S K KOCHI Vs. GOVIDA CHANDRA BHATTACHAEYA

JUDGEMENT

(1.) This Rule is directed against an order, passed by the First Additional Subordinate Judge, 24-Parganas, in Miscellaneous Appeals No. 730 and 7C5 of 1954. These two appeals arose out of Miscellaneous Case No. 102 of 1954, instituted before the Munsif, First Court, Alipore, in his capacity, as Controller, appointed under the Calcutta Thika Tenancy Act, 1949, for ejectment of a thika tenant under Section 5 of the said Act. The Petitioner before us was the tenant and the opposite party the landlord who had filed the said application for ejectment of the Petitioner from two holding, bearing Nos. 153 and 154, within the Garden Reach Municipality. Ejectment was allowed by the Controller on three grounds, namely, (1) that the tenant has broken a condition, on breach whereof he was, under the terms of the contact, liable to be ejected (vide Section 3(ii)), (2) that he had failed to use or occupy a major part of the holdings for his own residential purpose for more than six consecutive months (vide Section 3(v)) and (3) that he had failed to pay arrears of rent due to the landlord (vide Section 3(i)). Both the parties appealed against this order of the Thika Controller and the appellate court decreed ejectment only on the first ground on the finding that the tenant had cut down certain trees in violation of a covenant in his lease and had thereby incurred forfeiture.

(2.) Against the said judgment, the tenant moved this Court in revision and obtained Civil Rule No. 689 of 1955 and therein this Court held inter alia that the tenant had incurred forfeiture by cutting down the trees and was liable to eviction under Section 3(ii) of the Calcutta Thika. Tenancy Act, 1949, unless he could establish a case of waiver of the forfeiture under Section 112 of the Transfer of Property Act, and remanded the appeals to the lower appellate court for a decision on two questions, namely, (i) whether or not the landlord had waived the forfeiture under the said section and (ii) whether or not the tenant had failed to pay arrear of rent due in respect of his holding and was liable to ejectment under Section 3(i) of the Calcutta Thika Tenancy Act, 1949.

(3.) The appeals were thereupon reheard, the parties having adduced additional evidence according to the terms of the order of remand. At this rehearing, the landlord did not press his claim for ejectment of the tenant from holding No. 153 and confined his claim to holding No. 154 alone. The learned First Additional Subordinate Judge, Alipore, who heard the appeals on this occasion, came to the finding that there had been no waiver of forfeiture on the part of the landlord under Section 112 of the Transfer of Property Act and that the tenant was liable to ejectment on the ground of forfeiture under Section 3(M) of the Calcutta Thika Tenancy Act. He further held that the tenant had failed to pay arrears of rent due to the landlord and was liable to ejectment on that ground also under Section 3(i) of the said Act. He directed the tenant to pay Us. 102 on account of arrears of rent plus interest Rs. 52 and damages Rs. 329-8 within thirty days from the date of his order and directed that, in default of such payment, the decree for ejectment under Section 3(i) would be executable. The Thika Controller had directed the landlord to pay compensation to the tenant before executing the decree for ejectment, but this part of the order was set aside by the learned Additional Subordinate Judge as he rejected the landlord's claim for ejectment under Section 3(v). It is against the above order which has passed on 10th January, 195G, that the present Rule has been obtained by the tenant.