ALI MAHAMMAD MALLICK Vs. SHAIKH GOLAM RAHAMAN

JUDGEMENT

(1.) This second appeal arises out of a title appeal allowed by a Subordinate Judge, Hoogly setting aside the judgment and decree passed in favour of the plaintiff who is the appellant before us. The scope of this second appeal before us is very limited as it now appears. The relevant fact briefly stated is that the plaintiff Ali Mahammad filed a suit for recovery of khas possession of the suit property, namely, a piece of land, area about 2 1/2 cottahs of which the defendant Sk. Golam Rahaman was a non-agricultural tenant. The case of the plaintiff is that the defendant took oral lease from his father and the defendant made construction encroaching upon his land after the death of his father. He wanted to evict the defendant, but ultimately it was agreed that the defendant would take lease of the 2 cottahs of land previously held under his father and the plaintiff would grant that lease including the 1/2 cottahs of land with the structure made by the defendant. The deed of lease was signed by both the parties and it was meant for a period of 8 years starting from Magh. 1344 B. S., it was executed on 16th Nov., 1946. The case of the plaintiff is that after the expiry of the period of 8 years by efflux of time, the lease terminated and he was entitled to recover khas possession of the suit land. The defendant appeared and contested the suit by filing a written statement. His case is that the plaintiff by giving a fresh lease allowed the right of the defendant in the matter of construction of a pucca structure which he set up previously before the lease and also during the subsistence of the lease he made a pucca structure. His main defence is that under section 7(5) of the West Bengal Non-Agricultural Tenancy Act, 1949 he is entitled to get protection against eviction because he has made pucca constructions on the suit land. The learned Munsif decreed the suit and against that decision, in the appeal the learned Additional Subordinate Judge, Hoogly, set aside the judgment and the decree and allowed the appeal by dismissing the suit of the plaintiff appellant. According to the learned Subordinate Judge the defendant is entitled to get protection.

(2.) Only one relevant question of law is required to be considered by us in the appeal as has been placed before us. The point is whether in the facts and circumstances of the present case the protection under section 7(5) of the West Bengal Non-Agricultural Tenancy Act can be availed of by the defendant. Mr. Mukherjee, the learned Advocate appearing on behalf of the plaintiff-appellant submits that according to the finding of the appellate court, the construction in question was made by the defendant prior to the taking of lease from the plaintiff in the year 1946 and therefore, the defendant cannot take a shelter under section 7(5) of the Act because according to Mr. Mukherjee that section speaks about construction of a pucca structure during the subsistence of the lease and before the expiry of the same. Mr. Bhattacharjee appearing on behalf of the defendant respondent submits as against Mr. Mukherjee that there is nothing in section 7(5) of the Non-Agricultural Tenancy Act to indicate that the construction must be made during the subsistence of the lease and his further argument is that in the deed itself when the plaintiff as landlord accepted the pucca construction of the suit land and allowed the same to continue and to be enjoyed by the defendant certainly that will be taken as construction of the structure as required under section 7(5) of the Act.

(3.) Now let us consider, first of all, the section 7(5) of the West Bengal Non-Agricultural Tenancy Act. According to the sub-section (5) the defendant will get protection if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period stipulated therein and if that structure be erected before the expiry of the said period of lease. The evidence in this case proves that the plaintiff and the defendant both executed a deed of lease on 16th Nov., 1946 in respect of the suit land measuring about 2 1/2 cottahs at a rental of Rs. 5.00 per year. It is stated in the deed, Ext. I, that the defendant would be entitled to live in the structure made by brick walls and tiled roof and he had further the right to erect such constructions on the land in question. It has been proved, and there can be no doubt, that the structure in question was pucca structure. The deed clearly says that the landlord accepted the right of the tenant defendant in the pucca structure already constructed prior to the execution of the lease deed and the tenant was further given the right to make such pucca structures during the subsistence of the lease. Now the question is whether this statement in the deed will give protection to the tenant under section 7(5) of the Non-Agricultural Tenancy Act. As we have already noticed that sub-section (5) says that if the landlord has allowed pucca structures to be erected held under the lease in writing for a specified period and if the construction is made before the expiry of the said period, the tenant will get protection against eviction under certain circumstances. There can be no doubt that in the instant case the plaintiff landlord allowed by the deed itself the pucca structure already constructed by the defendant on the suit land, and there can be no doubt also that the pucca structure was constructed before the expiry of the period of lease. There is no restrictive clause in the section that unless the tenant makes construction during the subsistence of the lease, he will not get protection against eviction. The language of the section is quite clear that the construction must have to be made before the expiry of the period of lease. Here the evidence shows that the pucca structure on the suit land was constructed before the expiry of the lease and before the grant of lease even. The evidence further shows that the landlord allowed such pucca structure as constructed by the defendant. In this view of the matter, the defendant is entitled to get protection against eviction when the plaintiff allowed pucca structures to be erected before the expiry of the term of lease.