RAMBARAN PASWAN Vs. KALO DEI

JUDGEMENT

(1.) Leave to appeal under Clause 10 of the Letters Patent having been granted by a learned single Judge of this Court, this appeal is directed against the judgment and decree passed by him in Second Appeal No. 413 of 1966. The defendant tenant who is the appellant here was also the appellant in the second appeal aforesaid.

(2.) The plaintiffs-landlords instituted a suit for eviction against the defendant who was the predecessor-in-interest being the father of the present appellant and who died during the pendency of the second appeal before this Court. The subject-matter of the suit was a small house within the Mokameh Notified Area Committee, with regard to which the plaintiffs-respondents claimed to be the owners and landlords. Their further case was that they had let out the house in question to the appellant's father, the original tenant, on a monthly rental of Rs. 3/- and that he having made a default in payment of two consecutive months' rent and the plaintiffs having required the house in question for their own, personal necessity, a decree should be passed against the defendant. It was further pleaded in paragraph 8 of the plaint that notice determining the tenancy was sent to the defendant on the 27th November, 1961 but the defendant not being inclined to comply with the terms of the notice, the plaintiffs were compelled to institute this suit. Shorn of all details, the main defence, inter alia, was that the suit was not maintainable in view of the non-compliance with the mandatory provisions of Section 106 of the Transfer of Property Act. 1882 (hereinafter to be referred to as the Act), since the time stipulated in the notice (Ext. A) fell short of the time prescribed for such notice determining the tenancy under the provisions of the said Act.

(3.) The plaintiffs failed before the trial Court mainly on merits. But in appeal before the first appellate Court as well as in the second appeal in this Court before the learned Single Judge, the plaintiffs succeeded and the suit for eviction against the appellant's father and the appellant, respectively, was decreed. In course of the hearing of the second appeal, when the point with regard to the illegality and invalidity of the notice under Section 106 of the Act was raised on behalf of the appellant, the same was repelled by the learned single Judge on the ground that the appellant had denied the relationship of landlord and tenant in his defence in the written statement filed in the suit as well at in his reply to the notice sent to him by the plaintiffs, which reply was Ext. 4, and it was not open to the appellant to raise the plea of illegality of notice, as contemplated by Section 106 of the Act. In so deciding the point against the appellant, the learned, single Judge relied upon a Division Bench decision of this Court in Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156.