Amitabha Dutta, J.
1. This is an appeal by the plaintiff from the appellate decision of the learned Additional District Judge at Jalpaiguri modifying the decision of the learned Subordinate Judge at Jal-Paiguri in Title Suit No. 13 of 1969 for declaration of title, recovery of possession and raesne profits.
2. The plaintiff's case was that one Keramuddin was the owner of the suit Dremises comprised in holding No. 144, in Ward No. 16 of Siliguri Municipalityas described in the schedule to the plaint. He sold the suit premises to Sawarmal Tulsan by a registered deed of sale dated 3-7-1961. Thereafter, the plaintiff purchased the suit premises from the said Sawarmal Tulsan bv a registered deed of sale dated 22-2-1965 for a consideration of Rs. 4,000/- and became the absolute owner of the same. The pro forma defendant No. 5 was the eldest son of the defendant No. 1 and the defendants Nos, 3 and 4 were the other two sons of the defendant No. 1 and the defendant No. 2 was the widow of pre-deceased son of the defendant No. 1 Smt. Bindubasini Debi. The pro forma defendant No. 5 as the head of the family of the defendants was a monthly tenant in the suit premises at a rent of Rs. 25/- per month payable according to Bengali calendar months under Keramuddin. He vacated the suit premises in Agrahayan 1362 B. S. and since then he lived separately from the principal defendants in another house. The principal defendants thereafter, possessed the suit premises illegally without any right, title or interest therein.
3. The principal defendants contested the suit by filing a written statement and an additional written statement, Their case was that they as refugees from East Pakistan came to Siliguri town and thereafter began to reside in the suit premises from the 1st Aswin of 1354 B. S. and that since then they were in adverse possession of the suit premises for more than 12 years. Thus they acquired title to the suit premises. The pro forma defendant No. 5 never occupied the suit premises and he all along lived separately from the principal defendants since their migration from East Pakistan. The alternative case of the defendants was that assuming and not admitting that the pro forma defendant No. 5 was a monthly tenant in the suit premises under the previous landlord Keramuddin, his alleged tenancy was not determined according to law and hence the plaintiff could not succeed in the present suit for recovery of possession of the suit premises.
4. The Trial Court decreed the suit holding that the plaintiff had title to the suit premises by purchase, that the monthly tenancy of the pro forma defendant No. 5 in the suit premises which commenced in September, 1948. came to an end afterhe left the suit premises in Agrahayan 1362 B. S. corresponding to November, 1955 long before the institution of the present suit and that the principal defendants failed to prove their plea of adverse possession of the suit premises for 12 years. The court of appeals below has modified the decision of the trial Court by holding that although the plaintiff has title to the suit premises, he is not entitled to recover, khas possession and mesne profits, as such claim of the plaintiff has not been made in the plaint on the basis of termination of the contractual tenancy of the pro forma defendant No. 5 in the suit premises and that the plaintiff cannot recover possession of the suit premises without establishing any of the grounds for eviction under the West Bengal Premises Tenancy Act 1956 in a proper suit for eviction brought before a competent court in accordance with the provisions of the said Act. The learned Additional District Judge has, therefore, disallowed the plaintiff's prayer for recovery of khas possession of the suit property and mesne profits.
5. Both the courts below have found that the suit premises belonged to Keramuddin under whom the pro forma defendant No. 5 Jyotish Chandra Bagchi was a monthly tenant therein at a rent of Rs. 25/- per month from September, 1048. Keramuddin sold the suit premises to Sawarmal Tulsan by a registered conveyance dated 3-7-1961 and from the latter the plaintiff/appellant purchased the suit premises by a registered deed of sale dated the 22nd May, 1965. It has also been found that Keramuddin instituted O. C. Suit No. 56 of 1955 in the local court of Munsif against the pro forma defendant No. 5 for eviction and arrears of rent. The tenant/defendant contested the said suit which was decreed in part for arrears of rent only, on the 27th September, 1956 as the landlord's claim, for eviction was dismissed on the ground that no valid notice to quit had been served on the tenant. The tenant/defendant took the plea in his written statement in that suit that he had left the suit premises after duly informing the plaintiff/landlord in the latter part of Aswin 1362 B.S. But as the said suit was decreed only for arrears of rent and no decree for eviction was passed, it must be held that the pro forma defendant No. 5 of the present suit was a monthly tenantin the suit premises on 27-9-1956 when the said suit. viz. the O. C. Suit No. 56 of 1955 was disposed of. It is no doubt a common case that the pro forma defendant No. 5 did not reside in the suit premises after Agrahayan 1362 B. S. i. e. December, 1955. The principal defendant No. 1's evidence is that her eldest son Jyotish (pro forma defendant No. 5) never lived in the suit premises but her version has not been accepted both by the trial court and the 1st appellate court. The contesting defendants in the instant suit have sought to rely on the copy of an ejectment notice dated 26-12-1963 (Ext. E) addressed to the pro forma defendant No. 5 on behalf of Sawarmal Tulsan, the then landlord purporting to terminate the contractual tenancy and threatening to sue him for ejectment from the suit premises on the ground of default. But this document was filed on 28-3-1972 about 2 1/2 months after the much belated additional written statement. There is no evidence as to how the principal defendants got the copy of the purported notice of ejectment. Nor is there any evidence of service of the said notice upon the tenant pro forma defendant No. 5. The address given there was Siliguri without mention of any premises number or the name of any street or local area. The learned Additional District Judge has rightly placed no reliance on the said document.
