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Sm. Sailabala Dassee Vs. H.A. Tappassier - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 1191 of 1946
Judge
Reported inAIR1952Cal455
ActsEvidence Act, 1872 - Sections 16 and 114; ;Transfer of Property Act, 1882 - Sections 106, 111, 113 and 116; ;Code of Civil Procedure (CPC) , 1908 - Section 11
AppellantSm. Sailabala Dassee
RespondentH.A. Tappassier
Appellant AdvocateE.R. Meyer and ; S.P. Mitter, Advs.
Respondent AdvocateR.C. Deb and ;A. Basu, Advs.
Excerpt:
- das gupta, j.1. this suit is instituted by the plaintiff sm. sailabala dassee as executrix to the estate of kali pado barick deceased for recovery of possession of the premises 122/3a and 122/4a upper circular road, calcutta, mense profits from the 21st december, 1945, until delivery of possession at rs. 7/- per day and interest and costs.2. i shall have to state the facts of the case in some details. there is not much dispute as to those facts, but the real dispute between the parties is as to the effect of those facts on their legal position. by an agreement dated 23rd september, 1940, the plaintiff let out to the defendant premises no. 122/3a, upper circular road, for 12 months at a rent of rs. 97/-per month. the said agreement inter alia provided that if the rent is paid on the first.....
Judgment:

Das Gupta, J.

1. This suit is instituted by the plaintiff Sm. Sailabala Dassee as executrix to the estate of Kali Pado Barick deceased for recovery of possession of the premises 122/3A and 122/4A Upper Circular Road, Calcutta, mense profits from the 21st December, 1945, until delivery of possession at Rs. 7/- per day and interest and costs.

2. I shall have to state the facts of the case in some details. There is not much dispute as to those facts, but the real dispute between the parties is as to the effect of those facts on their legal position. By an agreement dated 23rd September, 1940, the plaintiff let out to the defendant premises No. 122/3A, Upper Circular Road, for 12 months at a rent of Rs. 97/-per month. The said agreement inter alia provided that if the rent is paid on the first day of each succeeding month then the defendant would be entitled to get a rebate at the rate of Rs. 7/- per month. On the 3lst March, 1942, there was another agreement under which the plaintiff let out to the defendant the premises No. 122/4A, Upper Circular Road, Calcutta, for six months at a monthly rent of Rs. 60/- per month. There was also a clause in the said agreement for grant of rebate at the rate of Rs. 10 per month if the rent was paid on the first day of each succeeding month. Both the said tenancies, under the agreements dated 23rd September 1941 and 31st March 1942, respectively were terminable by either party giving one month's notice. By his letter dated the 26th August, 1942, the defendant informed the plaintiff that both the leases would expire on the 30th September, 1942, and gave him notice that the said tenancies would be maintained at the existing rentals during the war and until after six months after complete cessation of hostilities in the West, the East or anywhere else. The defendant also informed the plaintiff by his said letter that should the plaintiff fail to confirm the above he would apply to the Government department concerned so that a requisition order may be served on the plaintiff to enable the defendant not only in maintaining tenancy of the two premises but for further extension contemplated. The plaintiff through her pleader caused a notice of ejectment dated 31st August, 1942, to be served on the defendant calling upon him to quit and vacate the premises in' question on the expiry of the month of September 1942. There were two such notices, one for each of the said two premises. On the 28th September, 1942, Messrs. Leslie & Hinds acting on behalf of the defendant wrote to the plaintiff informing her that their client, the defendant, had applied to the Government to requisition the above premises and Messrs. Leslie & Hinds on the same date had forwarded to the Assistant Secretary to the Government of Bengal, Revenue Department, Land Asquisition, their client's cheque for Rs. 140/- in payment of rent of the premises for the current month. With reference to the notices of ejectment Messrs. Leslie & Hinds, on behalf of the defendant wrote to the plaintiff on the 7th October, 1942, inter alia stating that they have heard from the Assistant Secretary to the Government of Bengal, that the Government had communicated with the Director of the Ordnance Factories regarding the requisitioning of the above premises under the Defence of India Rules, and further action will be taken by the Government after the receipt of reply from the Director of Ordnance Factories and in the circumstances the notices to quit served on their client are not valid or binding on him. Thereafter Messrs. S. K. Ganguly & Co., solicitors of the plaintiff served two notices both dated 29th October, 1942, on the defendant calling upon him to quit and vacate the two premises No. 122/3A and 122/4A, Upper Circular Road, respectively on the expiry of the last day of the month of November 1942 or the last day of the next month of tenancy. There is some dispute between the parties as to the date when this notice, to quit was actually served on the defendant. The case of the defendant is that one month's notice was not given in terms of the said leases, and that the said notices were not served on 29th October, 1942, but at a later date. The case of the plaintiff is that the said notices to quit were served on the 29th October, 1942, and one month's notice was given to the defendant to quit.

3. On the 2nd November, 1942, Messrs. Leslie & Hinds, solicitors for the defendant wrote a letter to the plaintiff in which it was inter alia contended that the said notice to quit is bad in law inasmuch as their client is not holding over the, above premises on monthly rent but under a lease and their client had exercised the option of continuing and the plea that he is a monthly tenant is not maintainable. By the said letter a sum of Rs. 420/- was sent to Messrs. S. K. Ganguly & Co., solicitors for the plaintiff, as the rents for the months of June, July and August 1942, less, the rebate and the plaintiff's solicitors were requested to give to the defendant credit for the sum of Rs. 140 which was lying in deposit in the defendant's hands, in payment of the month of September and to give a formal receipt in full payment of the total sum of Rs. 560 being rent for June, July, August & September. In the last paragraph of the said letter it was stated that their client had already applied to the Revenue Board, for requisitioning the premises under the Defence of India Rules, and it is expected that the premises would be requisitioned at an early date. The sum of Rs. 420/- sent as aforesaid in full payment of rent for the months of June, July, August and September 1942, were not accepted by- the plaintiff as the same was not in full payment of the plaintiff's dues, there being no question of rebate and was returned back to Messrs. Leslie & Hinds. On the 2nd December, 1942, the plaintiff instituted a suit for recovery of possession of the said premises being suit No. 1566 of 1942. Thereafter on the 28th January, 1943, the plaintiff was served with an order of requisitioning the said premises an and from the 2nd February, 1943. The said order inter alia provided that Sm. Sailabala Dassee executrix to the state of Kali Pado Barick of 194 Vivekananda Road, owner of the said buildings property should place the said buildings etc., property at the disposal and under the control of 1st Land Acquisition Collector, Calcutta, on and from the 2nd February, 1943, at 4-30 P.M. until six months after the termination of the war unless relinquished earlier and should furnish information relating thereto as may be required and the said Sm. Sailabala Dassi should not in any way dispose of the said property as long the order remained in force. The properties requisitioned were 122/3A and 122/4A, Upper Circular Road, being the properties which are the subject-matter of the present' litigation. The defendant's case as made out in his written statement is that he was also. served with a similar notice of requisition. The plaintiff's case is that he was alone served with, such requisition. I ought to state at this point of time that the defendant has not proved before me that any such order of requisition was in fact served on the defendant as well. But it appears that on the 30th January, 1943, the First Land Acquisition Collector, Calcutta, wrote to the defendant as follows:

'The above property has been requisitioned and possession will be taken and formal possession made over to you at 4-30 P.M. on the 2nd February 1943. Arrangements to receive formal possession may be made accordingly.'

