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Baidyanath Bhattacharjee Vs. Nirmala Bala Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 464 of 1955
Judge
Reported inAIR1957Cal649,61CWN528
ActsTransfer of Property Act, 1882 - Sections 110, 111 and 116
AppellantBaidyanath Bhattacharjee
RespondentNirmala Bala Devi
Appellant AdvocateApurbadhan Mukherjee, ;Ganga Narayan Chandra and ;Ajit Kumar Bose, Advs.
Respondent AdvocateAtul Chandra Gupta, ;Chandra Narayan Laik and ;Dinesh Chandra Basu, Advs.
DispositionAppeal dismissed
Cases ReferredTirtha Nath v. Iswar Bamalingadeba
Excerpt:
- .....when the tenancy commenced under the written lease, the month of the tenancy was not the usual english calendar month. the written lease, again, was for a term of one year from 7-4-1945. it ended, therefore, with the expiry of 7-4-1946, under section 110, t. p. act, and the defendant's admitted 'tenancy by holding over' commenced on and from 8-4-1946. the month of this tenancy would, ordinarily, even according to the defendant, -- and that, indeed, is the law, -- be from the 8th of a particular month according to the english calendar to the 7th of the next succeeding calendar month, but the defendant alleges a variation in this respect by pleading an agreement to calculate the month of the tenancy according to the usual english calendar months. the agreement in this behalf which is.....
Judgment:

P.N. Mookerjee, J.

1. This is the defendant's appeal against a decree for ejectment. The facts lie within a short compass and the dispute also is confined to twopoints.

2. The subject-matter of the suit is premises No. 7, Prannath Pandit Street. It was purchased by the plaintiff on 3-12-1946, from its then owner Kalidas Mukherjee. The defendant was a tenant under Kalidas. He was in occupation of the disputed premises as such tenant at the date of the plaintiff's purchase. The defendant's tenancy commenced under a registered lease, dated 7-4-1945. It was for a term of one year. The defendant, however, held over under Kalidas on the expiry of his said lease and, when the plaintiff made her purchase, this tenancy of the defendant by holding over was in force. By a notice to quit, served in January 1950, the plaintiff asked the defendant to vacate the premises on the expiry of 7-4-1951, and make over vacant possession to her on and from the 8th and the defendant having defaulted to comply with the said notice, the plaintiff brought the present suit on 9-4-1951.

3. In the plaint the plaintiff, after stating that the defendant's tenancy had been duly determined by the aforesaid notice to quit, went on to allege, inter alia, that she reasonably required the suit promises for her own occupation and so the Rent Control Act of 1950, which was in force when the suit was instituted, would not afford any protection to the defendant and would not bar the plaintiff's suit. No other allegation in the plaint is material for our present purpose.

4. The principal defence was a denial of the validity of the notice to quit and of the plaintiff's case of reasonable requirement.

5. The trial court overruled all the defence and decreed the plaintiif's suit. The lower appellate Court affirmed that decision.

6. The point is whether the decree for ejectment has been rightly made.

7. In support of the appeal two contentions were urged by Mr. Mukherjee. These were the two contentions before the lower appellate Court also and the main defence in the trial Court. The first contention challenged the validity of the notice to quit. The second questioned the genuineness of the plaintiff's plea of reasonable requirement and also its sufficiency under the law when tested on the touchstone of comparative advantage and disadvantage, as required under the Proviso to Section 12 (1) (h) of the Rent Control Act of, 1950.

8. To this second question in both its parts, the answer is short and simple and we shall dispose of it first.

9. It has been proved beyond doubt that the plaintiff with her family of 22 members lives in a rented house at Howrah under a threat of ejectment. When the present suit was pending in the trial court, an ejectment suit was pending against the plaintiff herself at the instance of her landlord in respect of the above rented house at Howrah. That suit, it is admitted, has since been decreed. It has also been proved that the plaintiff purchased the disputed house for purposes of residence. Along with these broad facts, other relevant circumstances have been fully considered by the two Courts below and they have agreed in holding that the plaintiff has amply proved her case of reasonable requirement of the disputed house for the occupation of herself and her family and satisfied the test of comparative advantage and disadvantage.

