KISHORI LAL Vs. DEBI PRASAD KEJRIWAL

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree of the Addi-tional District Judge of Bhagalpur dismissing his suit.

(2.) The plaintiff instituted the present suit for eviction of the defendants from a shop described in schedule A attached to the plaint. On 19-12-1939, defendant 1 in his capacity as karta of the joint family of the defendants, took on lease the shop for a period of three years. On 23-11-1940, the defendants came in possession of the same. On the termination of the period of the lease, the plaintiff gave on 9-11-1943, a three months' notice to defendant 1 to vacate the shop by 8-2-1944. On 4-2-1944, the plaintiff filed an application against defendant 1 before the Controller for his eviction from the shop. On 17-1-1945, the Controller allowed the application and ordered defendant 1 to vacate the shop. Defendant 1 thereafter went in appeal. The appellate Court also confirmed the order of eviction giving, however, three months' further time to the defendant to vacate the shop. On 11-4-1945, the present defendant 1 instituted Title Suit No. 52 of 1945 for a declaration that the order of the Controller was without jurisdiction as he was a trespasser and not a 'tenant' over whom the Controller could have any jurisdiction. On 19-9-1946, Title Suit No. 52 of 1945 was decreed. On 1-10-1946, the House Control Ordinance 2 of 1946 came into force. On 14-12-1946, the present plaintiff served another notice on the present defendant 1 to vacate the shop at once. On 31-12-1946, Babu Debi Prasad Kejriwal sent a reply to the above notice. On 29-1-1947, the decree passed in the Title Suit No. 52 of 1945 was affirmed on appeal. On 15-3-1947, the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) came into force. On that very date the present suit was filed by the plaintiff for eviction of the defendants. The suit was Ultimately dismissed on 8-4-1948. The plaintiff thereafter filed the present First Appeal No. 201 of 1948. At the time of the hearing of this first appeal two contrary decisions of two Division Benches of this Court in -- 'Shiveshwar v. Parmeshwar', AIR 1949 Pat 355 (A) and --'Sm. Sant Kuer v. Ganesh Choudhary', AIR 1949 Pat 137 (B) were cited on behalf of the parties. In both those cases the suit for eject-ment had been instituted prior even to the promulgation of Bihar Buildings Control Ordinance 2 of 1946. In AIR 1949 Pat 355 (A) it was held that the provisions of the Bihar Buildings Control Ordinance 2 of 1946 and the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, were not retrospective, while in AIR 1949 Pat 137 (B) it was held that they had a retrospective effect, and Section 11 of the Act was a bar to the passing of any decree for eviction of a tenant. Their Lordships Sinha and Mahabir Prasad JJ. who had originally heard the first appeal, referred the following two questions for decision of a larger Bench :

(3.) Mr. B. C. De, learned Counsel for the appellant, urged before us that the following definition of 'tenant' given in Section 2(h) of the Bihar Act 3 of 1947 cannot confer any benefit on the defendants : " 'tenant' means any person by whom or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour." Mr. De further contended that as the present defendant 1 had, before the filing of the present suit, asserted that he was a mere tres-passer, he cannot be permitted to claim in this suit the status of a tenant within, the meaning of Section 2(h) of the Bihar Act 3 of 1947. Accord-ing to him, this definition will confer right only on those who cease to be tenants after this Act came into force but still continue in possession of the property leased. He urged that as neither of the Bihar Ordinance 2 of 1946 nor the Bihar Act 3 of 1947 was in force when the cause of action against the defendants had arisen, they cannot take shelter under the provisions of the Bihar Act 3 of 1947. In support of his contention Mr. De relied on the following passage in the judgment of Mano-har Lall J. in AIR 1949 Pat 355 (A):