Pursuant to the said order of requisition the Government did take possession of the said! premises No. 122/3A and 122/4A, Upper Circular Road. The question as to for whom such possession was taken is a question which is in dispute between the parties before me. Be that as it may, the fact remains that the Land Acquisition Collector did take possession of the said premises and it is also an admitted fact that the defendant thereafter continued in possession of the said premises. But the question which would be material for the decision of this case is in what capacity did he continue in such possession. On the 10th February, 1943, the defendant filed his written statement in the said suit No. 1566 of 1942, and on the next day, that is, on the 11th February 1942, the defendant deposited with the Registrar, Original Side, High Court, the total sum of Rs. 1,062-11-3, The particulars of the said amount as set into Messrs. Leslie and Hinds' letter to the Registrar, High Court, Original Side, are (a) Rs. 1121-4-0 in full satisfaction of the plaintiff's claim for arrears of rent from the 1st June, 1942, to 1st February, 1943, at the rate of Rs. 147/-, per month less R's. 140/- being deposit held by the plaintiff and (b) Rs. 69/- being taxes paid by the plaintiff; making the balance Rs. 1,051-15-3 and (c) Rs. 10-12-0 on account of commission.

4. The Government took possession of the premises in suit & on the 9th March, 1943, the Land Acquisition Collector wrote to the plain tiff informing her that the cheque for Rs. 130 was ready for payment for the rent of the above premises. Thereafter certain correspondence passed between the Land Acquisition Collector & the plaintiff the ultimately (and ultimately?) the rent was settled with the Government at Rs. 160/- inclusive of taxes. The fact of such. an arrangement having been arrived at between the plaintiff and the defendant is not specifically denied by the defendant in his written statement. In paragraph 8 of the said written statement the defendant has only craved leave to refer the said agreement for ascertaining the terms, and effect thereof, and has stated that the defendant was not a party to the said agreement. Pursuant to the said arrangement Government was paying rent and/or compensation at the rate of Rs. 160/- to the plaintiff, but it does not appear that the defendant paid any rent thereafter to the plaintiff. In fact the defendant in his evidence before me admitted that he was given possession of the said premises by the Inspector, Land Acquisition, when he came personally as per notice dated the 30th January 1943. This state of things continued till the 29th November, 1945, when the Land Acquisition Collector gave notice to the parties that the premises were no longer required by the Government and possession would be restored to the defendant on the 8th December .1943 at 2 P.M. On receipt of that letter the plaintiff on the 12th December 1945 wrote to the Land Acquisition Collector that there was no relationship of landlord and tenant, between the plaintiff and defendant, and possession should foe made over 'to the plaintiff. On the 19th December 1945 the Land Acquisition Collector informed the plaintiff that the possession would be restored to the defendant. On 20th December 1945 a letter was written on behalf of the plaintiff by Messrs. T. Banerjee & Co., Solicitors, to the Land Acquisition Collector informing him that their client desired to move the Court against such decision and as the Courts were closing the next day it was not possible for him to do so before the ensuing Christmas vacation and requesting the Land Acquisition Collector to stay his hands till 10th January next.

5. In fact, after the Christmas vacation, an application for mandamus was made to this Court by the plaintiff, but in the meantime on the 21st December 1945 possession had already been given to the defendant by the Land Acquisition Collector. In view of this, the application for mandamus could not be proceeded with and thereafter the present suit has been filed by the plaintiff on the 2nd July, 1946 for the reliefs mentioned.

6. One other fact I should mention. On the 17th February 1944, that is after the property had been requisitioned by the Government and the Government had taken possession of the same and had arranged to pay rent to the plaintiff at the rate of Rs. 160/- per month, Messrs. S. K. Ganguly & Co. wrote to Messrs. Leslie & Hinds stating that as the premises in suit had been requisitioned by the Government, the only question which remained outstanding in the said suit No. 1566 of 1942 was the question of costs and asking Messrs. Leslie & Hinds whether they would agree to the matter being mentioned to the Chamber Judge and placed in the list of short causes for final disposal. In reply to the said letter Messrs. Leslie & Hinds on the 23rd February, 1944, wrote to Messrs. S. K. Ganguly & Co. that they would like to have the bill of Messrs. S, K. Ganguly & Co. and after examining the same they would advise their clients and it may not be necessary to go to trial. Pursuant to that, Messrs. S. K. Ganguly & Co. sent their bill of costs to Messrs. Leslie & Hinds for their examination on 26th February 1944. On the 29th February 1944, Messrs. Leslie & Hinds wrote to Messrs. S. K. Ganguly & Co. that Rs. 230/14/9 was legitimately payable to Messrs. S. K. Ganguly & Co. and if they were prepared to accept Rs. 230/14/9 in full settlement of the plaintiff's claim and costs whatsoever in connection with this suit, they would advise their clients to pay the same. I should have stated that prior to this, on the 16th March 1943, the sum of Rs. 1062/11/3 deposited on behalf of the defendant as aforesaid, was withdrawn by the plaintiff, in part satisfaction of her claim. On the 17th April 1944 Messrs, S. K. Ganguly & Co. wrote to Messrs. Leslie & Hinds confirming that they were willing to accept Rs. 250/- in full settlement of their party and party costs and on the 22nd April 1944 Messrs. Leslie & Hinds sent a cheque for Rs. 250/- in full payment of the plaintiff's costs and informed Messrs. S. K. Ganguly & Co. that the suit may now be struck out. Thereafter the suit was dismissed by con-sent of parties.

7. These are the facts on which the question arises as to what is the legal relationship between the parties. At the trial before me, a number of issues were raised but I ought to state that the question which is now before me will have to be decided on one or other of the two grounds which I shall indicate hereafter. The issues which have been raised at the hearing before me are as follows:

(1) From whom the Land Acquisition Collector took over possession of the premises in suit? (2) Was the notice to quit dated 29th October 1942 served as alleged in the plaint? Was it a valid and sufficient notice to terminate the tenancy of the defendant? (3) Did the defendant pay and the plaintiff accept the sum of Rs. 1301/15/3 as rent upto 1st February, 1943 and for costs of the suit No. 1566 of 1942? If so, was the said notice to quit waived thereby? (4) Did the defendant fail to pay rent to the plaintiff after 1st February, 1943? (5) Were the rights of the defendant determined and/or surrendered and/or extinguished by reason of what is alleged in paragraphs 15 and 16 of the plaint? (6) Is the suit barred by reason of the dismissal of suit No. 1566 of 1942 by consent of parties? (7) Is the suit maintainable in the absence of permission by the Rent Controller to the plaintiff to institute this suit under para 9(b) of the Calcutta House Rent Control Order 1943? (8) Can a decree for ejectment be passed having regard to the special rent laws?

