MUNSHI HOSSAIN BAKSH Vs. KHUDIRAM MUKHERJEE

JUDGEMENT

(1.) This is an appeal by the tenant defendant in a suit instituted by the plaintiff for recovery of possession on declaration of his title. The plaintiff's case is that one Krishnadhan Dey settled about 4 decimals of bastu land, being the suit land, to the defendant for a period of 7 years from Magh 1342 B.S. to Pous 1349 B.S. at a monthly rent of Rs. 3/- on the basis of a registered lease executed on Bhadra 5, 1343 B.S. The defendant had been since in possession of the said land on the basis thereof and there was an express stipulation in the lease that he would be entitled to raise only kutcha structure and never any pucca structures thereon nor he would acquire any permanent right. It was further provided therein that on the expiry of the lease he would be liable to vacate the land without any objection or pretext. By a deed of gift dated Aswin 13, 1346 B.S. the suit land was gifted to the plaintiff. After the expiry of the lease on Pous, 1349 B.S. the defendant failed and neglected to vacate the land claiming that he was entitled to possession under the provisions of the Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940, hereinafter referred to as the 1940 Act. As under the provisions of the said Act the defendant could not be evicted, the plaintiff could not take any steps for his eviction and was under compulsion to receive the compensation at the rate of rent sent to him, by postal money order. By such receipt the plaintiff's right was not in any way prejudiced nor the defendant was and continued to be in occupation of the land by any implied consent or by holding over. Though notice was not necessary the plaintiff gave a notice dated Ashar 10, 1359 B.S. calling upon the defendant to quit the suit land with the expiry of the month of Pous, 1359 B.S. The notice was also read over to him but as the defendant declined to give any receipt, thereafter a copy of the notice was served by hanging at his usual place of residence. It was contended that the defendant had no right to remain on the land after the repeal of the 1940 Act by the West Bengal Non-agricultural Tenancy Act, 1949, hereinafter referred to as the 1949 Act, and accordingly the plaintiff instituted the suit on February 23, 1954 (Falgoon 11, 1360 B.S.) praying for recovery of possession of the suit land on eviction of the defendant therefrom. Mesne profits for preceding 3 years were also claimed from Falgoon 1357 B.S. to Mash 1360 B.S. at the rate of Rs. 6/- per month for Rs. 216/-.

(2.) The suit was contested by the defendant who contended inter alia that notice to quit which was invalid and insufficient, was also not served on him as required under the 1949 Act, that the defendant was in occupation of the land after expiry of the lease by holding over; and his right was accordingly governed by the provisions of the said Act under which he was not liable to eviction. It was stated that the plaintiff realised rent direct from him upto 1353 B.S. and thereafter rent was sent by money order which was duly accepted by the plaintiff and such acceptance thus established that the defendant was holding over the suit land. In the circumstances the defendant contended that the suit should be dismissed.

(3.) The learned Munsif, on a trial on evidence, held that the notice was never served on the defendant, that as the land was held under a written lease no notice was necessary, that the defendant's claim that he was holding over the land was untenable as rent was accepted upto 1355 B.S. when the 1940 Act was in operation which stayed all proceedings for eviction during its pendency and the plaintiff was not barred by waiver or estoppel to claim the reliefs claimed. The suit was accordingly decreed for possession on declaration of the plaintiff's title while compensation was awarded at the rate of Rs. 3/- per month.