Tirtha Nath Ghosh vs Sri Sri Iswar Banlinga Deva

Renupada Mukheejee, J.—This Civil Revision case under Article 227 of the Constitution of India has arisen under the following circumstances:

Petitioner Tirtha Nath Ghose held two thika tenancies under the opposite party, who is a shebait of two deities. One such holding bears premises No. 53/2, Shalimar Road of Howrah Municipality and another holding bears No. 53/3, Shalimar Road. The opposite party landlord instituted two proceedings u/s 5 of the Calcutta Thiha Tenancy Act for ejectment of the Petitioner on grounds which shall be mentioned and discussed later in my judgment. Both the applications were allowed on contest by the Munsif, 2nd Court, Howrah, exercising the function of a Controller. Appeals were preferred by the tenant, but they were dismissed by the learned Subordinate Judge, who heard them. The Petitioner has obtained the present Rule against that portion of the appellate order, which governs holding No. 53/2 and I am not concerned in the present Rule with the other holding.

Premises No. 53/2, Shalimar Road measures about three cottas and the tenant has built some structures on the land containing ten rooms. The landlord instituted the ejectment proceeding on grounds (i), (iv) and (v) of Section 3 of the Calcutta Thika Tenancy Act. These grounds respectively are (i) that the tenant was a defaulter, (ii) that the landlord required the land for building and developing and (iii) that the tenant had failed himself to use or occupy the holding for his own residential, manufacturing or business purposes for more than six consecutive months. The validity and bona fides of these grounds were challenged by the tenant but his objections were over-ruled both by the Controller and the Appellate Court. So the tenant has come up to this Court invoking the High Court''s power of superintendence under Article 227 of the Constitution.

Before dealing with that part of the case which rests on a consideration of some of the provisions of the Calcutta Thika Tenancy Act, I must dispose of some of the general objections raised by Mr. Bagchi on behalf of the Tenant-Petitioner, which relate to the status of the tenant and to the validity of the notice of ejectment served upon him.

Mr. Bagchi contended, in the first place, that the Petitioner before this Court was a tenant from year to year and not a monthly tenant as has been found by the lower Appellate Court and so u/s 106 of the Transfer of Property Act, the tenancy was terminable by six months'' notice expiring with the end of the year of the tenancy and not by three months'' notice as was given in this case u/s 4(b) of the Calcutta Thika Tenancy Act. This contention of the learned Advocate for the Petitioner does not appear to be sound to me. The lease, which was executed between the predecessors of the parties, was exhibited before the Controller. It shows that the tenant took lease of some bagat lands for the purpose of residence by erecting non-permanent structures for an indefinite period. No doubt, an annual rent of Rs. 12-12 was reserved, but even this annual rent was payable in two equal instalments in Aswin and Chaitra of each year. Such a lease u/s 106 of the Transfer of Property Act taken for residential purpose is terminable by 15 days'' notice expiring with the end of the month of the tenancy and by three months'' notice u/s 4(b) of the Calcutta Thika Tenancy Act. I hold that the Petitioner''s tenancy was not a tenancy from year to year and the period of notice was adequate.

The next ground urged by Mr. Bagchi on behalf of the Petitioner regarding the invalidity of the notice was that even, assuming the tenancy to be a monthly one, the month of the tenancy must be taken to be commencing from the 19th of each month and expiring with the 18th of the succeeding month, because the lease was executed on the 19th Sravan, 1327 B.S. and no date of commencement was mentioned in the lease. Mr. Bagchi, therefore, argued that the three months'' notice given by the opposite party should have expired with the 18th of Aswin and not the end of that month as mentioned in the notice. In this connection Mr. Bagchi cited the case reported in Surjya Kumar Mukherjee and Ors. v. Trilochan Nath and Ors. (1955) 59 C.W.N. 526 and contended that no evidence of the date of commencement of the tenancy or of the termination of the month of the tenancy having been given by the landlord and the lease having been executed on the 19th Sravan, 1327 B.S., the notice should have been held to be invalid and insufficient by the lower Appellate Court.

The above contention of Mr. Bagchi when carefully examined would not stand scrutiny. In paragraph 2 of his application filed before the Controller, for ejectment of the tenant, the landlord specifically stated that the tenancy was according to Bengali calender month which of course, means a full month from the 1st day till the last day of the month. This averment about the month of the tenancy not having been denied in the written statement filed by the tenant, must be taken to have been admitted by the tenant, and an admitted fact does not require any proof unless the admission is otherwise explained by its maker. So the facts of this case are clearly distinguishable-from the facts of the case reported in Surjya Kumar Mukherjee and Ors. v. Trilochan Nath and Ors. (Supra). Moreover, the manner of payment of rent in this case also gives a sure indication about the month of the tenancy. A long series of dakhilas filed by the Petitioner himself would show that rent has all along been paid for one year or more full years and in making such payments, the year has always been taken to be commencing from the 1st Baisakh and ending in Chaitra and not as commencing from 19th Sravan and ending on the 18th Sravan of the following year. There is no indication in the lease that it was to commence from the date of its execution. So it must be held that the lease created a tenancy from the commencement of the calender year or month as the case may be; vide Udaytara Saha v. Habibar Rahaman and Ors. (1937) 42 C.W.N. 771. I have, however, held that the tenancy was a monthly one and not a tenancy from year to year. That being so and rent having been paid according to Bengali calender year, it must be held that whatever might have been the date of execution of. the lease, the parties must have come to an understanding that the tenancy would run according to Bengali calender month. Rent was of course paid on annual basis for convenience of payments. So the contention of Mr. Bagchi that the notice served on the Petitioner was invalid on the ground discussed above must fail.

