1. This is a plaintiffs second appeal against the reversing judgment of Sri B. S. Patnaik, Subordinate Judge of Cuttack, dismissing the plaintiff's suit in ejectment of the defendants on the allegation that the defendants are monthly tenants in respect of 'Khas mahal' Holding No. 1261 on a monthly rental of Rs. 23/-. As the plaintiffs required their house for their own use, they made an application before the House Rent Controller for permission to bring a suit in ejectment ; but as the defendants agreed to vacate it by the end of 1-5-1948 proceedings were dropped by consent of parties and notice to quit was served by the plaintiffs on 10-7-48 which was received by defendant 1 on 12-7-48.
2. This holding originally belonged to Debendra Nath Basu who died, long after 1937 'leaving Satyendra, Samarendra, sachindra and his widow as his heirs. The notice was served by Satyendra, Samarendra and Sachindra. During the pendency of the suit, a registered 'kabala' was executed in favour of the present plaintiff-appellant on 28-12-48 by the three sons and the widow.
3. The defence was that the notice was an invalid notice inasmuch as the notice was not by all persons who represented the entire estate of the landlord.
4. The learned trial Court decreed the plaintiff's suit which was dismissed by the lower appellate Court on two grounds namely, (i) that the notice was defective, and (ii) that the suit was barred under Sections 5 and 13, House Bent Control Act f Act 5 of 1947).
5. The first contention of Mr. L. K. Dasgupta, appearing on behalf of the appellant, is that the notice in a case of the tenancy in the case is not necessary at all inasmuch as the tenancy is a tenancy-at-will terminable without notice. This contention, of course, is advanced for the first time in this second appeal. In the notice itself the defendants were not taken to be tenants at will; it was alleged they were paying monthly rental. That was exactly the allegation in the plaint itself. On this allegation that a monthly rental is paid and as no case of tenancy at will was ever alleged, the presumption under Section 106, T. P. Act comes into operation that the tenancy is taken as a monthly tenancy inasmuch as it was a tenancy for residential purpose.
6. The second ground taken by Mr. Dasgupta is that no notice is necessary, because by virtue of the agreement in the proceedings under the Rent Control Act, 1947, the monthly tenancy had terminated and a new tenancy created. The new tenancy was a tenancy for fixed period terminable on a fixed date as agreed upon between theparties. He relies upon the order of the Rent Controller which runs as follows:
'Parties present. They come to amicable understanding and applicant agrees that his party will have no objection for the opposite parties continuously occupying the house till the middle of April 1948 and opposite party undertakes to vacate the house by that date at the latest and will not put forward any excuse whatsoever to avoid it. Proceedings dropped'.
His contention is that the terms, as indicated by the order, clearly indicate a tenancy terminable at a particular date, it appears, of course, that the terms run to the effect of superseding the previous tenancy and making the tenancy terminable on a particular date. But the terms really are not terms valid in law to supersede the previous tenancy inasmuch as the agreement is not between the tenant and the persons representing the entire estate of the landlord. On that date of the agreement of 17-9-47 as provided for in the Hindu Women's Right to Property Act, (Act 18 of 1937) the widow had subsisting interest in the properties left by her husband. The widow was not a party to the agreement.
Mr. Dasgupta contends strongly that Satyendra, who had brought the proceedings as 'Karta' of the family and had entered into agreement as 'Karta' of the family, binds the widow also by virtue of the agreement. I was referred to the allegation in the petition by Satyendra. There he alleged that he had two other brothers, Samarendra and Sachindra and as the 'Karta' of the joint family he had brought the proceeding. In my opinion, when the fact remains that the three brothers are denying the rights of the widow all along and in view of the position that even in the petition Satyendra did not acknowledge the rights of the widow, he cannot really represent the rights of the widow. As such, the agreement cannot in law supersede the previous tenancy from month to month. In my opinion, therefore, notice was necessary and inasmuch as notice was given by the three brothers, the widow not joining even though she had interest in the property manifestly at the time of the notice, the notice was invalid in law for evicting the tenant.
7. There is further bar also to the present frame of the suit under the provisions of Sections 5 and 13, House Rent Control Act, 1947. Mr. Dasgupta contends that on account of the reason that the previous monthly tenancy was superseded by a tenancy terminable at a particular date as indicated in the order recording the compromise between the parties, the case is not really governed by Section 5 or Section 13, House Bent Control Act, 1947, but it is really governed by Section 10. As I have already observed that the previous monthly tenancy was not really superseded by a subsequent tenancy as indicated in the deed of compromise, the point will not prevail. But that apart, it appears to me on a perusal of Section 5 that if a monthly tenancy was existing on the date of the commencement of the House Rent Control Act, 1947, the tenancy will be governed by the provisions of the Act, and any subsequent agreement cannot override the provisions of Sections 5 and 13. The first part of Section 5 runs thus:
'Subject to the provisions of this Act and notwithstanding anything to the contrary contained in an agreement or law where a tenant on a tenancy from month to month is, on the date of the commencement of this Act, or any other date subsequent thereto, in possession of any house & c..............'
The language indicates that where the tenant on a tenancy from month to month Is in possessionof the property on the date of the commencement of the Act, the provisions will apply and that notwithstanding an agreement between the parties. The provisions of this Act give some protection to the tenant against eviction by the landlord in spite of his (tenant's) contracting otherwise. On this reading of Section 5, it is manifest that the suit was not really entertainable as contemplated under Section 13 of the Act without the permission of the House Rent Controller given to the landlord for bringing a suit in ejectment. There is a decision of the Special Bench of our Court reported in -- 'Krishna Chandra v. Sushila Mitra', AIR 1951 Orissa 105 (P. B.) (A) to the effect that the provisions of Section 13 are mandatory and that the permission of the House Rent Controller is necessary in order that the suit may be maintainable.
8. Mr. Dasgupta further contends that the order passed by the House Rent Controller on 17-9-47, even if it is based on agreement between the parties, is to be construed as giving permission to the plaintiff to bring a suit in ejectment, and, he supports this contention by drawing my attention to the petition and the counter-petition filed by both parties at the initial stage of the proceedings. A plain reading of Section 13 requires that the permission of the House Rent Controller has got to be obtained by the landlord for enabling him to entertain a suit. The order, as quoted above, only records the compromise between the parties but is perfectly silent on this pertinent feature that by virtue of the order the Controller was permitting the plaintiff to bring a suit in ejectment. So my finding is that the suit is barred on account of both the reasons which were the basis of the judgment of the lower appellate court.
9. It may be observed that the present plaintiff Chhoti appears to have 16 annas interest by virtue of the 'Kabala' (Ex. 2). In 'kabala' (Ex. 2) all the three brothers and the widow are vendors. In the earlier part of the 'Kabala' of course there is an allegation that the widow has no interest but there is subsequently a statement to the effect that whatever interest the vendors have in respect of the properties which are the subject matter of the 'Kabala', they have been conveyed by virtue of the deed. As such, the widow being one of the vendors and having executed the document on her own free will has, by virtue of the 'Kabala' extinguished whatever rights she had in the property. The present plaintiff has got 16 annas interest which was owned by the deceased Debendra.
10. With these observations, the appeal is dismissed. There will be no order for costs in thisCourt. Leave prayed for is refused.