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Deb Das Lala Vs. Sk. Abdul Gani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal358
AppellantDeb Das Lala
RespondentSk. Abdul Gani and ors.
Cases ReferredSusil Chunder v. Birendrajit Shah
Excerpt:
- .....110, so far as it is relevant for the purposes of the present appeal, is in these terms:where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. where no day of commencement is named, the time so limited begins from the making of the lease. where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.3. if the time limited by a lease of immovable property commences from a particular day and is a year or a number of years, in the absence of any express agreement to the contrary, the lease shall last during the whole of the anniversary of the day.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of a suit for ejectment after service of notice to quit under Section 106, T.P. Act. The defendant admittedly is a tenant-at-will. His defence to the suit so far as it is relevant for the purposes of the present appeal is that the notice to quit served on him is bad in law inasmuch as it did not expire with the end of a month of the tenancy. The Munsif overruled this defence and decreed the plaintiff's suit. The tenant appealed to the lower Appellate Court. The learned Subordinate Judge who heard the appeal has dismissed the plaintiff's suit for ejectment on the ground that the notice served on the defendant was insufficient. Hence this second appeal by the plaintiff landlord. The only point for determination therefore in this appeal is whether the notice served on the tenant was sufficient in law.

2. The defendant admittedly held the disputed land under a registered lease which was executed by the defendant on 2nd Sravan 1318. Prom this kabuliat, it appears that the lease was for a term of seven years from 1318 to 1324 B. S. The learned Subordinate Judge on the authority of the decision of the Judicial Committee of the Privy Council in Benoy Krishna Das v. Salsiccioni and also in view of the provisions of Section 110, T.P. Act, held that the term of the lease expired on the mid-night of 1st Baisakh 1325 and as by the notice to quit the defendant was asked to vacate the land by the end of the month of Asar the notice did not expire with the end of a month of the tenancy. The learned Judge's view is that after the expiration of the lease for seven years the defendant held over as a monthly tenant and that this monthly tenancy commenced from the mid-night of 1st Baisakh 1325. Section 110, so far as it is relevant for the purposes of the present appeal, is in these terms:

Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease. Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

3. If the time limited by a lease of immovable property commences from a particular day and is a year or a number of years, in the absence of any express agreement to the contrary, the lease shall last during the whole of the anniversary of the day from which such time commences. In this particular case it is true that no particular day has been mentioned as the day from which the time limited by the lease commenced. But the intention is clear that the lease commenced from 1st Baisakh 1318. Ordinarily therefore the lease shall last up to the mid-night of 1st Baisakh 1325. But the express stipulation in the lease that the time limited by the lease is up to the end of 1324 clearly indicates that there was an express agreement to the contrary within the meaning of Section 110, T.P. Act. The intention of the parties -evidently was that the lease was to commence from the beginning of 1318 and was to end at the end of 1324. In view of this express agreement between the parties, the lease lasted only up to the last day of the year 1324 B. S. and did not last up to [the mid-night of 1st Baisakh of the next year. This view is not inconsistent with the decision of the Judicial Committee on which the learned Judge has relied inasmuch as in that case there was no agreement to the contrary and there was nothing in that case to show that the lease was to end before the whole anniversary of the day from which the lease commenced had expired. The learned advocate appearing on behalf of the respondent also invited my attention to another decision of this Court in Susil Chunder v. Birendrajit Shah : AIR1934Cal837 . In that case also, there was nothing to indicate that the term of the lease was to terminate before the whole anniversary of the day from the time limited by the lease commenced had expired. The learned Subordinate Judge was therefore not right in holding that the lease for seven years which commenced from the beginning of 1318 ended on the mid-night of 1st Baisakh 1325. In view of the terms of this lease, there cannot be any doubt that the term of the lease expired on the last day of 1324 and consequently the monthly tenancy commenced from 1st Baisakh 1325. The notice asking the tenant to vacate the lands by the end of the month of Asar was therefore a valid and proper notice.

4. The result therefore is that this appeal is allowed. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored. The appellant is entitled to get his costs both in this Court as well as in the lower Appellate Court.


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