Skip to content


Jagannath Upadhyay Vs. Amarendra Nath Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 5 of 1956
Judge
Reported inAIR1957Cal479,61CWN841
ActsTenancy Law; ;West Bengal Non-agricultural Tenancy Act, 1949 - Sections 7, 9(1) and 90; ;Transfer of Property Act, 1882 - Sections 106, 107 and 110; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2 - Order 7, Rule 1 - Order 8, Rule 5; ;Limitation Act, 1908 - Section 12 - Schedule - Article 116; ;Calcutta High Court Appellate Side Rules - Rules 2 and 3
AppellantJagannath Upadhyay
RespondentAmarendra Nath Banerjee and ors.
Appellant AdvocateSitikanta Lahiri and ;Monohar Shah, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Sushil Kumar Banerjee, Advs.
DispositionAppeal partly allowed
Cases ReferredBhogilal v. Dakore Temple Committee and
Excerpt:
- .....we shall presently consider, the notice in the present case appears to have been at least a six months notice and the case would, therefore, attract ground (iii) of the above clause (b) and the proviso thereof and, indeed, it has been so treated by all the courts below and the decree for ejectment was made on that footing subject to payment of compensation as required by the said, proviso.12. the real contention of the appellant, so far as ejectment is concerned, was directed against the validity and sufficiency of the notice to quit and of its service, and that contention we shall at once state and take up for consideration.13. the notice appears to have been given, expiring with the bengali month of chaitra. the appellant's case is that the tenancy in the present case commenced from.....
Judgment:

P.N. Mookerjee, J.

1. This is a Letters Patent appeal from the judgment of our learned brother Guha J.

2. The appeal is by the defendant and it arises out of a suit for ejectment and for recovery of arrears of rent and damages.

3. According to the plaintiffs respondents, the defendant took settlement of the suit property under a lease which was evidenced by a kabuliyat, dated 24-7-1937, corresponding to Sravan 8. 1344 B. S. The period of the lease, as given in the kabuliyat, was seven years and the lease purported to run from Sravan 1344 B. S., expiring, therefore, with the end of Ashar, 1351 B. S. The defendant, however, continued in occupation and, as the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940) was in force from about May 1940 right up to about the same month 1949, when it was repealed and replaced by the permanent Act, the West Bengal Non-Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949). the plaintiffs could not take steps for ejectment of the defendant.

4. The present suit was instituted on 7-7-1950, after service of a notice to quit, expiring with, the month of Chaitra 1356 B.S. The notice appears to have been served on 15-10-1949, corresponding to 28th Aswin 1356 B. S.

5. The suit was decreed by the trial court except with regard to a small amount which was deducted from the plaintiffs' claim for rent on account of certain payments, made by the defendant, towards municipal taxes of the suit property, but the decree for ejectment was made subject to payment of compensation by the plaintiffs to the defendant under the proviso to Clause (iii) of Section 9(1) of the Act.

6. The lower appellate court affirmed the trial court's decision with only this modification that the deduction of the amount of taxes, of which the defendant was given credit against the plaintiffs' claim by the trial Court, was disallowed and the plaintiffs' claim for rent was decreed in full. The trial court and the lower appellate court both granted the plaintiffs interest at the rate of 12 1/2 per cent per annum.

7. On second appeal to this Court, the decree of the lower appellate court was maintained subject only to a small variation in the rate of interest which was reduced from 12 1/2 per cent per annum to 6 1/4 per cent per annum.

8. The defence to the plaintiffs' claim for ejectment was really of two-fold character. In the first place, absolute protection was claimed under the West Bengal Non-Agricultural Tenancy Act. The other defence under this head related to the question of validity and sufficiency of the notice to quit and of its service. The claim for arrears of rent was resisted mainly on the ground of limitation as to a part of the same, the plaintiffs claim being for six years' rent and the defence contending that the plaintiffs were not entitled under the law to get rent for more than three years.

9. Guha, J. overruled all the above defences and decreed the plaintiffs' suit, reducing, as we have said above, only their claim for interest from 12 1/2 per cent per annum to 6 1/4 percent per annum. The propriety of this decision is challenged in this Letters Patent appeal.

10. The defence under the West Bengal Non-Agricultural Tenancy Act cannot obviously succeed as the defendant's attempt to bring this case under Section 7 of the said Act has no substance. The tenancy admittedly commenced in 1937. The suit was instituted in 1950. Of the intervening years, the several years from about the middle of 1940 right UP to about the middle of 1949 would have to be excluded from computation under Section 7 of the West Bengal Non-Agricultural Tenancy Act by virtue of the express provisions of Section 90 of the said Act. That would leave us much less than a period of 12 years which is the minimum requisite period for a claim under Section 7. As matter of fact also, this part of the defence has not been pressed before us in this appeal.