6. In the context of the facts of this case as stated above, it has been contended by the learned advocate for the plaintiff/appellant that as the pro forma defendant No. 5 left the suit premises in Agrahayan 1362 B. S. (December 1955) without any intention to return or re-occupy the same, he not having contested the present suit at any stage of trial or appeal, it should be held that he surrendered the suit premises and there was termination of his tenancy prior to the institution of the present suit. In this connection, reliance has been placed on the Division Bench in the case of Mehromal v. T.N. Behel, AIR 1954 Nag 305 in which it has been observed by the learned Judges that if a tenant leaves the tenancy without placing the landlord in possession thereof and the landlord acquiesces in it, the tenancy cannot subsist although the landlord has not been placed anv physical possession thereof. But the aforesaid reported case arose out of creationof a sub-tenancy in violation of the relevant Rent Control Order 1949 and the question was whether the Rent Controller could allot it treating the tenancy as vacant. In the present case the facts are different and there is also no pleading or evidence of acquiescence by the landlord who on the contrary was then proceeding with the suit for ejectment and arrears of rent being O. C. Suit No. 56 of 1955 which was disposed of on 27-9-1956. The learned advocate for the appellant has also referred to the decision in the case of Dhanapal Chettiar v. Yesodai Animal, : 1SCR334 . in support of his proposition that where there is forfeiture of the tenancy for non-payment of rent by the tenant no notice of ejectment is necessary and a suit for his eviction can be filed without such notice. But in the case cited, the Supreme Court has held that in order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 of the Transfer of Property Act. Making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of determination of the lease by a notice under Section 106 of the Transfer of Property Act. The Supreme Court has further held that even if the lease is determined by forfeiture under Section 111(8) of the T. P. Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only after he has incurred the liability to be evicted under the State Rent Act, not otherwise. According to the Supreme Court if the said Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief such a notice will have to be given (see page 1748). Thereafter, according to the said decision of the Supreme Court a notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956 is necessary for bringing a suit against a premises tenant on any of the grounds mentioned in Section 13 (1) of the Act. The contention of the learned advocate for the appellant that no such notice is necessary for eviction of a tenant on the ground of default is not tenable. Moreover, his contention has no foundation in thepleading. There is no pleading or evidence to show that the pro forma defendant No. 5 was a defaulter at the time of the institution of the present suit nor is there any allegation in the plaint that the pro forma defendant No. 5 had surrendered the tenancy prior to the suit. It is also contended on behalf of the appellant that the pro forma defendant No. 5 is not a tenant as he does not come within the definition of 'tenant' in Section 2 (h) of the West Bengal Premises Tenancy Act and in this connection. reference is made to the expression 'includes any person continuing in possession after the termination of his tenancy' in the said definition. But such contention cannot stand as it cannot be said that the tenancy has been terminated in the instant case. Reference has also been made on behalf of the appellant to the case of Surya Properties Ltd. v. Bima-lendu Nath Sarkar, : AIR1964Cal1 where the learned Judges have observed that if the tenant vacates and delivers up possession, of the premises the question of filing a suit for eviction does not arise. But the said decision does not apply to the facts and circumstances of the present case as there was no delivery of possession by the tenant to the landlord. The learned advocate for the appellant has referred to Section 15 of the West Bengal premises Tenancy Act 1956 to show that a tenancy can be relinquished and in this connection the Supreme Court decision in the case of W. H. King v. Republic of India. : 1952CriLJ836 has been cited. In that case a distinction has been made between assignment and re-linquishment. It has been held that the consent of the landlord to assign is not necessary in the absence of a contract or local usage to the contrary. But in the case of relinquishment, it cannot be a unilateral transaction; it can only be in favour of the lessor by a mutual agreement between them. The relinquishment of a tenancy terminates the lessee's rights and lets in the lessor and is equivalent to surrender. But in the present case as it has been already pointed out and that there is no pleading of relinquishment of the tenancy by the tenant in favour of the landlord. Nor there is any evidence in support of that theory. It is settled law that where a claim hasnever been made in the pleading no amount of evidence can give rise to it for consideration of the Court. Reference has also been made on behalf of the appellant to Section 19 (2) of the said Act. But there is no pleading or evidence of any notice given by the tenant to the landlord in accordance with the said provision.
7. It has been rightly contended on behalf of the respondent that the suit as framed by the plaintiff not being a suit for eviction of a tenant under the West Bengal Premises Tenancy Act, 1956 and as the tenancy of the pro forma defendant No. 5 continues, the plaintiff cannot get a recovery of possession of the suit premises during the subsistence of such tenancy, whatever be the defence of the principal defendant and notwithstanding the non-appearance of the pro forma defendant No. 5 to contest the suit at any stage. In my view, this contention is well founded. It has been held by the Full Bench of this Court in Gurudas Biswas v. Charu Panna Seal, : AIR1977Cal110 that whether the ejectment suit governed by the West Bengal Premises Tenancy Act. 1956 is defended or not, the court must be satisfied that it has been established on evidence that the grounds alleged in the plaint take away the tenant's special protection conferred by Section 13 (1) of the Act. In the instant case no such ground has been alleged in the plaint and no notice under Section 13 (6) of the Act was served on the pro forma defendant No. 5 before the filing of the suit. So, it cannot be said that the jural relation of landlord and tenant between the plaintiff and the pro forma defendant No. 5 terminated before the suit. The English law in the case of Skinner v. Geary ((1931) 2 KB 546) laying down the principle that a residential tenant who had not lived in the suit premises for a long period and lived elsewhere without any intention. to return and re-occupy the suit premises could not get the protection of the Rent Restriction Acts is not applicable in India. Continuous residing in the premises is not a condition of protection under the West Bengal Premises Tenancy Act, 1956.
8. I. therefore, hold that the decision of the learned Additional District Judge should be upheld and there is nomerit in this appeal. The appeal is dismissed. No order is made as to costs.