MAHASUKRAI RAMRICHPAL Vs. KISHORI CHARAN LAW

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the learned Additional District Judge, 12th Court at Alipore in Title Appeal No. 1038 of 1970 dated 30th April 1971 affirming those of the learned Subordinate Judge, 6th Court at Alipore in Title Suit No. 67 of 1963 passed on 19th June 1970. The facts of the case may briefly be stated as follows :-- The respondent filed a suit for ejectment and mesne profits against the defendant, who was a monthly tenant at a rent of Rs. 400/- payable according to the English calendar month. According to the terms of the tenancy, the defendant was not to make any addition or alteration to the premises without the consent of the plaintiff in writing. The plaintiff was informed that the defendant has constructed a pucca temple and two sheds with pucca walls etc. with C. I. roof on the suit premises. These structures are of permanent nature and have been illegally made without the knowledge and consent of the plaintiff. Thus the defendant has acted contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment.

(2.) The defence is that the structures in question were made in the year 1958 and in the first part of 1359 with the knowledge and consent of the plaintiff. The defendant also challenges the legality and validity of the notice of ejectment. Both the Courts below found that the notice of ejectment was legal and valid and the defendant violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment Being aggrieved, the defendant has preferred the present appeal.

(3.) Mr. Guruprasad Ghosh, learned Advocate appearing on behalf of the appellant takes several points, most of which were not taken in the Courts below. In the first place, Mr. Ghosh contends as no notice of forfeiture was given by the landlord to the defendant according to the provisions of the Transfer of Property Act the suit is not maintainable. Mr. Ghosh submits that in the present case the lease was for five years which was to expire on 1-5-1958. But after the expiry of the lease, the defendant continued in possession with the consent of the plaintiff on payment of rent and thereby became a monthly tenant by holding over. But in such a case if the plaintiff wants to evict the defendant on the ground that he has violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the landlord is required to serve a notice upon the defendant according to the provisions of Section 114-A of the Act. This section provides that "Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach.....".