11. The case really comes under Section 9 of the above Act or, more precisely, under Sub-section (1) Clause (b) of that section as the defendant was. at, the most, holding over at the relevant time and thus holding the land without a lease in writing. Subject, again, to the question of the validity and sufficiency of the notice to quit and of its service, which we shall presently consider, the notice in the present case appears to have been at least a six months notice and the case would, therefore, attract ground (iii) of the above Clause (b) and the proviso thereof and, indeed, it has been so treated by all the courts below and the decree for ejectment was made on that footing subject to payment of compensation as required by the said, proviso.

12. The real contention of the appellant, so far as ejectment is concerned, was directed against the validity and sufficiency of the notice to quit and of its service, and that contention we shall at once state and take up for consideration.

13. The notice appears to have been given, expiring with the Bengali month of Chaitra. The appellant's case is that the tenancy in the present case commenced from Sravan 8, 1344 B S. which was the date of the kabuliyat (Ext. 4) and that, accordingly, the month of the tenancy cannot correspond to the ordinary Bengali calendar month as we usually urderstand it, and, on that ground, he contends, the notice to quit, served in the present case, was invalid and insufficient.

14. It may be stated here that this case was really for the first time made before the Second Appeal Bench in this Court. In the two courts below, the appellant's specific case was that the tenancy, after the expiry of the lease, evidenced by the kabuliyat, Ext. 4 was a tenancy from month to month according to the English calendar and, in support of that case, he filed some rent receipts, alleged to have been given by one of the plaintiffs-landlords. Those receipts, however, were disbelieved by the trial court and by the lower appellate court as well and the defence contention of tenancy from month to month according to the English calendar was negatived. That finding was affirmed by Guha, J. and before us, therefore, no further contention could be successfully raised on that point.

15. In view of the findings of the courts below, to which we shall immediately refer, it was not disputed before us by Mr. Lahiri who appeared for the appellant that the tenancy was according to the Bengali calendar but it was argued by him that the month of the tenancy, though it would be under the Bengali calendar, would be from the 8th, of a Bengali month to the 7th of the following month as the tenancy actually commenced on the 8th. Reference was made in this connection to Stroud's Judicial Dictionary Vol. 1 /3rd. Edition) pases 384-5 to show that a calendar month does not necessarily run from the beginning or the first day of the usual particular month according to the calendar but it may well be from any particular day of a particular month to the corresponding preceding day of the month following according to the Calendar. That may be so where the commencement of the month differs from the usual beginning of the corresponding calendar month or, in other words, where the relevant month's commencement does not coincide with the first of the particular month according to the usual Bengali, English or other relevant calendar. Where, however, there is such coincidence, the month of the tenancy would correspond to the usual calendar month. The real question here is what is the commencement of the disputed tenancy, or, it is even narrower, as the plaintiffs' case on this point in the plaint, if there is any, has not been really denied in the written statement and must be accepted as admitted and so requiring no further proof. As we shall see later on, the appellant's real complaint on this part of the case is that the plaintiffs have not disclosed or proved the commencement of the suit tenancy and, accordingly, they cannot succeed on the point of notice.

