Surendra Nath Koley vs Suhas Chandra Mitra

P.N. Mookerjee, J.—This is a Defendant''s appeal arising out of a suit for ejectment under the West Bengal Non-Agricultural Tenancy Act. The suit has been decreed by the three Courts below. Hence this appeal under Clause 15 of the Letters Patent by the Defendant.

The Plaintiff''s case, inter alia, was that the disputed tenancy started under a lease for 9 years, which expired in Aswin, 1351 B.S. The Plaintiff''s case further was that, after the expiry of the said lease the Defendant continued on the land under a monthly tenancy of which the year was according to the Bengali calendar or from Baisakh to Chaitra. The language used in the plaint for this purpose was somewhat unhappy and inartistic but, reading the plaint as a whole, it may very well be inferred that the Plaintiff''s case on this point was really a case of a new tenancy or novation of contract, stipulating the year of the tenancy according to the Bengali calendar.

The defence was that the Defendant occupied the disputed land as a tenant from a much earlier period, namely, 1337 B.S. and, even if his tenancy be taken to have started under the aforesaid lease, after the expiry of the same in Aswin, 1351 B.S., he held over on the same terms and conditions with the result that the year of the tenancy was from Kartick to Aswin of the Bengali year.

In the plaint, it was further stated that the Defendant''s above tenancy was terminated as required by law, vide Section 9(l)(b)(iii) of the above Act, by a proper six months'' notice, expiring with the year of the tenancy according to the Plaintiff, i.e. with the end of Chaitra. This notice was challenged by the Defendant as illegal, invalid and ineffective, obviously upon the plea, as stated above, that the year of his tenancy was from Kartick to Aswin of a Bengali calendar so that the above notice would not be a notice, expiring with the end of the year of the tenancy, and would thus be in invalid notice.

The three Courts below have, however, accepted the Plaintiff''s case of a new tenancy or novation of contract with the year of the tenancy running from Baisakh to Chaitra according to the Bengali calendar and, upon that view, they have concurrently held that the notice of the ejectment in the instant case was a valid notice sufficient for the purpose of the above statutory provision. Upon that view, the Plaintiff''s suit has been decreed by the three Courts below.

Before us Mr. Mukherji, appearing for the Defendant-Appellant, has contended that, on the plaint as it stands, the case of a new tenancy or novation of contract would not be available to the Plaintiff. As we have already said the relative language in the plaint was somewhat unhappy and inartistic, but, taking a broad view of the matter and reading the plaint as a whole it may well be taken that the Plaintiff''s case in the plaint was a case of new tenancy or novation of contract. In that view, we would reject the above submission of Mr. Mukherji in support of this appeal.

We may also point out that, even if the case of a new tenancy, as pleaded by the Plaintiff, be not accepted, the position would be that the Defendant would be a trespasser from after the expiry of his lease in Aswin, 1351 B.S., or a person, continuing in possession after the said period as a tenant, whose tenancy under the registered lease has expired. It is not possible, in the facts of this case, to accept any claim of holding over according to law as such holding over would require voluntary assent of the landlord, which would not be inferable in the instant case. The Plaintiff, no doubt, accepted rent upto the year 1355 B.S., but that was at a time when the Bengal Non-Agricultural (Temporary Provisions) Act, 1940 (Ben. IX of 1940) was in operation and he had practically no option in the matter: vide, in this connection, Maya Chanda v. Mandadari Sannamat (1959) 64 C.W.N. 448 . From such acceptance voluntary assent would not be inferable and, in spite of the Plaintiff''s inaccurate or inartistic language in the plaint that the Defendant ''held over'', that holding-over cannot have any legal effect. It was merely a statement of fact without any legal implication or consequence u/s 116 of the Transfer of Property Act, which governs the relationship between the parties in case of holding-over under the law. The position, therefore, would be that the Defendant would be on the land as an ex-tenant after the expiry of his registered lease in Aswin, 1951 B.S. and would thus be amenable to eviction u/s 9(l)(a) of the above Act. In either view, therefore, the decree for ejectment, passed in the instant case, will have to be affirmed, the Plaintiff not having complained against the imposition of condition, as stipulated under the proviso to Clause (in) to Section 9(l)(b).

In the premises, this appeal will fail and it will be dismissed.

There will, however, be no order for costs in this appeal.

Murari Mohan Dutt, J.

I agree.