MOTILAL SAREOGI Vs. CHIRANJILAL KHAITAN

JUDGEMENT

(1.) This is a second appeal by the Defendant in a suit for ejectment which was filed in the Court of the Additional Subordinate Judge, Purulia, on May 29, 1952, being T.S. No. 2/2 of 1949/52. The facts are shortly as follows: The Plaintiffs are the owners of the two contiguous plots of land comprised in Holding Nos. 178 and 179 measuring 3 bighas which have been describe in Schedule I of the plaint. The case for the Plaintiffs is that ii 1935 they leased out a vacant portion of the land namely, portion described in Schedule II of the plaint, to one Chunila Ganapat Rai under a registered document for a term of sever years. After taking the lease, Chunilal Ganapat Rai constructed rooms on a portion of the demised land. The lease having expiree in 1942, Chunilal Ganapat Rai gave up possession and the lessors re-entered upon the property in July, 1942. In the latter part o June, 1943 the Plaintiffs let out a vacant portion of Schedule II land, described in Schedule III of the plaint, to the Defendant on monthly rental of Rs. 20 according to the English calendar. It is stated that this was an oral lease which the Defendant took for carrying on a motor business. The Defendant asked for permission to erect a temporary shed, but in 1947, behind the back of the Plaintiffs constructed several structures on the land without the knowing and consent of the Plaintiffs. It is stated that in August, 1948, the Defendant was requested to remove the structures which he failed to do. On or about September 19, 1948, the Plaintiffs served a notice to quit on the Defendant determining the tenancy with effect from November 1, 1948. The Defendant did not comply with the notice, nor did he make over possession and accordingly the Plaintiffs instituted the ejectment suit mentioned above, on January 3, 1949. The reliefs asked for in the plaint are for ejectment of the Defendant in respect of the Schedule III land for possession, removal of the constructions and other reliefs. The Defendant resisted the Plaintiff's claim on various grounds. Some of the main grounds are as follows: It was stated that there was a lease in writing for a term of 30 years. Under the terms of the lease, the Defendant was authorised to erect structures on the land for the purpose of carrying a motor business and he made constructions in terms thereof. Towards the beginning of 1947, the Plaintiffs made a proposal for the sale of the entire Schedule I land to the Defendant and the Defendant agreed to buy the land for Rs. 40,000. Thereafter, land acquisition proceedings were commenced and it was contested by the Defendant and ultimately was dropped. In the meanwhile, by agreement between the parties, the Defendant made a construction costing about Rs. 30,000. Thereafter, the Plaintiffs would not sell the property for the agreed price and there was another agreement by which the consideration money was increased to Rs. 50,000. The necessary stamp paper was purchased and a draft conveyance was prepared and the unregistered agreement of lease of 30 years was returned to the Plaintiffs, in view of the impending sale. Thereafter, the Plaintiffs went back on the agreement of sale. It was pleaded that Section 53A of the Transfer of Property Act was a bar to the Plaintiff's claim, that they were estopped from ejecting the Defendant from the suit land and in any event if the ejectment suit was decreed, the Court should order the Plaintiffs to compensate, the Defendant for the cost of the construction. Thereafter, a number of issues were raised upon these points of dispute and although the Defendant was successful on several issues in the result the learned trial Judge held that the Plaintiffs were entitled to a decree for ejectment and consequently on May 29, 1952, the learned Additional Subordinate Judge of Purulia decreed the suit and the Defendant was ordered to deliver vacant possession of the land described in Schedule III of the plaint to the Plaintiffs within three months from the date of the decree, by removing the building and other structures on the land and in default, the Plaintiffs would be entitled to recover possession and to get the structures removed at the cost of the Defendant. From that there was an appeal heard by the Additional District Judge, Purulia. The learned Judge has dealt with the issues exhaustively and has dismissed the appeal with costs. Some of the findings may be stated here. The learned Judge has held that the story about the written agreement of lease for 30 years had not been substantiated. He did not also believe the case made out by the Defendant about an agreement for sale of the land by the Plaintiffs to the Defendant. He came to the conclusion that the Defendant did make some constructions of which the Plaintiffs were aware. He held that the Defendant was a monthly tenant and the notice to quit served upon him was valid and sufficient in law. The learned Judge observed that a suit for specific performance was barred and the Defendant was not entitled to resist ejectment under Section 53A of the Transfer of Property Act. The learned Judge also held that there was no equitable estoppel as alleged by the Defendant that could be applied in this country and that if the Defendant had made constructions, he did so with the knowledge of his rights and liabilities. In the result, the appeal was dismissed with costs.

