BAMAPATI BHATTACHARJYA Vs. LAXSHMI BIBI

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holders under Clause 15, Letters Patent, and is directed against a judgment of Mookerjee J.

(2.) By a Kabuliyat dated 11-3-1921, the respondent Lakshmi Bibi took a lease of the disputed property from the predecessors of the appellants. This lease, it is not disputed, created a non-agricultural tenancy. The appellants served a notice to quit and thereafter on the expiry of the notice, instituted a suit in ejectment. The suit was decreed on 26-2-1940. This decree was executed and the appellants who are the decree-holders took possession on 26-4-1940. It is stated that in pursuance of the order of the Court the decree-holders paid for the value of the structures. The possession of the decree-holders was thereafter confirmed on 26-5-1940. On 30-5-1940, the Non-agricultural Tenancy (Temporary Provisions) Act of 1940 came into force. Thereafter, on 20-6-1940, the respondent filed a petition under Section 4 of the said Act for setting aside the order for delivery of possession and for recovery of possession of the disputed property. On 27-7-1940, the decree-holders not opposing the application, the Court made an order in terms of Section 4 setting aside the order for delivery of possession and directing restoration of possession. The learned Judge has found that thereafter Lakshmi Bibi continued in possession. The life of the Non-Agricultural Tenancy Act of 1940, was in the first instance, for a term of two years and it was thereafter extended. It was superseded by the West Bengal Non-agricultural Tenancy Act of 1949 which came into force on 5-5-1949. Section 91 (1) of this Act repealed the Non-agricultural Tenancy Act of 1940. On 11-1-1950, the appellants made an application for execution of the decree which they had obtained as far back as 26-2-1940 and prayed for recovery of possession. Notice under Order 21, Rule 22, Civil P. C., was directed to be served. The two courts below differed on the question whether the notice under Order 21, Rule 22 of the Code had been served. In this Court Mookerjee J. has not come to a finding on the question. When the application for execution was made, the respondent filed an objection that she was entitled to protection under the 1949 Act. The trial court gave effect to the objection but on appeal the lower appellate court reversed the decision of the trial Judge and directed delivery of possession. Against this order, the respondent took an appeal to this Court. Mookerjee J. set aside the order of the lower appellate court and allowed the appeal filed by the respondent. It is the propriety of this judgment which is now in controversy in this appeal.

(3.) Mr. Bagchi, learned Advocate for the appellants decree-holders, has contended, in the first instance, that the respondent Lakshmi Bibi cannot now be regarded as a non-agricultural tenant in view of the fact that the decree-holders had paid for the price of the structures. This question which is essentially a question of fact was not canvassed in any of the courts. On the other hand, when the respondent Lakshmi Bibi made an application under Section 4 of the 1949 Act, the decree-holders conceded that she was entitled to restoration of possession. It does not appear from the record that the huts have been removed. In these circumstances, it is too late in the day now for the decree-holders to agitate this question of fact in the third court of appeal. This contention must therefore be overruled.