10. On the materials on record, we have no reason to differ from that concurrent finding. We, accordingly, reject the appellant's submission on this point.

11. The dispute as to the validity of the notice appears to be more fundamental, -- at any rate, more substantial, -- but here also the appellant, in our opinion, cannot succeed.

12. The notice, as we have said above, expired with the expiry of 7-4-1951. The questionis whether it expired with a month of the tenancy.

13. It is necessary then to find out what was the month of the defendant's tenancy at the time of the notice. There is no dispute that, originally, when the tenancy commenced under the written lease, the month of the tenancy was not the usual English calendar month. The written lease, again, was for a term of one year from 7-4-1945. It ended, therefore, with the expiry of 7-4-1946, under Section 110, T. P. Act, and the defendant's admitted 'tenancy by holding over' commenced on and from 8-4-1946. The month of this tenancy would, ordinarily, even according to the defendant, -- and that, indeed, is the law, -- be from the 8th of a particular month according to the English calendar to the 7th of the next succeeding calendar month, but the defendant alleges a variation in this respect by pleading an agreement to calculate the month of the tenancy according to the usual English calendar months. The agreement in this behalf which is pleaded by the defence is stated to have been made verbally some time after the commencement of the registered lease and the plea is that, although it might have been ineffective so long as the registered lease continued, it had full effect since the termination thereof and the beginning of the 'tenancy by holding over.' The sheet anchor of the defence case on this point is payment of rent according to English calendar months. For showing this the defendant has proved rent receipts, Ext, D series, and E, for the period from August 1945 to December 1945 and the plaintiff's solicitor's letter. Ext, B, intimating that the deposit rent of Rs. 1,200/- had been appropriated towards rents for January and February, 1946, and demanding rents for March and April, 1946, and the Money Order coupon, Ext. F, acknowledging receipt of rent for November, 1948. He has proved further certain proceedings for permission to sue in ejectment and standardisation of rent before the Rent Controller, alleging default in payment of rent according to the English calendar months and fixing standard rent with effect from the 1st of an English calendar month and also the proceeding in this very suit under Section. 14 (4) of the Rent Control Act of 1950, wherein also the plaintiff claimed rent according to the English calendar month. The defendant has also relied upon two previous ejectment notices, Exts. B and B-1, which the plaintiff served on him, each expiring with an English calendar month'. The defendant, however, did not examine himself, 'or his previous landlord Kalidas Mookerjee, with whom the alleged agreement was stated to have been made, and the only oral evidence on the point on his behalf appears to be that of his manager, D.W. 3, who deposed to the effect thaC there was an arrangement for payment of rent according to English calendar month, adding thesignificant rider 'for purposes of convenience.' All the above evidence has been fully considered by the two Courts below who have refused to draw any inference of an agreement to change the month of the tenancy to an English calendarmonth on the above materials, furnished by the defence, particularly in the face of the rider, quoted above, from the defence witness D. W. 3 and the judgment, Ext. 6, of this Court on the Original Side in a suit for rent which the plaintiff's vendor Kalidas, who was the owner of the disputed premises at the time, brought, on 20-6-1946, for recovery of rent from the defendant for the period March 1946 to 7-7-1946. The suit was decreed in part for the period March 1946 to 7-6-1946, the claim from 8-6-1946, to 7-7-1946, being dismissed as premature, the rent for that period not having fallen due on 20-6-1946, when the suit was brought. This judgment is of great importance in the present case as it throws a flood of light on the true nature of the defendant's tenancy by holding over and the alleged agreement by which, according to him, the month of the tenancy was made to correspond to the English calendar month. It is perfectly clear from this judgment, Ext. 6, that the plaintiff Kalidas, with whom the alleged agreement is pleaded by the defendant, claimed a decree for rent up to the 7th of an English calendar month, although the tenancy was admittedly continuing. It is very significant that the defendant did not object to that manner of the claim for rent which was consistent only with the month of the tenancy ending on the 7th of an English calendar month and wholly inconsistent with its corresponding with the usual calendar month according to the English calendar. Significantly also the claim was dismissed as premature not in respect of the month of June 1946 and the seven days of July which would have been the case if the month of the tenancy had been the English calendar month, but only for the period from 8-6-1946, to July 7 following, which was explicable only on the footing that the month of the tenancy during the relevant period ran from the 8th of an English calendar month to the 7th of the month following, or at any rate, that it ended with the 7th of an English Calendar month, the suit being decreed up to 7-6-1946. It may be argued that this being the basis of the dismissal of the claim for rent for the period June 8 to July 7, 1946, and the said dismissal, which was undoubtedly a part of the decree of this Court, being supportable only on that basis, a finding that the month of the tenancy ran from 8th to 7th, or, at any rate, that it ended with the 7th, as stated above, was necessarily implied or involved in the decision and the decision could not be maintained without it, so that that finding would be res judicata between the parties on the question of the month of the 'tenancy by holding over' at least up to the date of that suit, and, it being nobody's case that there was any subsequent agreement between the parties, changing the month of the tenancy, that must be taken to be from the 8th (the admitted date of commencement of the 'holding over' tenancy) of a particular English calendar month to the 7th of the month next following, thus ending with 7th of an English Calendar month. As, however, res judicata was not argued before us, we would not rest our decision on the same.

