 1947 and the Act came into force in 1949. Hence a question of section 88. This will be a construction against the wording of the Act itself. The Act itself will seem to show that it applies to all suits, all appeals and to all proceedings between a landlord and a non-agricultural tenant and such proceedings may include proceedings in execution for ejectment. The object of the Act as explained in the preamble is to make better provision relating to the law in respect of certain non-agricultural tenancies in West Bengal. It is not merely an Act for regulating ejectment and incidental proceedings therewith. It deals with the general law on the subject as far as it goes.

Mr. Bakshi next points out that section 7 read with section 6 will not apply to the present case even in view of section 88, because u/s 22 an under-tenant can get protection of this Act only if he is, as far as we are concerned in the present case, holder of a lease in writing for a period of not less than 12 years. In the present case, it has been found by the Courts below that defendant No. 1 had only an ordinary Chandina tenancy, that is he was an ordinary tenant, who could be ejected at any time at will following the law. Therefore, he could grant any permanent tenancy as he had not that right in 1947.

The learned Judge was wrong in interpreting bemeadi lease as meaning that it is a lease which will enure beyond 12 years. Bemeadi lease means that it is not for a fixed period and therefore has the ordinary incidence of a lease for a tenancy at will between the landlord and the tenant. As it does not come within section 22 as a lease for a period of not less than 12 years, the under-tenant does not get the protection which a tenant ordinarily may get under the Non-Agricultural Tenancy Act. Therefore, the protection of section 7 read with section 6 does not apply to him. The Munsif was, therefore, right in decreeing the suit of the plaintiffs and the learned Subordinate Judge wrong in reversing him The decree of the Munsif will be restored with costs in all the Courts, the time to remove the structures running from this date will be two months.