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Sm. Durgesh Nandini Devi Vs. Aolad Shaikh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 801 of 1948
Judge
Reported inAIR1955Cal502
ActsTransfer of Property Act, 1882 - Sections 105 and 106
AppellantSm. Durgesh Nandini Devi
RespondentAolad Shaikh
Appellant AdvocateA.C. Mukherji and ;Chandra Nath Mukerhi, Advs.
Respondent AdvocatePurushottam Chatterji, Adv.
DispositionAppeal dismissed
Cases ReferredRam Kumar Das v. Jagdish Chandra Deb
Excerpt:
- .....chandra deb' : [1952]1scr269 (a), where their lordships held that in the absence of a valid lease a tenancy could be presumed to exist even though the parties might have intended to create a lease for ten years. at page 26 of the report of the case, mukherjea j. says: 'proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for ten years, no operative lease came into existence, the only facts admitted arc that the defendant remained in possession of the land belonging to the plaintiff with the permission of the receiver who represented the plaintiff's estate and paid rent to the latter. from these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in.....
Judgment:

K.C. Das Gupta, J.

1. The subject-matter of this litigation is a small plot of land forming part of the bank of a tank known as 'Dalan Pukur'. Originally, it formed part of a patni, the owner of the patni being one Annada Prosad Saha Choudhury. The patni was sold on 16-5-1936 under Regulation VIII and purchased by Bithaldas Kuthari.

The plaintiff's case is that Bithaldas settled the property with Ahibhusan Ghosh on 20-3-1940 and thereafter the plaintiff purchased this particular land on 15-2-1944 by a registered kobala. It is alleged that he was dispossessed by the defendant on 9-2-1945.

2. The defence is one' of a right of tenancy which it is said has not been determined. The defendant contends that one Hatu Shaikh took permanent settlement of some lands including the land in dispute in April 1934, and that Hatu Shaikh who exercised possession thereafter and regularly paid rent sold half of the land covered by the jama to the present defendant on 26-3-1942.

It is said that some time after that on partition between Hatu Shaikh and the defendant the present plot fell in the defendant's share and the defendant has since then been in possession thereof. The defendant also denied that the plaintiff had acquired any title by purchase.

3. The trial Court 'held that the plaintiff had the title to the land as mentioned and disbelieved the defendant's story of any tenancy right in favour of Hatu Shaikh. It further held that even if there was any such tenancy, Hatu was merely a tenant-at-will and the tenancy determined as soon as Hatu assigned his interest.

It accordingly held that the plaintiff was entitled to a decree for declaration of title and for khas possession and ordered accordingly. In appeal-the learned Subordinate Judge agreed with the trial Court that the plaintiff's title had been proved. Disagreeing with the trial Court as regards the genuineness of certain rent receipts which the defendant had put in evidence in support of his case of tenancy, the learned Subordinate Judge held that they were genuine and from those a tenancy could reasonably be inferred.

As regards the period of the tenancy he held that in law it should be considered to be a tenancy from month to month so that without determination by proper notice to quit the prayer for eviction could not succeed. Accordingly, he allowed the appeal while maintaining the decree in so far as it declared the plaintiff's title to the suit land and rejected the plaintiff's prayer for khas possession and ordered that the 'plaintiff should get possession in the Suit land through defendant as a monthly tenant under the plaintiff in respect of the same. The present appeal is by the plaintiff.

4. The main contention on behalf of the plaintiff is that the learned Court below has erred in law in holding that there was a tenancy and secondly that even if there was a tenancy, it should have held that it was merely a tenancy which the parties intended was determinable at the will of either party and that it had been so determined.

5. Mention may be made of an amalnama which was sought to, be put in evidence but was rightly rejected by both the Courts as it was not registered.

6. On behalf of the respondent, Mr. Chatterji has however asked us to hold that this must be considered to be a lease of immovable property other than a lease from year to year or for a term exceeding one year or reserving a yearly rent and has been made by oral agreement. At first sight, it is difficult to accept the argument, as obviously in fact there was no oral agreement for a leasewhich was not for a term exceeding one year or which did not reserve a yearly rent.

