P.N. Mookerjee, J.
1. This is the tenant's Second Appeal arising out of a suit for ejectment. The suit was dismissed by the trial Court on the ground that 'the defendant's tenancy is non-ejectable falling under Section 7(5) of the Non-Agricultural Tenancy Act 20 of 1949'. On appeal that decision was re-versed by the learned Subordinate Judge who held that 'the defendant cannot claim the advantage of Section 7 (5) of the Act.' Hence this Second Appeal by the tenant whose principal contention is that he is protected under Section 9(1)(b)(iii) of the said Act 20 of 1949 (The West Bengal Non-agricultural Tenancy Act, 1949). This contention was also raised before the learned Munsiff but it was rejected by him.
In the judgment of the learned Subordinate Judge there is no reference to this statutory provision and, possibly, this point was not urged before him and the arguments were concentrated on the other section, viz., section 7 (5). As, however, the point (which is ground No. 1 in the Memorandum of Appeal to this Court) arises on facts which are now admitted by both parties, I have allowed the defendant-appellant to raise it in this Court, and, having entertained it, I have also given the plaintiff-respondent full opportunity to meet the same.
2. Shorn of unnecessary details, the undisputed facts, as they stand at present, may be stated as follows :
3. The suit land which measures only one cottah in area is recorded in the Settlement Records as C. S. plot No. 4591 of Mouza Chinsurah. It has been found to be 'non-Agricultural land' within the meaning of West Bengal Act 20 of 1949 and both parties have accepted that position. The defendant's tenancy started under a kabuli-yat, dated 6-1-1929, corresponding to the 23rd Jaistha, 1336 B. S., which was for a period of five years, viz., 133S B. S. to 1340 B. S., i. e., from 1st Baisakh 1336 B. S. to the end of Chaitra, 1340, B. S.
As the kabuliyat was before the amended Section 107, T. P. Acb, it is not hit by the third paragraph of the said section. There was thus a valid lease between the parties for a period of five years expiring with the end of Chaitra 1340 B. S. and, as, admittedly, there was payment and acceptance of rent and continuance of the tenant's possession after the determination of the said lease, there was 'holding over' under Section 116, T. P. Act and the defendant's tenancy was renewed from month to month under Section 106 of the said Act.
The rent was accepted duly upto 1350 B. S. Prom however, 1351 B. S. the plaintiff refused to accept rent and, in August, 1351 B. S. corresponding to the beginning of Baisakh 1356 B. S., he served on the tenant a 15 days' notice to quit purporting to terminate the tenancy with the expiry of the said Bengali month. On 19-9-1949, the present suit was instituted. The defence material for our present purpose is the tenant's claim of protection under Section 9 (1) (b) (iii), West Bengal Non-agricultural Tenancy Act, 1949, there being admittedly no 'six months' notice' 'expiring with the end of a year of the tenancy', as contemplated in the said Clause (iii).
4. The short point which thus arises for consideration is whether the defendant's tenancy by 'holding over' is 'without a lease in writing' within the meaning of the West Bengal Non-agricultural Tenancy Act, 1949. In other words, the question is whetner a tenancy of 'Non-agricultural land' by 'holding over' under Section 116 T. P. Act, arising on the determination of a 'lease in writing' -- the registered kabuliyat for 5 years in the present case -- constitutes holding of 'Non-agricultural land' 'without a lease in writing', as contemplated by the said Act. If the answer be in the affirmative, this appeal must succeed and the plaintiff's suit fail under Section 9 (1) (b) (iii) of the Act as, admittedly, the suit land 'has been held' by the defendant 'for a term of more than one year but less than 12 years' and there has been no 'six months' notice', as prescribed by the said Clause (iii). An answer in the negative to the question posed will at once lead to the dismissal of the appeal and the affirmance of the appellate decree in the plaintiff's favour.
5. In my opinion, the appellant's contention ought to be accepted, The tenancy by 'holding over' is a 'new tenancy in law', although, practically speaking, the terms of this 'new tenancy' may be the same as of the old or the 'determined' or 'expired' tenancy. This is clear from the observations of Mukherjea, J. in the majority judgment delivered by him in the Federal Court case of --'Kai Kushroo Bezonjee Capadia v. Bai Jerbai Hir-jibhoy Warden' -- Vide , It is also supported by the Bench decision of this Court in the case of -- 'Gopal Chandra v. Khater Karikar' : AIR1930Cal262 , where, at p. 263 of-the report, Rankin, C. J., speaking of the defendant's tenancy by 'holding over' after the expiry of the term of his registered patta, observed 'inter alia' as follows:
'It is clear on principle that defendant No. 4 in 1922 was holding under a new agreement and was not holding under the registered patta. The lessor's consent was not given by a registered patta but is to be inferred from the circumstances, -- from the acceptance of rent and from the conduct of the parties. I think, therefore, that there has been after the expiry of the original term a new sub-letting otherwise than by a registered instrument.'