8. At the hearing before me Mr. Meyer placed his client's case on two alternative basis.

1. The plaintiff is entitled to a decree for ejectment on the ground that the possession of the defendant after the premises in question were relinquished by the Government became that of a trespasser. Mr. Meyer put forth his client's case in this way. Although after the determination of the defendant's tenancies by the notices to quit the defendant continued in possession but as a result of the requisition and as a result of what happened thereafter, it can no longer be said that the defendant continued in possession merely as a tenant continuing, in such possession after determination of the tenancy. In other words, the possession of the defendant was not that of a tenant who merely continued in possession after determination of the tenancy by notice to quit but was in a capacity entirely inconsistent with that of a tenant of the plaintiff. What Mr. Meyer contended before me is that in the facts and circumstances of this case there was yielding up of possession by the defendant and what the defendant did was to hold the premises in question as a tenant, not under the plaintiff but under the Government. In the circumstances he contended there was no question, after the order for requisition was made and so long as the premises remained under such requisition, of ejecting the defendant from such possession. It was only after the Government re-delivered possession to the defendant, after the period of requisition was over, that the possession of the defendant became wrongful, and Mr. Meyer contended before me that his client was entitled to get back possession from the defendant because of such wrongful occupation.

2. In alternative, Mr. Meyer contended that there was an implied surrender of the tenancy of the defendant. This alternative contention of Mr. Meyer is on the basis that there was no determination of the tenancy in question by the notice to quit dated 29th October 1942. In other words, this alternative contention of Mr. Meyer proceeds on the assumption that there was an existing tenancy between the plaintiff and the defendant right upto the time when the order for requisition was made and it is on this basis that he wants to put forth this contention.

9. With regard to the first branch of Mr. Meyer's argument Mr. Deb appearing on behalf of the defendant contended as follows: (1) The notice to quit dated the 29th October 1942 was not served within time; in other words, one month's time was not given and therefore the said notice is bad and did not determine the tenancy. (2) Having regard to the dismissal of the suit No. 1566 of 1942 the plaintiff cannot at all put forth the plea, that the notice to quit dated 29th October 1942 has determined the tenancy. (3) In any event, the said notice to quit has been waived by the plaintiff because of the acceptance of the deposit made by the defendant with the Registrar; the said deposit having been made on account of rent and the plaintiff having withdrawn cannot be heard to say that she did so on any account other than that of rent. (4) On the facts and circumstances of this case I should not come to the conclusion that there has been any yielding up of possession by the defendant as a tenant to the plaintiff.

10. With regard to the first of these contentions of Mr. Deb the question as to whether the notice to quit served on the defendant was sufficient i.e. one month's notice was given to defendant, would depend on the date when the said notice was served. The position with regard to this is as follows: In paragraph 5 of the plaint in this suit, the plaintiff stated that by a notice in writing dated 29th October, 1942, given by the plaintiff's solicitor on her behalf, the defendant was called upon to quit and vacate the said premises on the expiry of the last date of the next month of his tenancy. In para 15 of the plaint, the plaintiff submitted that the defendant's tenancy under the plaintiff was terminated by a valid notice to quit and on and from 1st December, 1942 the defendant was a mere trespasser and in wrongful occupation of the said premises. The answer to these allegations in the plaint regarding the notice to quit is contained in paragraphs 4 and 10 of the written statement of the defendant. In para 4 of his written statement, all that the deft, said is that he denies the validity of the alleged notice to quit referred to therein and craves leave to refer to the said notice at the trial. In paragraph 10 of his written statement the defendant denied that the defendant's tenancy was terminated by a valid notice to quit or at all or that the said tenancy was terminated on and from December 2, 1942, or that the defendant was a trespasser or that he was in wrongful possession of the said premises. Thus the defendant in his written statement did not specifically raise the plea of insufficiency of such notice. In other words, there is no indication in the written statement about the plea which is now raised before, (me?) namely, that the notice was short-served or in other words, one month's notice was not given to the defendant to quit. While arguing his client's case Mr. Deb contended before me that the plaintiff did not prove the date of the service of the notice and therefore the plaintiff has failed to prove that sufficient notice was given. In view of the fact that the plea of insufficiency of notice was not specifically raised in the written statement I held that Mr. Deb should not be permitted to put forth such a contention and it I do allow him to do so, I would allow the plaintiff, in the interest of justice, to give evidence as to the date of the service of the notice. I held that the plaintiff was really taken unawares by this plea as to which there was no indication in the written statement. However, in the end, both the plaint and the written statement were allowed to be amended and both the parties were allowed to give evidence as to the date of the service of the notice. In para 5 of the plaint an addition was made to the effect that the said notice was duly served on the defendant on the said day, and to the statements contained in para 4 of the written statement it was added that the defendant does not admit the other allegations contained in the paragraph. On this basis evidence was led on behalf of the plaintiff and also on behalf of the defendant as to the date of the service of the notice to quit.

11. (After reviewing the evidence his Lordship continued). It would be sufficient for me to say that I place no reliance whatsoever on the evidence of the defendant. I am satisfied on the state of evidence before me that the notice in question was served either on the 29th October 1942 or at least on the 30th October, 1942 and one month's notice was given to the defendant. Mr. Deb contended before me that the only evidence on this point is that of the peon and as the peon could not have any recollection of the matter I would not be justified from his1 evidence alone to hold that the notice was served on the 29th October 1942. Apart from the evidence of the peon the entry in the peon book of the firm of Messrs. S. K. Ganguly & Co. of the relevant time has been proved before he. The letter was despatched according to that entry on the 29th November 1942. It is true that no date has been put under the signature on the receipt column but the peon has stated in his evidence about the invariable practice which he used to follow in the office. Mr. Meyer drew my attention to Sections 16 and 114 of the Indian Evidence Act. Under Section 16 when there is a question as to whether a particular act was done the existence of any course of business according to which it naturally would have been done is a relevant fact. Under Section 114 of the Indian Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of this particular case. As I indicated before it is in evidence that the invariable practice, followed by the peon was to despatch a letter either on that day oh which he received it or the next day or else to return it to the office. Having regard to such evidence and the entry in the peon book I would be justified in holding that the letter in question was served on the 29th November 1942 or at least on the 30th November 1942. The thing happened a long time ago and the plaintiff has given the best evidence which was possible for her to give in the matter. On the other hand the defendant did not in any of the correspondence which passed between the parties and their solicitor assert that the notice has been short-served. No such plea was taken in the original written statement. The attitude taken by the defendant in his evidence is evasive, if not, obstructive. The person who signed the peon book acknowledging receipt of this letter might have been called to prove the date when the letter in question was actually received by him. Mr. Meyer has contended and I agree with his contention that the defendant could have produced the day book of Messrs. Leslie & Hinds to show when he went to his solicitor's office to give them instructions over the matter. I hold that the notice to quit served on the defendant was a sufficient notice and had been served in time. Even if I had come to the conclusion that the notice to quit was not served earlier than the 2nd November 1942 being the day on which Messrs. Leslie & Hinds on behalf of the defendant replied to the said notice, even then the question would remain whether in law the said notice is sufficient. Mr. Meyer contended before me that if a tenant holds over after the expiry of a lease and if such holding over is from month to month then 15 days notice is sufficient to terminate such tenancy. Mr. Meyer in support of his contention has relied on two decisions of this Court. The first decision on which he relied is the one reported in 'DASRATHI KUMAR v. SARAT CHANDRA', : AIR1934Cal135 and the other reported in TROILOKYA NATH v. SARAT CHANDRA', 32 Cal 123. The first of these two cases was decided by a Division Bench of this Court. The suit in that case was also for ejectment. The defendant in that case was holding under two leases in respect of two different plots. The leases were for a term of nine years and expired on the 16th September, 1922. The defendant held over after the expiry of the lease. The plaintiff obtained an intermediate lease from the landlord and issued notice to quit on the defendant. The defendant raised amongst others the question of the sufficiency of the notice to quit. The trial Court held that the notice was insufficient but proceeded on the footing that on the terms of the original lease there was no necessity of giving any notice. The trial Court proceeded on the view that the terms of the original lease would also be the terms under which the plaintiff held over the premises after the expiry of the said lease & as the original lease contained a clause that the defendant would vacate without service of any notice Jo quit, that clause must be imported into the new contract of tenancy created by the landlord's acceptance of rent after the expiry of the terms mentioned in the original lease. The District Judge did not Accept this view and this contention was also negatived by their Lordships and their Lordships held that the words 'in the absence of an agreement to the contrary' used in Section 116, Transfer of Property Act must refer to an agreement as to the terms of holding over. Their Lordships relied on the decision of Sir Francis Maclean in the case of 'TROILOKYA NATH v. SARAT CHANDRA', 32 Cal 123 and held as follows:

'In our opinion as soon as the rent was accepted it was a new contract and that it was a contract of tenancy from year to year or from month to month according to the purpose for which the tenancy was taken. That being so, we are of opinion that the District Judge took a correct view of this case.'

12. In the case of 'TROILOKYA NATH v. SARAT CHANDRA', 32 Cal 123, decided by a Bench of three Judges of this Court, the plaintiff was the lessee of certain immovable properties for the term of three years. The property leased was not leased for agricultural or for manufacturing purposes. After the termination of the lease the plaintiff held over. Thereafter the plaintiffs sued the sub-tenants. The defence of the sub-tenants was that at the date of the suit the plaintiff's interest in the property had determined. That depended upon whether or not the notice given by the superior landlord to the plaintiff was a sufficient notice to terminate the tenancy which again depended upon the terms upon which the property was held over by the plaintiff. In delivering judgment in that case Chief Justice Maclean observed as follows:

'We have to consider what the law in India is. That law has been codified and is to be found in Section 116 of the Transfer of Property Act. What does the language of that section mean? It does not appear to me to present any serious difficulty in construction. The material words are: 'If a lessee remains in possession thereof after the determination of the lease............and the lessor ............ accepts rent from the lessee'-which was the case here, - 'the lease is in the absence of an agreement to the contrary'-which must mean an agreement as to the terms of the holding over - 'renewed from year to year or from month to month according to the purpose for which the property is leased, as specified in Section 106'. That takes us back to Section 106. I have already pointed out that the property here was not leased for agricultural or manufacturing purposes and therefore it was a lease of immovable property for a purpose other than agricultural or manufacturing purposes and under Section 106 it must be deemed to be a lease from month to month terminable on the part of either lessor or lessee by 15 days' notice expiring with the end of the month of tenancy.'

The result of these decisions is that if after the expiry of a lease of immovable property the tenant holds over and there is no agreement as to the terms of the holding over, then under Section 106 it must be deemed to be a lease from year to year terminable by six months1 notice or a lease from month to month terminable by 15 days' notice according to the purpose for which the property was leased. In the present case, the leases in question were not for agricultural or manufacturing purposes. Therefore under Section 116 read with Section 106, T. P. Act the leases are renewed from month to month terminable by 15 days' notice expiring with the end of the month of the tenancy. Apart from these decisions, which are binding upon me on the plain meaning of Section 106 and Section 116 of the Transfer of Property Act, the position seems to me to be quite clear. Unless there is any agreement to the contrary as to the terms of the holding over, the lease would be renewed from year to year terminable by six months notice or from month to month terminable by 15 days' notice according to the purpose for which the property was leased. Mr. Deb contended before me that the only portion of Section 106 which would be attracted in a case there is holding over and there is no agreement as to the terms of the said holding over is the period mentioned in that section i.e. a year or a month. Mr. Deb contended that the words 'as specified in Section 106' in Section 116 goes with the words 'purpose for which the property is leased.' In other Words, Mr. Deb contended that in such a case the only result would be that the lease would be renewed either from year to year or from month to month according to the purpose for which the property is leased, as mentioned in Section 106 but such leases are to be determined in the manner provided for in the original lease. In other words, entirety of Section 106 is not attracted but only that portion of it which states that the lease will be renewed either from year to year or month to month. This view runs contrary to the views expressed by their Lordships of this Court in the decisions to which I have referred and I am also, unable to accept the same. In my opinion, if there is no agreement to the contrary as to the terms of the holding over, then the whole of Section 106 would be attracted, that is to say, the new lease would be a lease either from year to year or from month to month, terminable either by six months' notice or 15 days' notice according to the purpose for which the property was leased. I therefore hold, that in any view of the matter, the notice served on the defendant must be held to be a sufficient notice.

13. The next contention of Mr. Deb is that in view of the dismissal of suit No. 1566 of 1942 which was also filed on the same cause of action, that is, determination of the tenancies by the said notices to quit, the plaintiff is wholly debarred from relying on the said notices to quit as determining the said tenancies. Mr. Meyer on the other hand submitted before me that the cause of action on which this branch of the plaintiff's case rests is not the determination of the tenancy by service of the notices to quit but obtaining possession by the defendant from the Government after the period of requisition was over and continuing in such possession. The notice to quit dated 29th October 1942 according to him has no doubt been pleaded by his client but it has been pleaded only as a historical fact merely and to destroy any defence that the tenant might set up. As I have already stated, this branch of the plaintiff's case rests on the fact that the defendant yielded up possession as a tenant of the plaintiff and held the premises in an entirely new and inconsistent capacity, that is to say, under the Government and no longer under the plaintiff. Thus the real cause of action so far as this branch of the plaintiff's case is concerned is the wrongful occupation of the premises after the period of requisition. If I come to the conclusion that as a result of the requisition and what happened thereafter, the possession of the defendant was no longer that of a tenant but was in a capacity inconsistent therewith that is to say,' under the Government, then in my opinion the plaintiff would succeed. Thus the real point in this case, as I shall indicate hereafter, is whether as a result of the requisition order and the events which happened at or about that time, the legal relationship between the parties had changed and if so, then the plaintiff would succeed. If not, the plaintiff would fail. On this view of the matter, I am unable to accept Mr. Deb's contention.

14. There is another reason which has induced me to hold against Mr. Deb's contention on this point. In the said suit No. 1566 Of 1942, in answer to the averments made in the plaint, namely, that by a notice in writing dated 29th October, 1942, given by the plaintiff's solicitor, the defendant was called upon to quit and vacate both the said premises on the expiry of the last day of the month of November 1942 and in spite of such notice the defendant is still in wrongful possession of the said premises, the defendant in his written statement has practically said nothing. I cannot find any allegation in the written statement filed in the said suit that the said notice was invalid or did not in fact bring about the determination of the tenancy. All that the defendant has stated in his said written statement is that the defendant had applied to the proper authorities for requisitioning the premises and tendered rent regularly to such authorities. He has also stated that the Government had taken formal possession of the premises and made over the same to the defendant on the 2nd February 1943 and the defendant has tendered rent to the plaintiff at the full rate up to the 1st of February 1943, that is to say, including one day in the month of February 1943 which was prior to the date of requisition in question of.............Thus the validity of the notice to quit does not appear to have been in dispute in the said suit. The pleadings do not show that the validity of the said notice to quit was one of the issues or a point in dispute in the said suit. That being so, in my opinion, I cannot accept Mr. Deb's contention that the dismissal of the said suit which was by consent of the parties, operates as a bar to the plaintiff's asserting in this case that the tenancy had been determined by the notice to quit dated 29th October, 1942.

