1. This appeal arises out of a suit for arrears of rent, for ejectment and for damages for use and occupation of the premises after termination of the tenancy by notice. The material facts are these:
2. There was an oral contract between the parties regarding the lease of premises No. p. 15 Lansdowne Road Extension (Ground floor) and defendant 1 wrote a letter to plaintiff on 11-11-1941 setting out the terms agreed upon.
3. The monthly rent was originally Rs. 55, but was reduced in 1942 by oral agreement to Rs. 40, in the period following enemy air raids on Calcutta. On 22-4-1943, plaintiff sent a letter to defendant 1 calling upon the latter to give vacant possession of the flat at the end of the last day of May. Defendant failed to comply. Hence the suit.
4. The defendant contended that the time limited by the lease was expressed as commencing from 1-12-1941, therefore in computing the period of the lease, December 1 was to be excluded, and therefore the lease expired at the end of 1-12-1942, and that each subsequent month of the lease expired at the end of first day of the calendar month by virtue of the provisions of Section 110, T.P. Act. Consequently the notice of 22-4-1943, was not a valid notice. The defendant also claimed the protection of the Calcutta House Rent Control Order and pleaded that the building was not bona fide required by the landlord for his own occupation.
5. The learned Munsif held that the notice was legal, valid and sufficient, without going into any consideration of the nature of the lease or of the notice; he also held that the landlord required the house bona fide for his own occupation. He accordingly decreed the suit in part only, reducing the amount claimed as arrears of rent.
6. Defendant appealed and the appeal was heard and dismissed by the Additional District Judge, 3rd Court Alipur.
7. The learned Judge regarded the lease as a lease for one year only, and in view of the provision that 'the rent shall be payable in advance, on or before the 5th of every calendar month' held that the parties intended the tenancy to run from the 1st of each calendar month to the end of the calendar month. The learned Judge therefore held that the notice was legal and valid. He also held that the landlord bona fide required the premises for his own occupation.
8. Defendant 1 has appealed to this Court. The appellant wished to argue that in view of subsequent events, the landlord no longer required the premises for his own occupation and prayed that I should take additional evidence on this point.
9. I am of opinion that the appellant is not entitled to reagitate this matter in second appeal, that the findings of fact in the Courts below are conclusive on the subject, and that the appellant is not entitled to adduce evidence of subsequent events in order to have a fresh adjudication on this disputed point.
10. The appellant contended that the notice was not a valid notice and for this contention relied on the decision of the Privy Council in Benoy Krishna Das v. Salsiccioni and pointed out that the very argument relied upon by the learned District Judge has been considered and repelled in that decision.
11. The contract was an oral contract. It is stated in the appellant's letter of 11th November 1941, that one of the terms of the agreement was:
(2) I shall occupy the premises at lease for one year and thereafter the tenancy shall be terminated on one month's notice on either side.
12. It is clear from this that neither party was to be at liberty to put an end to the tenancy in less than a year and a month. In other words the lease was for a period exceeding one year. But under Section 107, T.P. Act, such a lease could be made only by a registered instrument and the only evidence of the lease, which the Courts were entitled to take into consideration, was the registered document itself or secondary evidence of the contents of the document. As there was no registered document the terms of the contract could not be proved for the purposes of the present suit.
13. The appellant accepted this position but argued, relying on the case in Adinath Bhattacharjee v. Krishna Chandra Bhattacharjee : AIR1943Cal474 that there was a valid oral lease for one year and that consequently para. 2 of Section 110, T.P. Act, was still applicable.
14. I am not satisfied that this is the correct view. It seems to me that the actual contract between the parties was one which the law does not allow to be proved and given effect to, and that therefore, there was no valid contract between the parties. In that case, under Section 106, T.P. Act, the lease shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring, with the end of a month of the tenancy: Aklu v. Emman 3 A.I.R. 1916 Cal. 358.
15. Since, there is absence of a valid contract, it cannot be said that the time limited by the lease was 'expressed as commencing from a particular day' and therefore, para. 1 of Section 110, T.P. Act, is not applicable.
16. Since, moreover, by virtue of Section 106, the lease is deemed to be a lease from month to month, it cannot be said that the time limited by the lease was a year or a number of years, and therefore para. 2 of Section 110 is also inapplicable.
17. We are thus driven back to Section 106 and to a determination of the question, what was the month of the tenancy, unrestricted by the extremely technical rule laid down in Section 110.
18. There can be no doubt that the parties treated the English calendar month as the month of the tenancy, and I hold that that was the month. In this view, the notice of 22nd April 1943, was a legal and valid notice. I therefore order that this appeal be dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is asked for and is refused.