Reliance has however been placed on the Supreme Court decision in -- 'Ram Kumar Das v. Jagdish Chandra Deb' : [1952]1SCR269 (A), where their Lordships held that in the absence of a valid lease a tenancy could be presumed to exist even though the parties might have intended to create a lease for ten years. At page 26 of the report of the case, Mukherjea J. says:

'Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for ten years, no operative lease came into existence, the only facts admitted arc that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff's estate and paid rent to the latter.

From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case.'

We are bound by this authority to hold that in the present case even though there is clear indication that what the parties intended to create was a permanent lease and no operative lease came into existence, on the fact found by the appellate court that the defendant remained in possession of the land belonging to the plaintiff clearly with the per-mission of the plaintiff's predecessor-in-interest and paid rent to them, a tenancy has to be presumed.

7. It is necessary to mention in this connection an argument raised on behalf of the appellant that the finding of the Court below as regards payment of rent should be discarded inasmuch as its: judgment on this was not a 'proper judgment of reversal.' Special stress is laid on the fact that the appellate Court did not take into consideration the criticism by the trial Court of Ex. B(l) that though it purports to show a payment of rent in 1345 B. S. the year 1348 B. S. is mentioned at the top of the document.

It is necessary to remember however that Bon-behari Hazra, who claims to be an officer of Annada Prosad Saha Choudhury and thereafter of Bithaldas, lias given evidence as regards realisation of rent against this rent receipt and has spoken definitely that he issued this receipt, was not asked a single Question about this. It is hardly fair to dis-'believe a witness on a circumstance like this without giving the witness an opportunity to explain it.

One explanation which appears to me hot to be improbable is that having issued receipt 7 from the book before this he had in his mind the figure S when he started writing out this document and just as he put the number 8 in giving the number of the dakhila he also put number 8 after the printed figures '134'. On consideration of the wholematter, I am not prepared to agree that muchweight can be attached to this apparent anomaly in the document.

It is well to remember that the learned Judge has taken into consideration such outstanding facts as the bringing of a suit by Bithaldas for rentagainst the present defendant and has given other reasons for his decision. It is not for us to consider here whether we should accept those reasons as justifying his conclusion. His finding on this question of fact namely whether rents were paid by the present defendant to Bithaldas and Ahibhusan is binding on us.

I do not think that we should he justified in discarding the finding because of what the learned Advocate for the appellant says of its not being 'a proper judgment of reversal'.

8. Once it is found, as in my judgment we are bound to find, on the authority of the SupremeCourt decision mentioned above, that a tenancyshould be presumed in favour of the defendant under Ahibhusan and his predecessors the only question that remains is as regards the duration of the tenancy. On this, the defendant relies on the provisions of Section 106, Transfer of Property Act, under which

'in the absence of a contract or local law or usage to the contrary, a lease of immovable property for residential purpose 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.' Against the argument that the intention of the parties clearly being that the lease should be permanent and not one from month to month there is no scope for operation of S. 106, Transfer of Property Act, that the lease should be deemed to be one from month to month, it is contended however that the words of the statute should be construed very strictly and as soon as there is no valid contract to the contrary, the lease in such a case shall be deemed to be a lease from month to month.

In my judgment, this contention should prevail and that though the intention of the parties was to create a permanent lease, there being no valid contract for the same, the tenancy in this case should be deemed to be from month to month terminable on the part of either lessor or lessse, by fifteen days' notice expiring with the end of a month of the tenancy.

Admittedly, no such notice has been given. My conclusion, therefore, is that the learned Judge is right in rejecting the plaintiff's prayer for eviction of the defendant.

9. A further point was raised on behalf of the respondent by Mr. Chatterji that if a tenancy is found, Section 9(l)(b) of the Bengal Non-agricultural Tenancy Act, puts another obstacle in the way of the plaintiff's success. In view of the conclusion I have already reached as mentioned above, it is not necessary to consider this further submission.

10. I would accordingly dismiss this appeal with costs.

Guha, J.


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