I now proceed to discuss the validity of the grounds on which the order of ejectment has been made by the Thika Controller and the Appellate Court. These grounds, as I have already stated, are three in number: (i) Default in Clause (1) of Section 3 of the Calcutta Thika Tenancy Act, (ii) requirement of the land by the landlord for purposes of building and development and (iii) failure of the tenant to occupy the major part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months. I shall first of all deal with the last two grounds.

Mr. Bagchi contended on behalf of the Petitioner that in holding that the landlord required the premises for purposes of building and development, neither the Controller nor the Appellate Court came to a finding that the landlord was truly and genuinely in need of taking the land into his khas possession for the above purpose. In this connection, Mr. Bagchi drew my attention to a case reported in Nagendra Nath Gupta v. Sm. Mohit Kumari Pandit and Ors. (1955) 59 C.W.N. 984 and contended that what the landlord had proved before the Controller was that he merely wished to take the land into his khas possession and he did not prove that there was an element of need from his side. In my judgment, this contention of Mr. Bagchi is not correct, because the lower Appellate Court was quite alive to the true legal position that u/s 3(iv), the landlord must establish some element of need. That Court has held upon a consideration of the evidence adduced before the Controller that such a need had been established on the part of the landlord. The evidence adduced before him might have been meagre, but that was accepted by both the Controller and the Appellate Court and so I do not see any reason to interfere on an application under Article 227 of the Constitution.

Mr. Bagchi then contended that the Controller and the Appellate Court were wrong in holding that because the Petitioner had not occupied the major portion of the structures standing on the disputed land for more than six consecutive months, he was liable to be ejected u/s 3(v) of the Calcutta Thika Tenancy Act. Mr. Bagchi argued that the relevant word used in this clause is holding and not "structures" and the holding of a thika tenant u/s 2, Clause (b) means "a parcel or parcels of land" and does not include structures. This contention of Mr. Bagchi is not supportable. It is true that the holding of a thika tenant means only the land vis-a-vis the landlord, the structures built on such land belong to the tenant and not to the landlord. But the structures are built on the land of the tenancy or rather on the thika holding and not on air and so when Section 3(v) says that the failure of the thika tenant to occupy the major part of the holding for his own residential, manufacturing or business purposes for more than six consecxitive months would be penalised by his ejectment, it means also that the failure of the tenant to occupy his structures on the thika land in this manner would meet with similar consequences. In this case, it was proved that there are ten rooms in the structures of which only one was occupied by the tenant. In these circumstances, the lower Appellate Court was right in holding that the tenant had failed to occupy the major part of the holding himself for his own residential, manufacturing or business purposes for the requisite period and an order for ejectment under this clause of Section 3 was, therefore, rightly made and the contention put forth on behalf of the Petitioner must fail.

A consideration of the grounds for ejectment based on Clauses (iv) and (v) of Section 3 of the Calcutta Thika Tenancy Act is sufficient for the purpose of disposal of the present application. I need not, therefore, enter into the question whether the tenant was a defaulter.

Before passing my final order I must note two other small contentions raised by Mr. Bagchi. He contended that under the proviso to Clause (V) of Section 3 of the Act the Petitioner should at least to deemed to be a tenant in respect of the room occupied by him. Such a claim of tenancy could have been put forth if ejectment had been ordered only under Clause (v), but as the landlord has also prayed for ejectment under Clause (iv), which is not governed by the proviso to Clause (V), no such claim of tenancy can be allowed.

The last contention urged by Mr. Bagchi was that in any case according to the terms of the lease the landlord should have made an offer of payment of compensation before instituting the proceedings in ejectment. I have gone through the relevant portions of the lease. There is no provision in the lease that such an offer was a condition precedent to the institution of any ejectment proceeding. As a matter of fact, the Controller has passed an order for assessment of compensation under Clause 4(b) of the Calcutta Thika Tenancy Act. The order of ejectment will be enforced only after such compensation is assessed and paid. That being the case, there is no ground for upholding the contention of Mr. Bagchi that an offer to pay compensation by the landlord was a condition precedent to the institution of the ejectment proceedings.

All the points raised by Mr. Bagchi on behalf of the Petitioner having failed, this Rule is discharged. Hearing fee is assessed at three gold mohurs.

Let the records be sent down early.