HARALAL DAS Vs. PASUPATI CHARAN BISWAS

JUDGEMENT

(1.) This appeal is directed against a decree for ejectment from the first and second floors of premises No. 91/1A, Baithak Khana Road, against defendants Nos. 2 and 3 who are in occupation of the aforesaid portions as sub-tenants under defendant No. 1. It appears that by an indenture (Ex. 4.) the plaintiff let out the whole of premises No. 91/1A, Baithak Khana Road to defendant No. 1 (Manoranjan Majumdar) on 1-1-1948 for a term of three years expiring with the end of December 1950. In the lease there was a provision for renewal at the option of the lessee subject to the condition that the lessor did not require the premises for his own use and occupation. On 30-11-1950, the lessor served a notice upon the lessee, defendant No. 1, requiring him to vacate, on the expiry of the lease, that is, by the end of December 1950, as the lessor required the premises for his own use and occupation. On 15-12-1950, the defendant No. 1 sent a reply to the lessor stating that he had sub-let the premises to defendants Nos. 2, 3 and 4 and that the lessor was at liberty to take possession subject to the sub-lease granted to the aforesaid defendants. Thereafter on 16-1-1951, the lessor instituted the present suit for ejectment against defendants Nos. 1 to 4 alleging that he reasonably required the premises for his own occupation. The case made in the plaint is that on account of communal disturbances the plaintiff with his family left the premises in dispute and went to reside in the house of his brother-in-law at Sikdar-bagan Street; that the accommodation in his brother-in-law's house was insufficient and that his brother-in-law was no longer willing to accommodate the plaintiff. Defendant No. 1 did not contest the suit but the defendants Nos. 2 to 4 contested it inter alia on the ground that the story of reasonable requirement was false; that defendants Nos. 2 to 4 had become tenants under the plaintiff on the determination of the lease in favour of defendant No. 1 by surrender and therefore the suit was not maintainable without the service of a notice to quit upon them and that though the lease was in favour of defendant No. 1 alone defendants Nos. 2 to 4 were in reality joint lessees and as such co-tenants with defendant No. 1 and accordingly a notice to quit was required to be served upon them as well.

(2.) The trial court overruled the defence and granted a partial decree for ejectment against defendants Nos. 2 and 3 alone upon the view that the portions occupied by them would satisfy the requirement of the plaintiff and dismissed the suit against defendant No. 4 who is occupying the ground floor of the premises in dispute. The decree against defendants Nos. 2 and 3 having been affirmed on appeal they have brought this second appeal. The trial court found upon the evidence on record that the defendants Nos. 2 and 3 were not co-tenants with defenaant No, 1 and that finding has not been, challenged by them.

(3.) Mr. Mukherji, appearing in support of the appeal, has arguea in the first place that the notice to quit served upon the defendant No. 1 is bad in law inasmuch as under Section 110, T. P. Act the date on which the lease, Ex. 4, was to commence should be excluded and the lease should be aeemed to have lasted during the whole anniversary of the day from which the period of three years commenced. Therefore, the notice served by the plaintiff requiring the defendant No. 1 to quit and vacate by the end of December 1950 was not sufficient in law, to determine the tenancy because the tenancy subsisted till the midnight of 1-1-1951, under the provisions of Section 110, T. P. Act. Reliance was placed on the decision of the Judicial Committee in the case of -- 'Benoy Krishna Das v. Salsiccioni', AIR 1932 PC 279 (A). It appears to us that this contention is entirely untenable because in this case the dates of commencement and expiry are both mentioned in the lease Ex. 4. The first para, of the lease is as follows: "The period of the lease shall be three years commencing from January 1948 upto the last day of December 1950." The second paragraph of Section 110, T. P. Act comes into operation when the date of termination is not mentioned in the lease. Where, as here, the date, of expiry is specified in the contract between the lessor and the lessee neither Section 10 nor the principle of the decision in 'Benoy Krishna's case (A)' will apply. The first point is accordingly overruled.