15. Mr. Deb then contended before me that in any event the notice to quit has been waived by the plaintiff because of his acceptance of rent up to 1st February 1943. As I have already said, the defendant on the 11th February 1943, that is, soon after his filing the written statement in the said suit, deposited rent with the Registrar up to and including 1st of February 1943. On the 16th March 1943 the plaintiff had withdrawn the said amount in part satisfaction of her claim in the said suit. Mr. Deb contended before me that as a result of such withdrawal there has been a waiver of the notice to quit. Mr. Deb's contention before me was as follows: The defendant had in the letter addressed to the Registrar on the 11th February 1943 clearly indicated that he was depositing the amounts by way of rent up to 1st February 1943. If thereafter the plaintiff had withdrawn the said amount, then it must be held that the plaintiff took the said amount on account of rent. He relied on the well-known principle of law that the payee must appropriate an amount paid by the payer to the account to which the payer makes the payment. He also relied on the decision of the Federal Court in 'KAI KHUSHROO v. BAI JERBAI', In that case the dispute was between the landlord and the sub-tenants. The sub-tenants after the expiry of the lease granted in favour of their landlord wanted to continue in possession and they sent to the plaintiff three cheques as rent. These cheques were received by the plaintiff without any protest and they were put in his banking account on the 23rd November 1942., It was thereupon contended on behalf of the sub-tenants that the payments having been made on account of rent and the plaintiff having accepted the said payments, he cannot deny that there was a tenancy created between the plaintiff and the sub-tenants. It was held that a new tenancy was created between the plaintiff and the sub-tenants. Mr. Justice Mukherjee in delivering judgment observed as follows:

'In the second place it seems to me that when money was paid as rent, it did not lie in the mouth of the plaintiff to say that he would receive the money but not as rent. It is a settled principle of law that when money is paid by a debtor with an express intimation that it is to be applied to the discharge of a particular debt, the creditor may not accept the money at all; but if he received and appropriated it, he cannot be allowed to say that he took it wrongfully on some other account. The ordinary legal consequence of accepting payment as indicated by the debtor would follow in such cases, however much the creditor might attempt to repudiate them. This being the position it must be held on the facts of this case that money was not only paid as rent by defendants 2 and 3 but was received as rent by the plaintiff and consequently a monthly tenancy under the provision of Section 116 of the Transfer of Property Act did come into existence.'

16. Mr. Deb strongly relied on these observations of Mr. Justice Mukherjee. Mr. Meyer on behalf of his client did not dispute the proposition laid down in that case but what he contended is that the acceptance of rents in every case does not amount to waiver of notice. In other words, Mr. Meyer did not dispute that if a payment is made on account of rent and the landlord takes that payment, he must be held to have taken that payment on account of rent but his contentions are firstly, that on the facts and circumstances of this case I should hold that the payment was not made on account of rent, and secondly, the acceptance of rent in every case does not amount to waiver of a notice to quit. The section of the Transfer of Property Act which deals with the question of waiver of a notice to quit is Section 113 which provides as follows:

'A notice given under Section 111, Clause (h) is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting.'

Thus one of the elements necessary to constitute waiver of notice to quit is an intention on the part of the person giving such notice, that is, the landlord, to treat the lease as subsisting. An act on the part of such a person in order to amount to an waiver of a notice to quit must be an act which would show such an intention. This is quite clear from the wording of the section itself. This question came up for consideration before their Lordships of the Bombay High Court in the case of 'NAVNIT LAL CHUNILAL v. BABURAO', AIR (32) 1945 Bom 132, Kanja, J. as he then was in the course of his judgment observed as follows:

'The argument of the appellant is that because the landlord accepted the amount sent as rent, although while accepting the same, he stated that he was receiving it on account of compensation for use and occupation, he must in law be deemed to have accepted it as rent and therefore there was a waiver of the notice to quit. In my opinion this line of argument is faulty because it attempts to split the provision of Section 113 in two parts. It is an attempt to read in Section 113 the words 'by acceptance of rent' as an act resulting absolutely in the waiver of the notice irrespective of the question whether there was an intention to treat the lease as subsisting or not. It is true that under illustration (a) if an amount is sent as rent and 'is received as rent' there will be a waiver of notice to quit, but the section does not provide that if the amount is sent as rent, but is received by the landlord and 'accepted by him not as rent, but as compensation for the use and occupation that is a receipt of rent. In each case according to the wording of Section 113 it is for the Court to determine whether the act in question (whether it is a receipt of the amount sent as rent or is the receipt of the amount without any statement at all) discloses an intention to treat the lease as subsisting. If the answer to the question is in the affirmative, then if there is a consent, express or implied, of the tenant, there is a waiver of the notice to quit.'

I very respectfully agree with the views expressed by their Lordships in that case. The question really is one of intention of the parties. Section 113 clearly indicates that there should be an intention not only on the part of the lessor but also on the part of the lessee. In order to determine the question of waiver of a notice to quit one of the questions to be decided in each case is whether from the conduct of the landlord, by acceptance of rent or otherwise, an intention to treat the lease as subsistsing can be inferred and ;that would depend upon the facts and circumstances of each case. From this point of view I have to decide the effect of the withdrawal of the deposit by the plaintiff. Does it show an intention on the part of the plaintiff to treat the lease as subsisting. The. intention of the tenant in making the deposit has also to be considered. Was it the intention to continue as a tenant under the plaintiff? If I find that the intention of the tenant and of the landlord were the same, namely, to treat the lease as subsisting, and their conduct evidences it, then I should hold that there has been a waiver of the notice to quit. As for the conduct of the defendant, it appears from the letter written to the Registrar by Messrs. Leslie & Hinds on behalf of the defendant that the sum paid was in full satisfaction of the plaintiff's claim for arrears of rent from 1st June 1942 to 1st February, 1943, at the rate of Rs. 140/- a month. The plaintiff's claim in the said suit was for arrears of rent for the months of June, July, August, September, October and November 1942 amounting to Rs. 942/- and for mesne profits from the 1st December 1942 until possession is delivered. The payment, although stated to be made on account of rent, is nonetheless made in full satisfaction of the plaintiffs' claim. Therefore, it is not clear whether such payment was made only as rent up to the 1st February 1943, or was made on account of the plaintiffs' claim, although it was stated, as Mr. Meyer contended, rather loosely on account of arrears of rent. Thus from the averments contained in the said letter dated the 11th February, 1943, written by Messrs. Leslie & Hinds to the Registrar it is not clear that the payment was made purely on account of rent. It is also to be noticed that the amount deposited included rent for the 1st of February 1943 as well, that is, one day in the month of February 1943 prior to the date of requisition in question. That fact seems to me very significant and precludes any suggestion that the deposit was made on account of rent pure and simple and with the intention of treating the lease as subsisting. If the intention of the defendant was to deposit the said amount only for arrears of rent then I see no reason why a deposit of rent for one day on the month of February should also be made. I cannot, therefore, hold that the conduct of the defendant in making the deposit shows an intention to treat the lease as subsisting. It also appears from the said letter that the defendant was appropriating towards the rent payable by him the sum of Rs. 140/- which was kept in deposit with his landlord, the plaintiff. If the intention was to pay up all arrears of rent and to continue as tenant, as contended by Mr. Deb, on behalf of the defendant, then I see no reason why the defendant would deduct from the amount payable by him on account of rent the amount of Rs. 140/- which had been kept with the plaintiff by way of deposit. The appropriation of this amount at this stage indicates to my mind that the payment was not made on account of rent or with the intention of continuing the tenancy under the plaintiff. The conduct of the plaintiff in withdrawing the said amount does not also show that he was intending either to create a new tenancy or to continue the old one. The amount deposited was withdrawn on behalf of the plaintiff in part satisfaction of her claim. The plaintiff had all along been contending that the defendant was no longer her tenant. The correspondence which passed between the two solicitors for the parties also suggest that the parties were proceeding on the footing that the relationship between the plaintiff and the defendant as landlord and tenant had already come to an end and there was no point in proceeding with the suit any longer. In the premises I have come to the conclusion that there was' no waiver of the notice to quit and the contention of Mr. Deb on this point must also fail.

17. I now come to the main question in this case namely what is the effect of the requisition and the conduct of the defendant at or about the date of requisition on the legal relationship between the parties? Does it amount to giving up possession by the defendant as tenant to the plaintiff? That is the real point in this case. If it does, then the plaintiff succeeds. If it does not, then the plaintiff must fail in any view of the matter. This question has to be considered from two points of view (1) on the basis that the notice to quit dated the 29th October 1942, had terminated the defendant's tenancy (2) in the alternative, on the basis that the said notice did not determine the tenancy. On the first basis it becomes a question as to whether the conduct of the defendant amounts to an yielding up of possession by the defendant to the plaintiff. On the alternative basis, it becomes a question as to whether such conduct amounted to an implied surrender. I have already said that in my opinion the notice to quit dated the 29th October 1942 is an effective notice and it determinated the defendant's tenancy. That being so, the only other question which arises for my decision is whether the conduct of the defendant at or about the time of the requisition amounted to yielding up of possession by the defendant to the plaintiff. Mr. Meyer in the course of his argument, made his position quite clear and conceded that if I come to the conclusion that although there was valid notice to quit the yielding up of possession of surrender by the defendant did not take place then his client has no case. Therefore, I have to determine whether the conduct of the defendant amounts to an yielding up of possession. In order to determine this question I shall have to recite certain events which happened at or about the time of the said requisition. From the facts of this case it appears that the plaintiff was served with an order of requisition by the Land Acquisition Collector. Although the defendant's case in the written statement is that he was also served with the requisition order, but this has not been proved before me, The only notice or order of requisition which is before me is the one which was served on the plaintiff. By that notice the plaintiff was asked to place the said premises at the disposal of and under the control of the First Land Acquisition Collector, Calcutta, on and from 2nd February 1943 at 4-30 p.m. until six months after the termination of the present war unless relinquished earlier. Although no such order of requisition was served on the defendant the defendant was on the 30th January 1943 written to by the First Land Acquisition Collector. That letter seems of me to be very significant. By that letter the defendant was informed that the property had been requisitioned and possession would be taken up and formal possession made over to him at 4-30 p.m. on 2nd February 1943, and he was asked to make arrangements to receive formal possession. These two letters indicate that the Government was going to take possession from the plaintiff and make over possession to the defendant. Although it may be that at the time of taking such possession on the 2nd February 1943 nobody on behalf of the plaintiff was present at the premises, but that in my opinion dees not alter the position. The Government had directed the plaintiff to place the premises at the disposal of the Government. Even the defendant in his evidence before me does not say that the Inspector who came to the premises took possession of the same from him. All that he said' was that the Inspector came, inspected the premises and said 'Stay on' and left. Towards the end of his examination-in-ehief the defendant definitely stated that he was given possession by the Inspector. What happened was that the Government took possession from the plaintiff and gave possession to the defendant. This is also borne out by the events which took place since 2nd February 1943. Correspondence passed between the plaintiff and the Land Acquisition Collector as to the amount of rent to be paid by the Government to the plaintiff for the said premises. Ultimately the rent payable by the Government to the plaintiff was settled at Rs. 160/- inclusive of taxes. This was a different amount from what the defendant used, to pay to the plaintiff. This rent was paid all along by Government to the plaintiff. The defendant never paid any rent to the plaintiff. It does not appear that the defendant ever claimed that rent or compensation payable by the Government should be paid to him. On the other hand in paragraph 5 of the written statement filed by the defendant in suit No. 1566 of 1942, it is stated that the defendant had applied to the Government for requisition of the premises in question and pending the same 'tendered the said rent regularly to such authorities' and the defendant instructed the plaintiff to realise the rent for the month of September from the deposit money lying with the plaintiff. In the subsequent paragraphs of the said written statement it is also stated that the Government had requisitioned the said premises and taken formal possession thereof and made the same over to the defendant on the 2nd February 1943., The matter does not rest here. Soon after the date of the requisition, that is on the 2nd February 1943 the defendant deposited all rents up to and including the 1st February 1943 with the Registrar of this Court. This conduct on the part of the defendant shows the attitude of the defendant towards the matter. It shows clearly that the defendant was not going to have any further relationship with the plaintiff. The amount deposited included rent for 1st February 1943 as well being the one day in the month of February 1943 before the date of requisition which was on 2nd February, 1943. The defendant also deducted from the rent payable Rs. 140/- being the amount held in deposit with the plaintiff. Thus the conduct of the defendant, to my mind, indicates clearly that since the date of the requisition he was not going to have anything to do with plainiff or to hold the said premises under the plaintiff. In other words he put an end to the relationship of a landlord and tenant between the plaintiff and himself by relinquishing his character as tenant of the plaintiff and continued to hold the premises under the Government. Mr. Deb in the course of his arguments, if I have understood him rightly, conceded that if the Government took possession from the plaintiff and if the, defendant accepted that position and thereafter remained in possession under the Government then he ceased to be a statutory tenant because then he would be held to have given up possession. In my opinion that is exactly what had happened in this case. In the first place possession was taken from the plaintiff by the Government and the Government paid rent throughout the period of requisition to the plaintiff. In the second place he must be held to have accepted that position because he never objected to the rent being paid by the Government to the plaintiff. In the third place the defendant since the date of the requisition remained in possession under the Government having got such possession from the Government. The defendant wanted to square up all accounts with the plaintiff by making deposit of rent up to and including 1st February, 1943. The amount held in deposit was also appropriated towards the rent. Since the date of requisition and' during the period of requisition, the defendant did not pay any rent to the plaintiff. In my opinion, the combined effect of all these is that the defendant must be held to have yielded up his possession as tenant of the plaintiff and held the premises in an entirely different character, and in a capacity inconsistent with that of a tenant under the plaintiff. In my opinion, the defendant's position was not that of a tenant who merely continued in possession even after the determination of the tenancy by notice to quit. His possession became wrongful only after the Government delivered the possession of the said premises to the defendant after the period of requisition was over and the present suit is for the recovery of such possession, and in my opinion, he is entitled to recover such possession from the defendant.

