BHABATARINI DASSI Vs. MONOMOHAN PALSAI

JUDGEMENT

(1.) This Rule was issued at the instance of a tenant, who has been ordered by the court of appeal to be evicted in and suit brought by the landlord.

(2.) The facts are simple. The opposite party, landlord, entered into an agreement by way of a lease with the Petitioner, tenant, for a period of nine years, in which, after the expiry of the period, there was to be eviction without notice. Unfortunately for the landlord, the document was executed and registered by the Petitioner alone, and it was not a bilateral document, as required under the Transfer of Property Act to be a valid lease. It appears that the tenancy is a thika tenancy and the period of nine years expired before the Thika Tenancy Act was extended to the town of Howrah. The result was that the landlord brought a suit before the Thika Tenancy Act came into operation at Howrah for ejectment of the tenant, alleging that by efflux of time, the period of the lease having expired, the tenant had become liable to eviction. The munsif very rightly pointed out that, as the so-called lease was executed by one party alone, it could not operate as a valid contract of tenancy or lease, and therefore, the tenancy was a monthly one and, under the ordinary law, a notice to quit was essential. He further held that the fact that the Thika Tenancy Act which had come into force in Howrah after the ejectment suit had been filed did not give the landlord the right to eject in the absence of a notice to quit. On appeal, the Subordinate Judge held that, though the so-called lease was invalid, being a unilateral act, it could be used by the landlord for the purpose of ejecting the tenant by virtue of Section 53A of the Transfer of Property Act as an act of part performance of the so-called lease. We need not enter into this wholly unsupportable argument as Mr. Apurba Charan Mukherji very rightly did not attempt to support the Subordinate Judge and admitted that he was wholly wrong. It has been repeatedly pointed out that Section 53A of the Transfer of Property Act is a shield and not a sword. It cannot be used as a weapon of attack. It can only be put up as a means of defence. The learned Subordinate Judge further held that, reading Sections 29, 3 and 4 of the Thika Tenancy Act, the landlord could eject, in spite of the absence of any notice to quit. Section 29 lays down that all suits and proceedings then pending for ejectment of a thika tenant are to be transferred to the Controller who shall then deal with it in accordance with the provisions of that Act. By a proviso, the special notices required under Section 4 are dispensed with in case of such transferred suits or proceedings. Section 3 of the Act lays down certain special reasons, without proving which, the landlord is further prevented from ejecting a thika tenant. As there can be no doubt that the tenancy in law was a monthly tenancy, no cause of action arose and no right to sue accrued to the landlord till the notice to quit has been validly given and duly served. Neither Section 3, nor Section 29, nor Section 4 of the thika Tenancy Act provides that, before the Thika Tenancy Act come into force, the landlord is permitted to evict a tenant, even though, at the time when he brings the suit, the right to sue had not accrued. All that these sections have done is to. place a further bar to the right of the landlord to eviction of a tenant. He must first have the right to evict and then the question of the further bars under Sections 29, 4 and 3 of the Thika Tenancy Act can come into consideration. In the present case, there was no right to evict till a proper notice to quit was duly served. The learned Subordinate Judge, therefore, was wrong in holding that the tenant could be ejected without a notice to quit.

(3.) Mr. Apurba Charan Mukherji has next argued that, though the lease was invalid, it was not inadmissible in evidence and the term in the lease providing for eviction after the expiry of nine years may be taken as an admission on the part of the tenant. It is unnecessary for us to examine certain Allahabad decisions, in which the question of the admissibility of such a lease in evidence has been considered. The question is not whether the document is admissible, but the question is whether when admitted into evidence, does it operate as a valid contract between the parties, that is, as a contract which can be taken as a contract to the contrary which dispenses with a notice to quit under Section 106 of the Transfer of Property Act, It cannot do so as a contract, because the statute prevents such a contract being a legally valid one, unless it is signed by both parties and it cannot operate as an. estoppel as far as the tenant is concerned, for the very simple reason that there can be no estoppel against a statute and the law does not permit a legal prohibition being circumvented by raising an estoppel.