14. Even apart from res judicata, however, the facts, as stated above, sufficiently negative the story of the alleged agreement, pleaded by the defence. The manner in which Kalidas put forward his claim for rent, the conduct and attitude of the defendant, the period of the claim which included a part of the period under the original registered lease, namely from March 1946 to 7-4-1946 and a part of the period of holding over, namely, from 8-4-1946, to 7-7-1946, this constituteing,in all appearances, two months of the 'holding over' tenancy, and the court's judgment, as seC out above, all point unmistakably to the fact that the month of the tenancy, even after the expiry of the registered lease, continued as before, that is, ending with the 7th of an English Calendar month, and there was no change in that respect and that the story of the alleged agreement was a myth. Rents no doubt used to be paid and received under receipts which described them as rents for August, September etc., which are the names of the English calendar months, but, as explained by the learned Subordinate Judge, they may not refer necessarily to the usual calendar months but to the months of the tenancy, commencing from the 8th of the particular English calendar month to the 7th of the month, next following, and, even otherwise, they would not necessarily mean the months of the tenancy but only evidence the mode or manner of payment of rent, agreed upon between the parties for purposes of convenience, as stated by the defendant's manager, D. W. 3, himself.

15. Reference may, in this connection, be made to the decision of this Court in the case of Carrara Marble and Terrazo Co. Ltd. v. Charu Chandra Guha, : AIR1957Cal357 (A), which was cited on behalf of the appellant, but which is really against his contention on this point as it held that the mere fact that rent were paid and received according to English calendar months would not be sufficient to show that the month of the tenancy ran according to the English calendar month and the apparently contrary view of Renupada Mukherjee J., in the case of Tirtha Nath v. Iswar Bamalingadeba, 61 Cal WN 170 (B), if the headnote which runs as follows, namely; 'the manner of payment of rent gives a sure indication about the month of the tenancy,' gives, -- though we do not -think that 'it does, -- a correct statement of (his view, cannot be accepted as correct. The manner or mode of payment of rent may be an important element or factor ro be considered on the point, but it cannot be the sure indication of the month of the tenancy in all cases.

16. We hold, accordingly, that the Courts below were right in holding that the month of the defendant's tenancy was from the 8th of a particular English calendar month to the 7th of the month, next following, and that, accordingly, the notice to quit, expiring with 7-4-1951, was a good and valid notice in law. The appellant's contention under this head must therefore, fail.

17. In the result, both the points, urged in support of the appeal, fail and the appeal is dismissed, subject only to this that, in the circumstances of this case, we give the appellant time till the end of July next to vacate the suit premises.

18. The plaintiff-respondent will get her costs of this appeal from the defendant-appellant.

Sarkar, J.

19. I agree.


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