16. The appellant principally contended here that neither in the plaint nor in their evidence, did the plaintiffs ever state anything about the date of commencement of the disputed tenancy and such date had not been proved in the present case and, in the absence of proof of the date of commencement of the tenancy, there can be no finding in favour of the plaintiffs on the question of sufficiency and validity of the notice to quit. We are unable to accept this contention. It is true that the kabuliyat, Ext. 4, in the present case cannot operate as a valid lease, it being a unilateral document, executed by the tenant alone, and so hit by Section 107 of the Transfer of Property Act. The tenancy, however, is admitted. In the plaintiffs' plaint in paragraph 1, it was clearly stated that the tenancy in question came into existence under the above kabuliyat. Ext. 4. The kabuliyat was no doubt dated 24-7-1937 (8th Sravan, 1344 B. S.) but it contained the statement that the tenancy was lor a Period of seven years from the month of Sravan 1344 B. S., up to the end of Ashar 1351 B. S. or. in other words, that the tenancy commenced on and from 1st Sravan, 1344 B. S. inclusive and the commencement of the tenancy was from the beginning of the Bengali month of Sravan. That was the plaintiffs' case as stated in paragraph 1 of the plaint where express reference was made to this kabuliyat (Ext. 4) under which, it was alleged, the tenancy in question came into existence. It is no doubt true that there was no specific statement as to the date of commencement of this particular tenancy. But, in our opinion, the reference to the kabuliyat (Ext. 4) in paragraph 1 of the plaint in manner and in the circumstances, stated above, was sufficient to make it clear that the plaintiffs' case was that the suit tenancy commenced with effect from Sravan 1, 1344 B. S. or, in other words, that its date of commencement was the (beginning of the Bengali month of Sravan so that, the tenancy being according to the Bengali calendar, its mouths would correspond to the Bengali calendar months or the months of the Bengali Calendar. Law. in our opinion, does not require an explicit or express specific statement in every case as to the date of commencement of the tenancy in order to entitle the plaintiff to succeed in his suit for ejectment on notice to quit. If the plaintiffs' case is sufficiently clear on this point, although there is no express specific statement as to the date of commencement of the tenancy and, if that case is proved and the notice be valid and sufficient with reference to the commencement of the tenancy as disclosed in such case, the plaintiffs are, in our opinion, entitled to succeed. The plaint case in the present case, as set out above, as to the commencement of the tenancy was not denied in the written statement. On the other hand, the Kabuliyat (Ext. 4) was admitted in the written statement where it was further distinctly averred that the defendant's tenancy was originally as stated in that Kabuliyat. That is enough for the plaintiffs' purpose as a case made and stated in the plaint and not denied in the written statement is to be taken as admitted and, being admitted, it need not toe proved. In the present case, further, the plaintiffs' case on this point is also supported by their evidence in court which shows that the tenancy in suit was from month to month according to Bengali calendar. On these materials, therefor, Guha, J. was, in our opinion, right in deciding in favour of the validity and sufficiency of the notice to quit. We may add also that Section 110 of the Transfer of Property Act, even if it applies to the present case, would not affect the position or make any difference (Vide Calcutta Landing and Shipping Co. v, Victor Oil Co. : AIR1944Cal84 .

17. In the preceding paragraph, we have referred to the Kabuliyat (Ext. 4) to explain the plaintiffs' case in the plaint. Such user of the Kabuliyat is perfectly legitimate as, although the document, is void as a lease as it contravenes Section 107 of the Transfer of Property Act, its user for collateral purposes is not prohibited (Vide Varada Pillai v. Jeevarathnam-mal, 46 Ind App 285: (AIR 1919 PC 44) (B). The kabuliyat (Ext. 4) is referred to in the plaint and the plaintiffs stated their case there with reference to it. The plaint case, therefore, cannot be gathered. or ascertained without reference to the Kabuliyat (Ext. 4). It is, accordingly, necessary to look into this document (Ext. 4) to understand and explain the plaintiffs' case and its user for that purpose, being collateral to the lease transaction, is also perfectly legitimate.

18. On the question of service, the defen-dant's case appears to be the weakest. The service was effected by registered post. The acknowledgment came back with a signature, purporting to be that 'of the defendant himself. The defendant no doubt in his evidence in court denied that signature but that denial was not accepted by any of the three courts below. In these circumstances, the plaintiffs are clearly entitled to the presumption, arising from the fact of service (despatch) of the notice by registered post which remains unrebutt-ed. The notice to quit, therefore, must be held to have been duly served upon the defendant appellant.

19. There remains now only the question of limitation, so far as the plaintiffs' claim for rent is concerned. That claim, as we have said above, was for six years and Guha, J. accepted the plaintiffs' contention that, in view of the kabuliyat, Ext. 4, which was a registered document, the case would come under Article 116 of the Indian Limitation Act and the plaintiffs would be entitled to six years' rent. On this point, however, we differ with respect from our learned brother. The kabuliyat (Ext. 4) was inoperative as a lease. It is difficult, therefore, to found or support the claim of rent on that document. That claim must succeed, if it is to succeed at all, otherwise and apart from that document. In the Present case, the tenancy with the rent, placed by the plaintiffs, is admitted and, in any event, it has been sufficiently proved by the other evidence on record. The plaintiffs, therefore would be entitled to a decree for rent, but they cannot, for purposes of limitation in that connection rely upon the kabuliyat, Ext. 4, as a contract in writing for payment of rent when clearly that kabuliyat cannot operate as a valid lease by virtue of Section 107 of the Transfer of Property Act. Rent is an essential and integral part of the lease and so the kabuliyat, if it is invalid as a lease, cannot form the basis of a claim for rent. Such claim cannot be founded upon it and. if that is correct, the document is utterly irrelevant for purposes of the law of limitation in that connection. As the particular tenancy cannot be founded on the kabuliyat but must be found, as it has actually been found, from other materials and apart from the said document, the claim for rent for that tenancy cannot be said to arise on the kabuliyat and its period of limitation will have to toe determined and computed without reference to that document which cannot be treated as or as embodying the relevant contract for that purpose. No reliance, therefore, can be placed on the kabuliyat (Ext. 4) for purposes of saving limitation for any part of the plaintiffs' claim for rent and. in that view, which wo may state, was not disputed by the Respondent's learned Advocate, Mr. Apurbadhan Mukherjee. the plaintiffs will not be entitled to any decree for rent for more than three years. The decision of Guha, J. will therefore, be modified accordingly and the decree for rent, given by him to the plaintiffs, for six years will be reduced to three years' rent. We need only add that the cases cited. namely, Ambalavana Pandaram v. Vaguran, ILR 19 Mad 52 (C); Khotappa v. Vallur Zamindar, ILR 25 Mad 50 (b) and Bouwang Raja Challaphroo v. Banga Senary 20 Cal WN 408: (AIR 1916 Cal 771 ;(2) > (E) before Guha J. and relied on by him, were cases which had nothing to do with the present Section 107 of the Transfer of Property Act and they cannot be regarded as authorities on the present point.