18. Having come to the conclusion that the tenancy of the defendant was determined by the notice to quit and thereafter there was yielding up of possession of the premises in question by the defendant as tenant of the plaintiff, and the defendant held that premises in an entirely different character, the alternative case of the plaintiff does not arise for my consideration. But as the point has been argued before me at great length by learned counsel for the respective parties, I shall shortly indicate my views thereon. I should state at the very outset that the same facts on which I have come to the conclusion that there was yielding up of possession by the defendant to the plaintiff would also induce me to hold, if I had to consider the question of surrender of the tenancy by the defendant to the plaintiff, that there was an implied surrender of the tenancy in question. One of the arguments of Mr. Deb against the contention of the plaintiff namely that there was an implied surrender of the tenancy in question, was that the doctrine or surrender rests on the agreement between the parties and here must be an intention on both sides to. create a surrender, and surrender also implied a valid and subsisting tenancy between the parties at the date of the surrender. If then, Mr. Deb contended, the plaintiff was asserting all along that after the service of the notice to quit dated 29th October 1942, the defendant was no longer his tenant, then there cannot be any surrender either express or implied because in that case, there can be no intention on the part of the plaintiff to obtain a surrender of the tenancy of the defendant. There is no doubt some force in Mr. Deb's contention. But it must be remembered that the alternative case of the plaintiff before me is not on the basis of express surrender but on the basis of implied surrender.

19. Implied surrender, or surrender by operation of law as observed by Sir Dinshaw Mulla, in his book on Transfer of Property Act, occurs (1) by creation of new relationship, or (2) by relinquishment of possession. Sir Dinshaw Mulla further observed as follows:

'If the lessee accepts a new lease, that by itself is a surrender of the old lease, for the new lease could not be granted unless the old one was surrendered. Such surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessor. This has been put on the ground of estoppels and surrender by operation of law has been said to be an act done by or to the owner of a particular estate, the validity of which he is estopped from disputing and which could not have been if the particular stage continued to exist and as the surrender is found upon estoppels, the intention of he parties is immaterial.'

Thus, an implied surrender or surrender by operation of law, does not depend on the intention of the parties. It has to be implied from the conduct of the parties or such facts as relinquishment of possession by the lessee and taking over possession by the lessor. In this particular case, as I indicated before, the very facts on which I have come to the conclusion that the defendant had yielded up his possession as a tenant to the plaintiff and was staying in the premises in an entirely different character, would also, if I have to consider the question of surrender, support a case of implied surrender. The facts and circumstances, which I have already indicated before, implied that there was a surrender by operation of law. That being so, I am unable to accept the said contention of Mr. Deb on this point and I have come to the conclusion that if had to consider the question of surrender in this case, I would have from the facts and circumstances of this case and from the conduct of the parties held that there had been an implied surrender of the tenancy by the defendant. I need not say anything- more on this point because on the view which I have taken as to the first part of Mr. Meyer's contention, the question of surrender of the tenancy does not at all arise for my consideration.

20. Mr. Meyer in support of his contention that the defendant in the facts and circumstances of this case must be held to have yielded, up possession to the plaintiff relied on certain decisions of the English Court. He contended that these decisions show clearly that continuance in actual and physical occupation is irrelevant. What is relevant is change in legal relationship of the parties and even if a tenant continues in physical possession of the premises in question of which he had at one time been a tenant, nonetheless, if such continuance is inconsistent with his character as a tenant, it would amount to an yielding up of the possession by the tenant to the landlord.

21. The first decision on which Mr. Meyer relied is the one reported in 'METCALFE v. BOYCE',(1927) 1 K. B. 758. The defendant in that case Who was a county police constable became the tenant of a house. In 1912'the county police authority, which had till then made a grant in aid of the rent of houses occupied by police constables, decided that for the future the chief constable should be tenant of those houses, that the constables should occupy them as servants, that the chief constable should pay all rent, rates, and taxes, and that a deduction should be made in respect thereof from the men's pay. The defendant knew of, and made no demur to, this arrangement, but no express notice to determine his tenancy was given. From 1912 onwards the demands for rent were sent to the defendant, addressed to the county authority. This the defendant took to the police office, received the full amount due, and paid it at the estate office of the landlord, being given a receipt acknowledging payment by the county authority, which receipt he sent to the county treasurer. This course of business continued for fourteen years, the defendant continuing to occupy the house and his name remaining on the estate books as tenant. There was no written surrender or assignment of the tenancy. In a claim for possession by the county police authority against the defendant, the defendant refused to give up the house and the plaintiff who was the chief constable of Somerset brought this suit for recovery of possession. The plaintiff's case, was that the tenancy had been surrendered or assigned by operation of law in 1912 and the defendant's case was that the tenancy which had been existing in 1912 had not been surrendered or assigned. While considering the legal position of the parties in that cases, Salter J. observed as follows:

'The grant of a new tenancy by the landlord to the plaintiff, with the assent of the defendant, operated as a surrender of the defendant's tenancy, if the defendant gave up possession to the plaintiff at or about the time of the grant of the new tenancy. In my opinion, the defendant, while remaining in occupation of the house, did give up possession, of it to the plaintiff in April .1912, and the plaintiff took possession and remained in possession of his servant.'

22. This case, in my mind, supports the contention of Mr. Meyer, namely, that mere physical possession by the defendant would not matter. The question is one of legal relationship between the parties and if there has been a change in such relationship, and if the defendant continued in possession, not as a tenant of the plaintiff but as a tenant under the Government, then, in my opinion,, there has been giving up of the possession of the defendant to the plaintiff.

23. The next decision cited by Mr. Meyer in support of his contention is one reported in 'FOSTER v. ROBINSON', (1951) 1 K. B. 149. What happened in this case was that shortly after the end of the first world war the plaintiff took over the management of a farm and let a cottage nearby to a man who worked on the farm at a rent of 3.5s. a half-year. Later the plaintiff let the farm but the tenant of the cottage continued to work on the farm till 1946 when he became unfit to do so . by reason of age and infirmity. The plaintiff then told him that the existing tenancy would cease but that he could live at the cottage rent free till he died. The tenant accepted that offer and lived in the cottage without paying rent till he died, and after his death the defendant, his daughter, had lived in the cottage for nine years, and claimed to remain on at the cottage paying the old rent. The plaintiff, thereupon, instituted a suit for possession of the premises. The question arose whether the plaintiff was entitled to possession on the ground that the original tenancy had as a result of the arrangement in 1946 been surrendered by the operation of law and whether the Rent Restriction Acts applied to the case. Their Lordships held that the plaintiff was entitled to possession on the ground that the original tenancy had been surrendered by the operation of law and that this was so, although the tenancy was one to which the Rent Restriction Acts, had applied. In delivering judgment Evershed M. R. observed as follows:

'The question in the present case is whether, on the facts as found by the County Court Judge (leaving aside for the moment any question of the Rent Acts),' there are circumstances supervening to prevent the tenant from denying that the old relationship has been superseded by the new. If there is a new arrangement which the tenant is asserting by his conduct, then he is estopped from denying that the landlord was capable of entering into that new arrangement; and, it the new arrangement could not be entered into while the old agreement subsisted, it follows that the tenant is equally prevented from denying that the old agreement has gone.'