(2.) Before us, Mr. Sen Gupta appearing on behalf of the Appellant has argued only one of the points taken in the Courts below, namely, that of estoppel. But apart from this, he has taken a point which is entirely a new one, not taken in the Courts below. This is a pure point of law and advance notice was given to the other side that the point will be agitated in Court and no objection has been taken by the Respondents. The point has been, formulated as follows: It will be remembered that the land in question was situated in Purulia. Under the Bihar arid West Bengal (Transfer of Territories) Act, 1956 (Act No. 40 of 1956) which came into operation on September I, 1956, certain territories forming a part of the State of Bihar were transferred to the State of West Bengal as and from the "appointed day", which meant November 1, 1956. The land in question in this case is situated in the transferred territory. The suit had been filed on January 3, 1949 and the judgment of the trial Court was passed on May 29, 1952 and of the first appellate Court on July 11, 1956. On September 7, 1956, a second appeal No. 1009 of 1956 was filed by the Defendant in the Patna High Court and was pending there on the appointed day. Under Section 48 of the Transfer of Territories Act, the appeal which was pending before the High Court at Patna was transferred to this Court. Under Part VII of the Transfer of Territories Act, the law then in force in the transferred territories was to continue until otherwise provided by a competent legislature or other competent authority. In 1958 was passed the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958. Under Section 3 of the Assimilation of Laws Act, all State laws which immediately before the appointed date, extended to, or were in force in, the State of West Bengal were extended to and brought into force in the transferred territories. The laws which were previously in operation in those territories but were not in operation in the State of West Bengal were repealed. The Act was to come into operation on such date as the State Government may, by notification in the Official Gazette, appoint. The State Government by notification dated June 24, 1959, appointed July 1, 1959, as the date of the coming into force of the said Assimilation of Laws Act in the transferred territories. One of the West Bengal laws which accordingly came into operation in the transferred territories is the West Bengal Non-Agricultural Tenancy Act (W.B. Act 20 of 1949) (hereinafter referred to as the Said Act, It will be necessary to deal with the provisions of the said Act in greater detail but briefly speaking, the defence taken, which is based on this Act, is as follows: It is argued that the land in question is non-agricultural land and the tenancy is, therefore, a non-agricultural tenancy coming within the mischief of the said Act. It is urged that under Section 9(c)(iii) of the said Act, a non-agricultural tenant can only be ejected on the ground that his tenancy has been terminated by the landlord after giving six months notice in writing expiring at the end of the year of the tenancy and served on the tenant in the prescribed manner. It is also provided that under such circumstances a tenant shall hoi be liable to ejectment on such grounds except on payment of such reasonable compensation as may be agreed upon between the landlord and the tenant or if they do not agree, as may be determined by the Court on the application of the landlord or such tenant. In other words, it is argued that since the tenancy is a non-agricultural tenancy it could not be determinated by a notice to quit under Section 106 of the Transfer of Property Act, that is to say, on 15 days notices, but there would have to be a six months notice together with compensation. In this case, of course, no such notice has been served and no compensation has been allowed. The first objection is that the tenancy of the Defendant had already been terminated under the law when prevailing before the said Act was made applicable to the transferred territories. Indeed, the said Act came into force on May 15, 1949, in West Bengal and on that date, the notice to quit had already become operative. Upon this question the Defendant takes the help of Section 88 of the said Act which runs as follows:

(3.) I have already mentioned that the date of commencement of this Act was May 15, 1949. On that date, the appeal was pending in the Patna High Court which has subsequently been transferred to this Court. It is argued that for this reason, namely pendency of the appeal, the Defendant is entitled to all the rights given by the said Act to a non-agricultural tenant. It is argued that although the notice to quit had become operative before the said Act came into operation, because the suit was pending on such date and the appeal was pending when the said Act was made applicable to the transferred territories, the Defendant can take advantage of Section 9 and therefore, defeat the suit for ejectment. Thus there are two points that have been taken before us. One is that the Plaintiffs were prevented by the application of the principles of equitable estoppel from ejecting the Defendant or in any event, ejecting him with compensation and secondly, no decree of ejectment could at all be passed as a result of the bar imposed by the Section 9 of the said Act read with Section 88. I will proceed to consider these points.