20. One other matter remains to be noticed. The decision of Guha J. was given on 18-12-1955. The present appeal under the Letters Patent was filed on 5-3-1956, which was beyond the period of sixty days, prescribed, in Rule 2, Chapter VIII, Appellate Side Rules of this Court, for the filing of such appeals. The Stamp Reporter, accordingly, reported that the appeal was time-barred and, the matter being put up before the learned Registrar, he expressed the view that, the question not being free from difficulty, it should be brought to the notice of the Bench at the time of hearing of the appeal in the presence of the Respondents. Our attention was accordingly, drawn to this matter before the appeal was opened and we intimated at that time that the appeal was in time and that, in any event, there was sufficient cause for the requisite extension of time. We proceed now to give reasons for our view.

21. It appears that, along with the memo of this Letters Patent appeal, a certified copy of the judgment, appealed, from, namely, of Guha, J. was filed. It also appears clear that, if the time taken for obtaining that certified copy be excluded, the present appeal would be quite within time. Admittedly also, if Section 12 of the Limitation Act applies to the case, the appellant would be entitled to the deduction or exclusion of that time in the matter of computation of the period of limitation for his present appeal and the appeal would then be clearly in time. The crucial question therefore, is whether Section 12 would apply.

22. It is true that, under the Rules of this Court (Vide Rule 3. Chapter VIII Appellate Side Rules). the memo, of a Letters Patent appeal need not be accompanied by a copy of the judgment, appealed from, but, even then, for reasons, given by their Lordships of the Judicial Committee in Jiji-bhoy N. Surty v. T. S. Chettyar Firm 55 Ind App 161: (AIR 1928 PC 103) (F) the appellant would be entitled to deduction or exclusion of the time, requisite for obtaining the copy of the judgment, where, at least, such a copy is actually filed, under Section 12 of the Indian Limitation Act Vide Imperial Bucket Co. v. Sm. Bhagwati Basak : AIR1954Cal520 . That is now settled law and it applies even to Letters Patent appeals Vide Mt. Lalit Kuari v. Maha Prasad Narain Singh AIR 1947 Pat 329 (S. B.) (H). There is also no difficulty in applying Section 12 in terms to Letters Patent appeals which are appeals from 'judgments' but judgments under the Letters Patent mean in civil cases decrees and not judgments in the ordinary sense, Vide Sevak Jcran-chod Bhogilal v. Dakore Temple Committee and thus would come under the word 'decree' in Section 12 even if they do not come within the word 'order' there. Section 12, therefore, would apply to the present case and save the present appeal from the bar of limitation.

23. Even otherwise the same conclusion would follow. The Rules of this Court (Vide Rule 2. Chapter VIII, Appellate Side Rules) provide for extension of time in the matter of filing of Letters Patent appeals and the Court has ample power to extend the time on good cause being shown. There can be no question that the present case would come within the scope and benefit of that provision. The appellant could not have been reasonably expected to file the Letters Patent appeal without considering the judgment of Guha, J. and, for that, a certified copy thereof was reasonably necessary and it was actually taken and filed in this case. Even if Section 12 be excluded, this would by itself, furnish a good cause for extension of time for the filing of the present Letters Patent appeal under the above Rule and would protect and preserve the same from being time-barred by sufficiently authorising exclusion or deduction of the period, spent, strictly speaking, for taking the copy, in the matter of computation of the period of limitation. On this view also, limitation would be saved in the present case.

24. In the result then, this appeal succeeds in part as Indicated above. The decree for ejectment. in favour of the plaintiffs respondents as made by the courts below, that is, subject to the payment of compensation as stated above, is maintained, so also the decree for rents, damages and interest with only this variation that the decree for rent is reduced to one for three years.

25. In the circumstances of this case, we would direct the parties to bear their own costs in this Letters Patent Appeal.

Renupada Mukherjee, J.

26. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //