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Binapani Devi Vs. Surendra Nath Haldar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Case NumberA.F.A.D. Nos. 2086 and 2087 of 1945
Judge
Reported inAIR1950Cal532
ActsWest Bengal Non-agricultural Tenancy Act, 1949 - Section 88; ;West Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 - Section 3; ;Tenancy Law
AppellantBinapani Devi
RespondentSurendra Nath Haldar and anr.
Appellant AdvocateHeramba Chandra Guha and ;Narendra Nath Banerjee, Advs.
Respondent AdvocateApurba Charan Mukherjee, Adv.
DispositionAppeal allowed
Excerpt:
- .....88, west bengal non-agricultural tenancy act, the provisions of this act would be attracted in all suits, appeals and proceedings in respect of non-agricultural tenancies which were pending at the date of the commencement of the act. this act came into force on 15th may 1949. the judgment and decree passed by the lower appellate court must therefore be set aside and the appeal sent back for rehearing according to law. it will be for the learned subordinate judge to consider whether the provisions of the new act are applicable and if so, whether the plaintiff is entitled to a decree for ejectment as prayed for. all the points raised in the court of appeal below will also be considered again during the re-haring of the appeal. 8. the appeal is accordingly allowed and the case sent back to.....
Judgment:

R.P. Mukerjee, J.

1. This appeal is on behalf of the plaintiff and arises oat of Title Suit No. 20 of 1944. The plaintiff had brought the suit on the plea that the defendant had taken settlement of the tank in suit for three years from Agrahayan 1346 B. S. to Jaista 1349 B. S. after executing a kabuliyat. After the expiry of the lease the defendant had continued in possession, though the plaintiff had not assented to such possession. The defendant, according to the plaintiff, is a trespasser and the prayer is for an ejectment from the demised property. The defence raised various points but the one material for the purpose of the present appeal is that the tenant had paid rent up to 1350 B.S. and that there had been a further agreement by the landlord accepting fresh tenancy after the expiry of the lease in Jaistha, 1349 B. S.

2. Both the Courts below have dismissed the suit. Hence this appeal on behalf of the plaintiff. The learned Subordinate Judge has on a consideration of the evidence--oral and documentary--arrived at a finding of fact that Exs. B-20 and B-21 being dakhilas issued by and on behalf of the plaintiff were genuine and that the plaintiff by acceptance of rent up to 1350 B.S., as evidenced by those dakhilas, permitted the defendant to hold over. This decision is by itself sufficient to dispose of the suit as framed. It is not the case on behalf of the plaintiff that she had given notice terminating the tenancy when the tenant was holding over after the expiry of the lease in 1340 B.S. In this view the suit has to be dismissed and the appeal also dismissed.

3. The learned Subordinate Judge has gone into other questions as well which are not necessary for the disposal of the suit. What the nature of the tenancy is after the expiry of the lease in Jaista, 1349 B. S. need not be examined in the present suit. It is also not necessary to consider what is the legal effect of the lease evidenced by EX. E in the case. These are questions which may arise hereafter when steps are taken, if any, to terminate the tenancy which the defendant has got by holding over and the findings arrived at, except on the question that there was acceptance of rent by the plaintiff up to 1350 B.S., are therefore set aside as being unnecessary.

4. The appeal is accordingly dismissed.

5. There will be no order for costs.

6. S. A. No. 2087/45: This appeal is on behalf of the plaintiff and arises out of Title Suit No. 21 of 1944. The plaintiff's case is that the defendant had taken settlement of the suit land under a lease which expired in Asar, 1348 B.S. and that even after the expiry of the lease when the defendant continued to be in possession, he is a trespasser and is liable to be ejected therefrom. The defence raised certain questions as to the real person with whom the lease had been executed but the real point raised and which is pertinent in the appeal now before me was that after the expiry of the period of the lease in Asar, 1348 B.S. the plaintiff had agreed to grant a mourashi right and that in pursuance of that agreement he had been holding over and certain payments were also made. A further plea was raised as under the provisions of the Bengal Non-Agricultural Tenancy Act which was then in force. The Courts below held that the prayer for ejectment, though otherwise valid, the defendant could not be ejected as ejectment was barred under Section 3, Bengal Non-agricultural Tenancy Act which was then in force. Direction was given that execution of the decree for delivery of possession would be stayed during the pendency of the Bengal Non-agricultural Tenancy (Temporary Provisions) Act if the rent due together with costs were deposited in Court within 30 days from the date of the decree. The deposit was made within the time fixed by the Court. On appeal by the plaintiff before the learned Subordinate Judge the order for stay as made by the trial Court was maintained and the appeal was dismissed. Hence this appeal by the plaintiff.

7. During the pendency of the appeal in this Court the Bengal Non-agricultural Tenancy (Temporary Provisions) Act has been superseded by the West Bengal Non-agricultural Tenancy Act (Act XX [20] of 1949). Although the order for stay as issued by the Courts below was to be effective during the period the Non-agricultural Tenancy Act was in force, we have to consider now whether the plaintiff's prayer for ejectment is maintainable under the provisions of the West Bengal Non-agricultural Tenancy Act. Under Section 88, West Bengal Non-agricultural Tenancy Act, the provisions of this Act would be attracted in all suits, appeals and proceedings in respect of non-agricultural tenancies which were pending at the date of the commencement of the Act. This Act came into force on 15th May 1949. The judgment and decree passed by the lower appellate Court must therefore be set aside and the appeal sent back for rehearing according to law. It will be for the learned Subordinate Judge to consider whether the provisions of the new Act are applicable and if so, whether the plaintiff is entitled to a decree for ejectment as prayed for. All the points raised in the Court of appeal below will also be considered again during the re-haring of the appeal.

8. The appeal is accordingly allowed and the case sent back to the Court of appeal below for rehearing according to the directions given above.

9. Costs incurred by the parties in this Court will abide the result.


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