It is true that the case in ' : AIR1930Cal262 ' was one under the Bengal Tenancy Act to which Section 116, T. P. Act was not in terms applicable, but there can be no question that the general principles, underlying the theory of 'holding over' between landlord and tenant, would apply. This was plainly present in the mind of the learned Chief Justice when, referring to the doctrines of 'holding over at Common Law and in England', he expressly recognised that 'those doctrines are not applicable to their whole extent to cases under the Bengal Tenancy Act' and then enunciated and applied in the passage, quoted above, the general principles underlying those doctrines and universally recognised in the law of landlord and tenant.
To my mind, therefore, the appellant's tenancy by 'holding over' was a 'new tenancy', may be on the 'old' terms for all practical purposes, and he is 'holding over' not under the 'expired' kabuliyat or registered lease or 'lease in writing' but really 'in spite of it'. This is also fairly clear from the language of Section 116, T. P. Act itself, which admittedly governs the present case, when it speaks of 'determination of the lease' and then enacts that 'the lease is, in the absence of an agreement to the contrary, 'renewed' ', the idea being the 'renewal' or 'grant anew' or a new or 'renewed' or 'fresh' -- Vide ', grant of the 'expired' or 'determined' lease, the word 'renewed' emphasising the continuance of the old terms subject to the 'agreement to the contrary', as mentioned in the section.
6. There is also another approach to the problem belore us. The West Bengal Non-agricultural Tenancy Act, 1949, is admittedly a remedial statute and so it ought to be liberally construed Vide -- 'Raghuraj Singh v. Harikishan Das' AIR 1944 P C 3o (C) and -- 'Ram Taran Banerjee v. D. J. Hill' , per Mahajan, J., as he then was, and -- 'Amulya Chandra Roy v. Kumar Pashupati Nath Malia', : AIR1951Cal48 (E). Broadly speaking, the 'scheme & intent' of this Act is to give protection to tenants holding 'non-agricultural lands' for more than one year, the extent of the protection varying according as the period is less than twelve years or more. This has to be kept in view in interpreting the provisions of this statute. If tenancies by 'holding over' do not come within the expression 'without a (any) lease in writing', as used in the Act, such tenancies would be altogether outside its protection where the period of 'holding over' plus the period or term of the 'expired' lease would be less than twelve years (vide Ss. 7 and 9). This would be hardly in consonance with the 'scheme and intent' of this statute and an interpretation which will have this effect ought not to be accepted for this remedial enactment.
Thus, even apart from Section 116, T. P. Act or the general law of 'holding over' as between landlord and tenant, a tenancy by 'holding over' would ap-propriately come within the expression 'without a (any) lease in writing', as used in the West Bengal Non-agricultural Tenancy Act, 1949. A lacuna which the statute would otherwise disclose will thus be avoided and, in the absence of compelling circumstances pointing to the contrary, this interpretation ought to be accepted (vide in this connection the Full Bench case of this Court, reported in -- 'Raj Kumari Debi v. Barkatulla Mondal' 39 Cal 278 (F) ).
7. In taking the above view of the statute, I have not overlooked the provisions of Section 7(4) of the Act but, in my opinion, those provisions do not warrant or compel a different construction. It is quite true that Section 7 (4) expressly deals with cases of 'holding over' but that is plainly for the purpose of extending the protection of the Act to a large number of 'non-agricultural tenancies' which, would not otherwise come under Section 7 (2), or, even under Section 9 (1) (b), even if tenancies by 'holding over' are held to be 'without a (any) lease in writing' within the meaning of the Act.
8. To my mind the true position under the Act seems to be as follows: Where the period of the tenancy by 'holding over' is 'more than one year but less than twelve years' even when taken along with the period of the 'expired' 'lease in writing' which preceded it, it will have the lesser protection of Section 9 (1) (b). If the period of the tenancy by 'holding over' is by itself 'not less than twelve years' it will have the greater protection of Section 7 (2). If, however, this period be less than twelve years but it is 'twelve years or more', when taken along with the period of the 'expired' 'lease in writing' in the wake of which it followed, it will still have the higher protection of Section 7, as contained in Section 7(4).
9. I do not find, therefore, anything in Section, 7 (4) to rule out the view that tenancies by 'holding over' would come within the expression 'without a (any) lease in writing' as used in the West Bengal Non-agricultural Tenancy Act, 1949.
10. In the above view of the matter, I accept the appellant's contention that he is entitled to the protection of Section 9 (1) (b) (iii) of the Act of 1949 and that the plaintffs claim for ejectment must fail under the said statutory provision. This appeal, accordingly, succeeds, the judgment and decree of the learned Subordinate Judge are set aside and the decree of the learned Munsif save as regards costs, is restored. The plaintiff's suit stands dismissed and his claims, made in the suits, stand rejected.
11. In the circumstances of this case, I direct that the parties will bear their own costs throughout.
12. Leave under Clause 15, Letters Patent isasked for and it is refused.