ISWAR SRIDHAR JIEW Vs. ANUP LAL SHARMA

JUDGEMENT

(1.) The only point in this appeal is whether the tenancy of the respondent in respect of the suit room under the plaintiff-appellant deity was for 'manufacturing purposes' or for 'other purpose' within the meaning of Section 106 of the Transfer of Property Act The learned Judge of the Trial Court has dismissed the ejectment suit brought by the appellant-deity against the defendant-respondent on the ground of default in payment of rent upon the view that the tenancy of the defendant was for manufacturing purposes and therefore the said tenancy was only terminable by service of a six months' notice expiring with the year of the tenancy. The learned Judge of the Court below incidentally found that the defendant had committed default in payment of rent for four months and therefore, the ground under Section 13 (1) (i) of the West Bengal Premises Tenancy Act had been established by the plaintiff-appellant.

(2.) In my opinion, the learned Judge's finding regarding the purpose of letting of the suit room in favour of the defendant-respondent cannot be sustained. The burden of proof was heavily upon the defendant-respondent to satisfactorily prove that the tenancy taken by him was exclusively for manufacturing purposes or at least the dominant purpose was for user for manufacturing purposes. Secondly the defendant was required to establish that the activities carried on by him in the suit premises constituted manufacturing purposes within the meaning of Section 106 of the T. P. Act. In this connection Mr. Roy, learned Advocate for the appellant has rightly placed reliance upon the recent decision of the Supreme Court in Allenbury Engineers Pvt. Ltd. v. Sri Ram Krishna Dalmia. Shelat J. delivering the judgment of the Court laid down that the burden of proving that the lease was for manufacturing purposes, must for the purposes of Section 106, lie on the party who claims it to be so. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. The expression 'manufacturing purposes' in Section 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having applied any dictionary of its own for that expression. The word 'manufacture' implies a change, but a mere change in the material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use.

(3.) In my view none of the aforesaid requisites has been fulfilled by the defendant-respondent. The plaintiff-appellant produced an alleged agreement dated 1st December 1960 Ext. 4. The same was described as an acknowledgement of payment of Rs. 80/- in pursuance of a mutual oral agreement between the parties regarding letting out the said room in favour of the defendant. The said acknowledgment/agreement did not mention the purpose of the letting. The last paragraph of the said agreement/ acknowledgment stipulated that the tenant observing the terms and conditions shall be entitled to a rebate of Rs. 8/-per month from monthly rent during the period of his occupation. Another stipulation was that the security deposit of Rs. 80/- made by the defendant would be refundable to him only on his vacating the tenement after giving due notice of one calendar month. The learned Judge of the Court below refused to take the said agreement into consideration upon the view that the agreement was not signed by D. N. Srimani as Shebait of the deity and therefore, the said contract was not between the present plaintiff and the defendant. The time construction of the said agreement would be law (sic). Therefore, the concession made on behalf of the plaintiff noted in the judgment does not really bind the present appellant from contending that the view taken by the learned Judge regarding the effect of the said agreement/acknowledgment was plainly erroneous. The premises admittedly was owned by the plaintiff-deity. The said D. N. Srimani did not set up any beneficial title in himself. He was throughout acting as a Shebait. The defendant's plea that he did not understand the contents of the said agreement was presumably not accepted by the trial Court. Therefore, the omission on the part of the said D. N. Srimani to describe himself as the Shebait of the plaintiff-deity did not make any difference to the true legal position that in the instant case he was acting on behalf of the plaintiff-deity in inducting the defendant as a tenant of the disputed room. It is not really the form of the agreement but the substance which matters. In substance the agreement was between the deity represented by the said D. N. Srimani and the defendant.