RAJENDRA NATH SARMA Vs. PELLANT RAMDHIN RAJBHOR

JUDGEMENT

(1.) THIS second appeal is by the Defendant against the decree of the learned Subordinate Judge, L.A.D. Gauhati, reversing to earlier decree of the learned Munsiff.

(2.) THE Plaintiffs case is that he is the owner of the land mentioned in the schedule measuring 1 Bigha 8 Lechas of dag No. 44/557 Annual Patta standing in his name The Plaintiff had his houses on the land and/the Defendant occupied one thatched house on a monthly rent of Rs. 5/ -since December, 1954. This house was burnt 1956 and thereafter the Defendant in spite of protests from the Plaintiff, forcibly constructed his house there and has Den in wrongful occupation of the land There was some dispute regarding the annual patta between the Plaintiff and the Defendant. But the matter was finally settled by an order of the Revenue Board on 5th August, 1963, holding that the plain -tiff's patta was in force. The Defendant was trying to make further constructions on the land in spite of protests from the Plaintiff and hence this suit for khas possession of the land by "removal of the temporary houses of the Defendant."

(3.) THE only point which is urged by the learned Counsel for the Appellant is that since the Defendant was a tenant the suit is liable for dismissal in absence of a notice under Section 106 of the Transfer of Property Act. It is admitted that no notice has been served on the Defendant. The learned Counsel for the Respondent submits that since the house which had been let out to the Defendant was destroyed by fire, the lease came to an end and the Defendant, after that, was only continuing as a trespasser and hence no notice under Section 106 of the Transfer of Properly Act is necessary. He invokes the provisions of Section 56 of the Indian Contract Act, in support of his submission.