SHANGSER ALI Vs. SHEIKH HADANULLA

JUDGEMENT

(1.) THE question, which arises in this appeal, is one of some little difficulty inasmuch as at first sight various rulings of this Court on the subject appear to give rise to a certain amount of conflict. But we think that the decision in the case of Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 lays down the law in clear and unmistakable terms, and as we shall presently show, it has not really been dissented from. On the contrary, it has been followed and affirmed in every respect by the very learned Judge whose rulings in other cases have been cited to us as in conflict with it. THE rule laid down is perfectly clear. It is a rule laid down under Section 49 of the Bengal Tenancy Act and it cannot be distinguished by the fact that the lease in that case was entered into before the Tenancy Act was passed. A question of ejectment arose under Section 49 of the Bengal Tenancy Act and the question was whether an under-raiyat can be ejected under that section; and what the Judges say is this: "Under Section 49 of the Bengal Tenancy Act, an under raiyat can be ejected on the ground of the expiration of the time of a written lease--or by notice to quit, if he holds otherwise than under a written lease. But if he holds under a written lease for an indefinite time, his raiyat lessor cannot eject him arbitrarily. He can only do so for non-payment of the rent." Now in Tamijuddi v. Asgan Howldar 36 C. 256; 13 C.W.N. 183; 1 Ind. Cas. 942 Mr. Justice Mitra, whose decisions to which we have presently to refer are said to be against this rule, says as follows: THE case of Gopal Mondal v. Eshar Chunder Banerjee 29 C. 148 lays down that a sub-lease granted by a raiyat in contravention of the provision of Section 85 of the Bengal Tenancy Act is void against the landlord only and not against the raiyat or any person claiming through the raiyat. To the same effect is the decision of this Court in the case of Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 which we have just cited from VI Calcutta Weekly Notes. THE learned Judges say in the last cited case that when an under- raiyat holds under a written lease for an indefinite time (and in the present case the lease is also for an indefinite time), the raiyat is not entitled to eject him by giving him notice under Section 49(6) and the words sub-lease shall not be valid in Section 85(3) mean that the sub-lease shall not be valid against the landlord. This is a considered decision sitting with another Judge delivered five years later than the decisions on which the plaintiffs-appellants in this case rely. Those decisions are contained in VIII Calcutta Weekly Notes, at pages 136 and 139. THE first of them, the case of Komaraddi v. Sreenath Chowdhury 8 C.W.N.136 was heard by Maclean, C.J., and Mitra, J., and the judgment, which is a very short one and which is reported without any statement of the facts or the arguments before the Court, at first sight appears to be in direct conflict with the case in VI Calcutta Weekly Notes, which was followed by Mr. Justice Mitra as we have seen in XIII Calcutta Weekly Notes. But we must hold that there could have been no such conflict in the minds of the learned Judges, inasmuch as no reference whatever is made to the previous decisions on the subject; and the first point which is laid down by the learned Chief Justice in that case is that it was finally decided in the Courts below as a question of fact that the appellant was an under-raiyat. He then goes on to say that the defendants were holding under a written lease, but in that written lease nothing is said as to the duration of the time of the tenancy, and in his opinion, the words "written lease" under Section 49(b) mean a special written lease as is mentioned in Sub-section (a), that is, a written lease defining the term of tenancy. But it is not clear that this written lease was not excluded from evidence and that the plaintiff was not allowed to prove the tenancy aliunde. THE other two cases one at page 138 of the same Volume and one at page 139 were heard before Mitra, J., sitting alone. In the case of Mohendra Nath Sapai v. Parbutty Charan Dass 8 C.W.N. 136 he clearly held that the case was one of a lease from year to year, and he distinguished the case of Madan Chandra Kapali 6 C.W.N. 377, which he subsequently cited with approval and followed on the ground that the lease in that; case had been executed before the commencement of the Bengal Tenancy Act and that he did not know what the exact terms of the lease were. But as we have seen, the lease in the case before him was from year to year, whereas the lease in the case before us is like that in the case of Madan Chandra Kapali 6 C.W.N. 377, a lease for a wholly indefinite period. THE same remarks apply to the judgment in Idu Gazi Doctor v. Chandra Kali Sundrani 8 C.W.N. 139. THEre again he holds that it is an ordinary lease from year to year. THErefore, it is not a lease for a term and the defendant can be ejected under Clause (6) of Section 49 of the Bengal Tenancy Act. We are not concerned to say whether in our opinion these decisions are in accordance with law or not, but they can clearly be distinguished from the decisions upon which we rely and which we have already cited.

(2.) FOLLOWING these decisions, we are bound to hold that the raiyat plaintiff is not entitled to eject the under-raiyat by giving him notice under Section 49(b). He can only be ejected for non-payment of rent. The Subordinate Judge, therefore, in the Court below appears to have come to a correct decision and the appeal must be dismissed with costs.