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Mahasukrai Ramrichpal Vs. Kishori Charan Law - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 22 of 1972
Judge
Reported inAIR1977Cal122,81CWN376
ActsTransfe of Property Act, 1882 - Sections 106, 108 and 114A; ;West Bengal Premises Tenancy Act, 1956 - Section 13
AppellantMahasukrai Ramrichpal
RespondentKishori Charan Law
Appellant AdvocateGuruprasad Ghosh and ;Sundarananda Pal, Advs.
Respondent AdvocateAbhijit Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredPrasad v. Prem Kumar
Excerpt:
- .....contends that the landlord is not required to serve a notice under section 114-a in case of monthly tenancy on holding over after the expiry of lease. in such a case the tenancy is governed under the provisions of the west bengal premises tenancy act. this is a self contained act and the provisions of the act fully apply in case of monthly tenancies and that being so, when there is specific provision for ejectment for breach of the clauses (m), (o) and (p) of section 108 of the transfer of property act under the west bengal premises tenancy act it is not required for the landlord to serve a notice under section 114-a of the transfer of property act. mr. banerjee in this connection also draws our attention that all along in the courts below the tenant took up the position that the.....
Judgment:

N.C. Mukherji, J.

1. This is an appeal against the judgment and decree passed by the learned Additional District Judge, 12th Court at Alipore in Title Appeal No. 1038 of 1970 dated 30th April 1971 affirming those of the learned Subordinate Judge, 6th Court at Alipore in Title Suit No. 67 of 1963 passed on 19th June 1970. The facts of the case may briefly be stated as follows :--

The respondent filed a suit for ejectment and mesne profits against the defendant, who was a monthly tenant at a rent of Rs. 400/- payable according to the English calendar month. According to the terms of the tenancy, the defendant was not to make any addition or alteration to the premises without the consent of the plaintiff in writing. The plaintiff was informed that the defendant has constructed a pucca temple and two sheds with pucca walls etc. with C. I. roof on the suit premises. These structures are of permanent nature and have been illegally made without the knowledge and consent of the plaintiff. Thus the defendant has acted contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment.

2. The defence is that the structures in question were made in the year 1958 and in the first part of 1359 with the knowledge and consent of the plaintiff. The defendant also challenges the legality and validity of the notice of ejectment. Both the Courts below found that the notice of ejectment was legal and valid and the defendant violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment Being aggrieved, the defendant has preferred the present appeal.

3. Mr. Guruprasad Ghosh, learned Advocate appearing on behalf of the appellant takes several points, most of which were not taken in the Courts below. In the first place, Mr. Ghosh contends as no notice of forfeiture was given by the landlord to the defendant according to the provisions of the Transfer of Property Act the suit is not maintainable. Mr. Ghosh submits that in the present case the lease was for five years which was to expire on 1-5-1958. But after the expiry of the lease, the defendant continued in possession with the consent of the plaintiff on payment of rent and thereby became a monthly tenant by holding over. But in such a case if the plaintiff wants to evict the defendant on the ground that he has violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the landlord is required to serve a notice upon the defendant according to the provisions of Section 114-A of the Act. This section provides that 'Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach.....'.

4. Mr. Abhijit Banerjee, learned Advocate appearing on behalf of the respondent contends that the landlord is not required to serve a notice under Section 114-A in case of monthly tenancy on holding over after the expiry of lease. In such a case the tenancy is governed under the provisions of the West Bengal Premises Tenancy Act. This is a self contained Act and the provisions of the Act fully apply in case of monthly tenancies and that being so, when there is specific provision for ejectment for breach of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act under the West Bengal Premises Tenancy Act it is not required for the landlord to serve a notice under Section 114-A of the Transfer of Property Act. Mr. Banerjee in this connection also draws our attention that all along in the Courts below the tenant took up the position that the West Bengal Premises Tenancy Act applies. Order No. 33 dated 8th of February 1965 is an order by which the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act was allowed and the defendant's application against delivery of possession was struck off. The defendant at the time of hearing of the said application filed certain challans to show that certain amounts were deposited. The Court considered those deposits and was of the opinion that the defendant did not comply with the provisions of Section 17 (1) of the Act.

5. Mr. Banerjee next refers to Order No. 51 dated 25th of April 1966. That was an order passed on the defendant's application filed under Section 17-A of the West Bengal Premises Tenancy Act. This application was rejected after contested hearing. Again it is seen from Order No. 76 dated 14th of January 1969 that the defendant filed an application under Section 17-C of the West Bengal Ordinance No. VII of 1967. That application was disposed of by the learned trial Court by ordering the defendant to deposit in Court the total sum of Rs. 7,600 within 60 days from date. Mr. Banerjee submits that this being the stand taken by the defendant, the defendant now cannot be allowed to say that the provisions of the West Bengal Premises Tenancy Act do not apply. We have considered the legal position and we are of the opinion that in case of monthly tenancies provisions of the West Bengal Premises Tenancy Act apply and the landlord is not required to serve a notice under Section 114-A of the Transfer of Property Act before filing a suit for ejectment on the ground of breach of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.

