BINAPANI DASSI Vs. JOGENDRA NATH PATRA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of S.K. Sen, J. in Second Appeal No. 859/52. The appeal involves an important question of law and further there is some conflict of decision so far as this Court is concerned. The Plaintiff granted a lease to the Defendant for a period of nine years. After the expiry of that period the Plaintiff instituted the proceeding for ejectment. The terms of the said lease were that the tenant would use the structures therein and would not remove any of them. He would use the land for the purpose of manufacturing pantiles and bricks, he would also be entitled to reside therein and get the fruits of all trees, but would not be able to cut them. It is not disputed that the interest of the Plaintiff was recorded as an occupancy raiyat. It is further not disputed that the lease was granted mainly and substantially for the purpose of manufacturing pantiles and bricks. The tenant filed a written statement saying that he was protected. According to the tenant, if the tenancy is one governed by the Bengal Tenancy Act, he is protected by the proviso (ii), Sec. 48(c) of the Bengal Tenancy Act and if the tenancy was governed by the Transfer of Property Act the defence was that no notice to quit was served upon him.

(2.) The trial Court held if the tenancy was governed by Bengal Tenancy Act, the tenant would not be protected by the aforesaid proviso because the tenant was never admitted in the documents by the landlord to have permanent right nor had he been in possession of the property for more than 12 years, nor the tenant had a homestead therein. According to the trial Court, the tenant had homestead in the village Kalipur where he resided and if he resided in the property in suit, it was not his homestead as he used it not for the purpose of agriculture but for the purpose of business. Considering proviso (ii) the trial Court found that the Plaintiff landlord required the property for his own use. The suit was decreed by the, trial Court.

(3.) The appeal Court agreed with the trial Court that the Defendant was not entitled to any protection in view of proviso (ii), Sec. 48(c). The Defendant further raised a plea that the landlord had no title. The appeal Court overruled that plea on the ground of estoppel of a tenant and the appeal was dismissed. Thereafter, there was a Second Appeal to this Court. S.K. Sen, J. held that (sic) should not by any stretch of imagination be regarded (sic) of the Defendant. But with regard to proviso (ii) (sic) agreed with the learned Advocate for the tenant protected the tenant. (sic) protected the tenant Sen, J. was of opinion that the (sic) intended for the protection of bona fide agriculturists and it appeared to his Lordship to be an abuse of the law that the Defendant should claim protection under that proviso as he was not an agriculturist at all and his Lordship held that the Plaintiff was not entitled to obtain ejectment in the absence of evidence establishing that she required the land for her use as her own homestead and for her own cultivation which evidence was, according to his Lordship, lacking in the present ease. But his Lordship finally held that the tenancy would not be governed by the Bengal Tenancy Act but would rather be governed by the Transfer of Property Act. His Lordship then considered that the 'kabuliat' was not a bilateral document and therefore, was not a lease within the meaning of Sec. 107 of the Transfer of Property Act. Hence, the Defendant must be considered to be a tenant not for a term but from month to month and no notice to quit being served upon the Defendant the suit was not maintainable. On these findings the appeal was allowed, the suit was dismissed and the judgments and decrees of the Courts below were reversed. Against that decision there has been the present appeal under Clause 15 of the Letters Patent.