SURYA PROPERTIES PRIVATE LTD Vs. BIMALENDU NATH SARKAR

JUDGEMENT

(1.) This reference arises out of a suit for ejectment brought by a landlord against the tenant on the ground that the tenant had constructed without the consent of the landlord a brick built room on the roof of the tenanted premises and had thereby done an act contrary to the provisions of clause (p) of Section 108 of Transfer of Property Act. It is alleged in the plaint that the tenancy was terminated by a notice dated 18th July, 1956, calling upon the defendant to give up possession on the expiry of the last day of August 1956. The defence State up in the written statement is that a small temporary tin shed was constructed on the roof upon the existing walls with the consent of the plaintiff and on an increment of rent of 5%. The defendant further challenges the validity and sufficiency of the notice of termination of the tenancy and also pleads that the said notice dated 18th July, 1956 was waived and/or withdrawn by a subsequent notice to quit dated 24th August, 1956, expiring with the end of September, 1956.At the hearing of the suit before the Court of Small Causes, Calcutta the following issues were raised :-

(2.) The learned trial Judge answered the first issue by holding that a small room with 3" brick be considered as a permanent structure as it could easily be removed at any time. With regard to the second issue the learned Judge held that two notices had been served on the defendant but the first was one of termination of tenancy under Section 106 of the T.P. Act and the second was a notice as contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, but the second notice was not a notice of ejectment and therefore there was no waiver of the first notice by the second. In view, however, of the finding on the first issue it was held that the plaintiff was not entitled to any relief in the suit. An appeal was preferred against the decree of the trial Court to this Court and the learned Judges of the Division Bench before whom this appeal came up for hearing felt that the question arising for determination were of considerable importance and they made a requisition to me under proviso (ii) Rule 1, Chapter II of the Appellate Side Rules for consideration of two questions by a Special Division Bench. The questions so referred are as follows :-

(3.) The second question which has raised problems of no little difficulty may be dealt with first. The second question is composed of several parts and the first matter to be considered whether a notice contemplated in Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 is a notice to quit or a notice of suit or it is a combined notice to answer both the above purposes. It is, therefore, essential to set out the text of Section 13 (6) which is as follows :-