PEART CHARAN LAHA Vs. FANINDRA NARAYAN RAY

JUDGEMENT

(1.) This is an appeal by the Defendants from an appellate decree reversing a decree passed by the trial court in a suit by the Respondent for ejectment of the Defendants from a tenancy in two plots of land, namely, C.S. plots Nos. 8362 and 8362/9891 recorded in khatiyan Nos. 1930 and 1929 respectively of Mouzah Chinsurah within the Hooghly-Chinsurah municipality. The Plaintiff's case briefly was that his father Rajendra Narayan Ray let out the two plots to one Annada Charan Laha, the predecessor of the present Defendants for the purpose of erecting a stable on it and that the tenancy was a thika tenancyat-will which was terminated by service of proper notice to quit from the beginning of Ashwin, 1352 B.S. The Plaintiff also claimed to recover rent for the years 1350 and 1351 B.S. at the rate of fourteen annas and six pies. The Defendants challenged the claim for ejectment by setting up a permanent tenancy and also contended that the suit was liable to be stayed under the provisions of the Bengal Non-agricultural Tenancy (Temporary Provisions) Act and further challenged the legality, the validity and the sufficiency of the alleged notice to quit. Their plea also was that the rate of rent was eight annas per year and not fourteen annas and six pies as recorded in the C.S. khatiyan.

(2.) The learned trial court found that the tenancy was a yearly tenancy and that notice of sis months is required and that the tenancy was a permanent one. The trial court further found that under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, the suit was liable to be stayed. The claim for recovery of arrears of rent was decreed by the trial court at the rate of fourteen annas and six pies per year for two years but' the claim for recovery of khas possession was dismissed. On appeal the decree of the trial court dismissing the Plaintiff's claim for khas possession was set aside and even that part of the Plaintiff's claim was decreed. It is against this part of the appellate decree that the present appeal is directed.

(3.) The only point argued before me on behalf of the Appellant is that under the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act of 1949, the provisions of this Act are applicable even to an appeal and under Section 7 of this Act it is not open to a court to pass a decree in ejectment against a tenant holding non-agricultural land. This Act came into operation with effect from May 15, 1949. The trial court's decree was passed on February 21, 1947 and the decree of the lower appellate court was passed on July 15, 1948, so that both the decrees were passed before the West Bengal Non-Agricultural Tenancy Act, 1949, came into operation. The appeal was filed on November 15, 1948, so that the West Bengal Non-Agricultural Tenancy Act of 1949 came into operation after the filing of the appeal. Section 88 of this Act is as follows: