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Beer Bikramkishore Manikya Vs. Sonamani Sharma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal530
AppellantBeer Bikramkishore Manikya
RespondentSonamani Sharma
Cases ReferredSavi v. Mohesh Chunder Bose
Excerpt:
- .....the previous decrees for rent for the period from 1332 to 1334 b.s., and also on the ground that rent for year 1336 b. s. had not been paid. it appears that the plaintiff in the suits obtained decrees for rent against the defendants for the years 1332 to 1335 b. s., and in the decrees passed in favour of the plaintiff it was mentioned that the defendants could avoid ejectment, if they' paid the plaintiff his dues for 1335 b.s. within the time mentioned in the decrees. the dues for the year 1335 b.s. were paid up within the time specified, but there was subsequent non-payment of rent by the defendants in the year 1336 b. s., and the dues on account of the years 1332 to 1334 were also not paid. in the suits, out of which these appeals have arisen, the plaintiff prayed for eviction of the.....
Judgment:

1. These are appeals by the plaintiff in suits for ejectment on the ground that the defendants had not satisfied the previous decrees for rent for the period from 1332 to 1334 B.S., and also on the ground that rent for year 1336 B. S. had not been paid. It appears that the plaintiff in the suits obtained decrees for rent against the defendants for the years 1332 to 1335 B. S., and in the decrees passed in favour of the plaintiff it was mentioned that the defendants could avoid ejectment, if they' paid the plaintiff his dues for 1335 B.S. within the time mentioned in the decrees. The dues for the year 1335 B.S. were paid up within the time specified, but there was subsequent non-payment of rent by the defendants in the year 1336 B. S., and the dues on account of the years 1332 to 1334 were also not paid. In the suits, out of which these appeals have arisen, the plaintiff prayed for eviction of the defendants on account of non-payment of rent for the year 1336 as also for non-satisfaction of the previous decree, so far as they related to arrears of rent for the years 1332 to 1334. The Courts below have agreed in passing decrees for ejectment in favour of the plaintiff in the manner following: The defendants are called upon to pay into Court the rent for 1336 as claimed, with damages and costs, within one month ; failing which the defendants will be evicted from the rent lands. The plaintiff's prayer for ejectment on account of unsatisfied portions of the previous decrees is disallowed.

2. The plaintiff has appealed to this Court; and it was urged, in support of the appeal, that the unexecuted portions of the decrees for the years 1332 to 1334 should have been included in the amount, for the non-payment of which the tenant-defendants could be ejected. The decision of the question raised in the appeals depends upon the construction of the Sub-section 22, 27 and 52, Bengal Act 8 of 1869. It is to be mentioned at the outset that Section 52 gives the landlord a right to bring a suit for ejectment and for arrears of rent in the same action ; and the section enables the landlord to adduce any unexecuted decree for arrears of rent, as evidence of the existence of such arrear in a suit for ejectment. The Section 52 therefore lays down the procedure, by which the land lord's right Under Section 22 of the Act of ejecting a tenant is to be enforced. As indicated clearly in Sub-section 22 and 27 the claim for rent, for the non-satisfaction of which the liability to be evicted is incurred under the law, must be on account of the arrear of rent remaining due from the tenant at the end of the Bengali year. The tenant, as mentioned in Section 22,

shall be liable to be ejected from the land in respect of which the arrear is due.

3. The arrears referred to in Section 22 is the arrear to which reference has been made in the previous part of the section: ' arrear of rent remaining due at the end of the Bengali year, ' The effect of the provisions contained in the Sub-sections 22, 27 and 52 of Act 8 of 1869 is that the right is given to the landlord to eject a tenant if any arrears are due at the end of the year, i.e., for non-payment of rent for that year. The forfeiture or determination of the tenancy takes place by the operation of Section 22, when the tenant makes default in the matter of payment of rent due at the end of the year. In laying down the procedure for an action for recovery of arrears of rent and for ejectment of a tenant the mode of enforcing his rights by the landlord-mention is made of an unexecuted decree for arrear of rent. The provision thus made in Section 52 in the matter of production of evidence before the Court does not affect the substantive provisions contained in Section 22 of Act 8 of 1869, laying down the liability of a tenant to be ejected for arrear of rent due. The arrear to be taken into account has been definitely mentioned in the section itself and arrears, other then the arrear remaining due at the end of the year, cannot be taken into account for the purpose of a decree for ejectment as contemplated by Section 22, which is the only provision in the enactment, under which the landlord can exercise his right to eject a tenant on the ground of non-payment of rent. The forfeiture or the determination of the tenancy takes place when the tenant makes default at the end of the year, and dues on account of rent for previous arrears have not to be taken into account for the purpose of passing a decree for ejectment;. As provided by Section 52 the landlord may combine a claim for ejectment, with a claim for realization of arrears of rent. There may be a decree for arrears for any period in respect of which the claim is not barred under the law; but so far as the decree for ejectment is concerned, the non-payment of dues on account of rent for a period other then the year previous to the institution of the suit cannot under the law, as contained in Sub-section 22 and 27, Bengal Act 8 of 1869, be taken into account.

4. In view of the above conclusion arrived at by us, the decision of the Courts below, that the arrears of rent due from the tenants for the years 1332 to 1334 could not be included in the amounts, for non-payment of which the tenant-defendants were to be ejected, is in our judgment correct and must be upheld. It may be mentioned that the conclusion we have arrived at bearing upon the interpretation of Sub-section 22 and 52 of Act 8 of 1869 is in consonance with the view indicated in the judgment of this Court in the case of Jogeshuri Chowdhrain v. Mahomed Ebrahim (1886) 14 Cal 33. Reliance was placed on behalf of the appellant on the decision of this Court in the case of Savi v. Mohesh Chunder Bose (1864) WR Act 10 Rul 29, for the proposition that the amount of arrear shall be specified in the decree passed by the Court on the non-payment of which eviction was to follow. The facts of the case, in which the aforesaid decision was given, do not appear from the report; and we are unable to hold that the learned Judges deciding the case meant to lay down anything, which was not provided for by the law. As indicated above Sub-section 22 and 27, Bengal Act 8 of 1869 provide for ejectment for non-payment of arrears of rent due on account of the year preceding the institution of the suit, and we do not find anything in the decision referred to above, which could enable us to overlook or disregard the provision of the law bearing upon the subject under consideration. In the result, the appeals are dismissed; the decisions arrived at by the Courts below and the decrees passed by them are affirmed. There is no order as to costs in these appeals.


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