24. These observations in my opinion also) support the ontentions of Mr. Meyer. In the case which is now before me, the new arrangement which the defendant is asserting by his conduct, is the acceptance of the tenancy under the Government and not recognising any more the plaintiff as his landlord and the defendant is stopped from denying that the old agreement of tenancy was gone. Evershed M. R. while considering the effect of the Rent Restriction Acts to the case before His Lordship, further observed as follows:

'In cases to which the acts apply the position is not quite the same. In such a case the mere determination of contractual tenancy does not of itself make the tenant who stays on a trespasser; for, without the existence of some new supervening arrangement he might, and prima facie would, remain on as a tenant by virtue of his statutory right so to do under the Acts.'

25. Mr. Meyer also has frankly conceded before me that if nothing had happened except the service of the notice to quit and the requisition of the premises in question by the Government, then the defendant's continuance in possession would be that of a statutory tenant under the plaintiff. But what he contends is that in view of the other circumstances to which I have already referred, the position was changed. The old relationship was gone and the defendant is occupying the premises in an entirely different character and it must therefore be held that he had yielded up possession in favour of the plaintiff. In any event, these decisions support the proposition of Mr. Meyer, namely, that mere fact of the defendant continuing in actual possession does not matter & what matters is the change in legal relationship of the parties.

26. Before concluding I should refer to a decision on which Mr. Deb relied in support of his contention. It is the case of 'DENMAN v. BRISE', (1949) 1 K B 22. What happened in that case was that a house within the Rent Restriction Act was destroyed by enemy action in 1940. The tenant accordingly ceased to occupy the premises, but there was no evidence of abandonment or surrender of the tenancy. The landlord built a new house on the site, and the tenant thereupon approached him with a view to occupying it. It was fit for occupation on February 17, 1948, but the tenant was unable to gain possession because the landlord withheld the key. The landlord then determined the contractual tenancy on April 30, 1948, by a notice to quit dated March 9. The tenant thereupon brought an action for possession and It was held that the tenant was entitled to such possession. To my mind this case is clearly distinguishable from the case which is now before me. The decision in the said case proceeded on the footing that the landlord cannot take advantage of his own wrong. The tenant was admittedly entitled to possession. It was the landlord who made it impossible for the tenant to take such possession and having done that the landlord cannot take advantage of his own wrong and contend that the Land Restriction Act would not apply because the tenant had not continued in possession. In other words it seems to me, that the principle of decision for that case was that but for the wrongful act on the part of the landlord the tenant would have been in actual possession of the premises In question, and if that was so he could take |he benefit of the Land Restriction Act. Tucker J. in the course of his judgment observed as follows:

'In the present circumstance I think there was ample evidence to support the County Court Judge's view that there had been no abandonment, that the tenancy subsisted and the landlord could not now rely upon the notice to quit which had been given by him at a date subsequent to that on which he should have admitted the tenant to occupation of these premises. I think this appeal must fail.'

In my opinion, this decision does not help Mr. Deb's contention.

27. On a full consideration of the matter I have come to the conclusion that the plaintiff is entitled to succeed and to recover possessed of the premises in question from the defendant. I have practically covered all the issues in the case. I should state that the issues 6, 7 and 8 do not arise for my consideration. Mr. Meyer also conceded that position, but he reserved his right to put forth his point of view, if it becomes necessary for him to do so, on these issues in appeal, which may be preferred against my decision. In any event, in my opinion, issues 7 and 8 do not arise for my consideration If for instance I come to the conclusion that the tenancy had been determined and the premises had been requisitioned and taken over by the Government and the defendant's conduct amounted to yielding up of possession to the plaintiff, then there is no question of the defendant continuing as a statutory tenant and Mr. Deb as I have already indicated has - conceded that that would be so. In such a case them would be no question of the defendant continuing in possession as a statutory tenant of the plaintiff and therefore the Rent Act would not apply. On the other hand, if I come to the conclusion that after service of the notice to quit the defendant merely continued in possession just as a tenant continuing in possession even after determination of the tenancy and there had been no yielding up of possession by the defendant then the defendant would-be a statutory tenant and the Rent Act would apply. But then, Mr. Meyer said that in such a case there was no necessity of gaping into the question whether the Rent Laws applied or not because apart from the question whether the Rent Laws apply or not his client cannot succeed in this suit. If again, I come to the conclusion that the notice to quit dated the 29th October 1942 is not a valid notice to quit and it did not determine the tenancy of the defendant under the plaintiff and I also hold' that there has been no surrender of the tenancy by tee defendant to the plaintiff then the plaintiff cannot, irrespective of the question of the Rent Laws, succeed. Lastly if1 I come to the conclusion that the tenancy had not been determined by the notice to quit dated the 29th October 1942 but there had been a surrender of the tenancy then the Rent Laws, have no application and the question of the application of the Rent Laws do not arise for my consideration. On any view of the matter I do not see how the issues 7 and 8 arise at all and I do not find it necessary to decide those issues: I shall now formally answer the other issue which have been raised in this case. With regard to issue No. 1, I hold that the Land Ac question Collector took over possession of the premises in suit from the plaintiff. With regard to issue No. 2 I hold that the notice to quit dated the 29th October 1942 was server as alleged in the plaint. I also hold that in any view of the matter it was a valid and sufficient notice terminating the tenancy o the defendant. With regard to issue1 No. 3 I hold that the defendant did not pay and the plaintiff did not accept the sum of Rs. 1301/15/1 as rent up to the 1st February, 1943. I hold that the said sum was really paid for the claim and costs of the plaintiff. In any event, I hold that the notice to quit was not waived by such payment and acceptance by the plaintiff.

28. With regard to issue No. 4, there is no evidence that the defendant paid any rent to the plaintiff during the period of requisition, that is, between 2nd February 1943 . and 21st December 1945. , In this connection, I should mention that at some stage of the hearing it was contended on behalf of the defendant that the defendant paid rent to the plaintiff through the Government. I did not allow such a plea to be raised and I have already expressed my views on this point. I therefore hold that the defendant did not pay any rent to the plaintiff between 2nd February 1943 and 21st December 1945. With regard to the period after 21st December 1945, the defendant has produced a number of challis showing that he had deposited the amount of rent with the Rent Controller and he has also given evidence before me to the effect that he had paid rates and taxes on account of the plaintiff and the deposits which he made with the Rent Controller were made after, deducting the amount of such rates and taxes. There is no evidence to the contrary. I, therefore, hold that the defendant did offer to pay rent for the period after 21st December 1945 which the plaintiff did not accept and such rent had been deposited with the Rent Controller. But as the plaintiff did not recognise the defendant as his tenant, this finding on my part becomes immaterial for the purpose of decision of this case.

29. With regard to issue No. 5, as I have already indicated, this issue really does not arise in view of my decision on the other aspect of the plaintiff's case. But if I am to express my views on this issue, I should hold that the rights of the defendant were surrendered and/or extinguished.

30. With regard to issue No. 6, my decision is that this suit is not barred by reason of the dismissal of suit No. 1566 of 1942.

31. The result, therefore, is that there will be a decree for possession of the premises Nos. 122/3A & 122/4A, Upper Circular Road, Calcutta. Mesne profits at the rate of Rs. 175/-per month from the 21st December, 1945 until delivery of possession and for costs. Certified for two counsel.


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