SHANTI DEVI Vs. AMAL KUMAR BANERJEE

JUDGEMENT

(1.) The only point involved in this appeal from a judgment of the Calcutta High Court, in reversal of the judgment and decree of the Addl. District Judge, affirming those of the Subordinate Judge, Birbhum, and dismissing the plaintiff's suit for ejectment, is whether the plaintiff's suit for ejectment was not maintainable without a notice under S. 106 of the Transfer of Property Act, 1882.

(2.) 'The material facts of this case are its follows- By an indenture of lease dated March 19, 1956, the appellant who was the plaintiff, demised a cinema theatre known as 'Shanti House, situate at Sainthia under Anchal Panchayat in district Birbhum, to the respondent-defendant for a term of four years with a covenant of two renewals of three years each. The lease of this cinema theatre was to commence from the date on which the defendant was able to procure a licence. On May 2, 1970, the plaintiff brought a suit for ejectment on the ground that the lease had expired by efflux of time and also pleaded in the alternative that he had sent a notice dated April 3, 1970 to the defendant both at his Calcutta address and at his Sainthia address determining the tenancy with the expiry of the month of April, 1970. The defendant contested the plaintiff's claim on various grounds. The defendant pleaded, inter alia, that no notice under S. 106 of the Transfer of Property Act having been served upon him, the suit was not maintainable. The High Court and the courts below have confined their attention to the question whether any valid quit notice had been served on the defendant without entering into the controversy whether such a notice was necessary or not. Both the learned Subordinate Judge as well as the learned District Judge upheld the plaintiff's claim that the lease had been validly determined by service of a quit notice and accordingly decreed his suit. The High Court, however, reversed that decision of theirs holding that service of a notice under S. 106 of the Transfer of Property Act on the defendant had not been proved and, therefore, held that the plaintiff's suit for ejectment was not maintainable.

(3.) There can be no doubt that the High Court and the courts below have without applying their mind as to the question whether S. 106 of the Transfer of Property Act was applicable or not, proceeded to deal with the question as to the validity of the notice, on the assumption that the lease was a lease from month to month. They have completely overlooked the fact that the lease was for a term of four years with a covenant for renewal for two terms of three years each, i. e., a lease for a definite duration of ten years. The preamble of the lease deed recites that the lessor, in consideration of the rent reserved and the conditions contained therein, demises unto the lessee the tenement of the cinema theatre known as 'Shanti House' "for a term of four years", with option on the part of the lessee for renewal and subject to his paying a monthly rent of Rs. 400 as reserved. Clause (g) of the first part which deals with the lessee's covenants, provides that the lessee shall at the expiration of the said term or at the expiration of the renewed term, if any, peaceably and quietly deliver possession of the cinema theatre to the lessor. Clauses (v) and (vi) of lessor's covenants, i.e., the second part of the deed lay down that the lessor in the first instance, at lessee's request shall grant a fresh lease for a term of three years and on the expiry of such term, on a similar request, a further fresh lease for another term of three years. The lease deed further provides by clause (6) of the third part, that in the event of the lessee's failure to procure a licence by April 30, 1956, the demise shall not take effect. The lease was duly effected by a registered instrument. It is not disputed that the defendant secured the licence on January 11, 1960. The period of the lease, therefore, commenced from that date.