6. In the next place, Mr. Ghosh submits that the notice of ejectment which was served by the plaintiff on the defendant is illegal and invalid as after the holding over, the monthly tenancy was from second of a month to the first of the following month. The notice which sought to determine the tenancy by the end of the month cannot, therefore, be considered as a valid notice. In the present case the lease was for five years and was to expire on 1st of May 1958. The registered deed of lease is Ext. 2. Mr. Ghosh submits that according to the provisions of Section 110 of the Transfer of Property Act where the time by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. That being so the lease terminated on 1st of May 1963 and the monthly tenancy after holding over commenced from 2nd of May. The notice of ejectment is Ext. 3. Notice is dated 18th of October 1963. Mr. Ghosh contends that as by the notice the defendant was asked to deliver vacant and peaceful possession on the expiry of the month of November 1963, the notice is bad because the monthly tenancy was from second of a month up to the first of the following month. In support of his contention Mr. Gho.sh refers to the decisions reported in 37 Cal WN 1 = (AIR 1932 PC 279), (Benoy Krishna Das v. Salsiccioni) and : AIR1975SC1111 , (Dattonpant Gopalarao Devakate v. Vithalrao Marutirao). Both the cases support the contention raised by Mr. Ghosh. But in this particular case we are to consider carefully the expressions used in the notice. The relevant portion of the notice reads as follows :--

'You are hereby given notice to quit and vacate the premises No. 10, Kali Pro-sanna Singhee Road, Cossipore and deliver' vacant and peaceful possession thereof to my client immediately on the expiry of the month of November 1963 or at the end of a month of your tenancy which would expire next after one month from the receipt of this notice'.

If the landlord simply asked the defendant to deliver possession on the expiry of the month of November 1963 then according to the decisions referred to above the notice must be held to be invalid. But in this case alternatively it has been stated that the defendant is required to deliver possession on the expiry of the month of November 1963 or at the end of a month of his tenancy which would expire next after one month from the receipt of this notice. In this connection Mr. Banerjee refers to a decision reported in : AIR1953Cal352 , (Jatindra Nath v. Malai Ram Show). The facts of the case are almost similar. P. N. Mookerjee, J. referred to the passage occurring in Mulla's Transfer of Property Act, Edition 3 at page 653 which runs thus : 'It is usual after mentioning the date of the anniversary of the tenancy to add in the alternative some general words as at the end of the year of the tenancy which will expire next after the end of one half year from the date of the service of this notice'. That passage suggests that demand for possession in the alternative form is perfectly valid and well recognised in law. His Lordship relying on some English decisions was of the opinion that 'There is also nothing, either in principle or in the authorities, which runs counter to the suggestion of the learned Author and, accordingly, I am inclined to accept the same'. His Lordship on this point relied on two other decisions Sankar Ram v. Tulsi Bhagat, AIR 1921 Pat 307 and Ganga, Prasad v. Prem Kumar, AIR 1949 All 173 and came to the conclusion that the notice to quit was good, valid and sufficient. The relevant portion of the notice-in the case before his Lordship is as follows :--

'Notice is hereby given to you to vacate and deliver up possession of the said two rooms with the end of 31-7-1945 or at the end of a month of your tenancy which would expire next after 15 days from the receipt of the notice'.

We have already referred to the relevant portion of the notice in the present case and we find that the terms of the relevant portion of the notice are almost similar. We therefore negative the contention raised by Mr. Ghosh.

7. Mr. Ghosh next contends that the structures said to have been construct--ed by the defendant are of temporary nature and as such no decree for ejectment ought to have been passed. Both the Courts below have considered this question and have come to the conclusion that the structures are of permanent character. They have also come to the conclusion that the structures were made without the knowledge and consent of the plaintiff. This being the concurrent finding of the Courts below we are not inclined to interfere in the second appeal.

8. Mr. Ghosh lastly submit that by acceptance of rent the landlord has waived the right of forfeiture. We have already held that the present case is governed by the provisions of the West Bengal Premises Tenancy Act and that a statutory tenant is required to pay or deposit rent and by acceptance of that rent the landlord does not waive his right of forfeiture. For the reasons stated above all the contentions raised by Mr. Ghosh fail and accordingly the appeal fails.

9. In the result, the appeal is dismissed. There will be no order as to costs.

B.C. Ray, J.

10. I agree.


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