DASARATHI KUMAR Vs. SARAT CHANDRA GHOSE

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff and arises in a suit in ejectment. The only question which has been debated before us is the question as to the necessity and sufficiency of the notice to quit. It appears that the defendant was holding under two leases which he had obtained from Raja Peary Mohan Mukherjee on 7 Aswin 1320 B. S., in respect of two different plots. The leases were for a term of nine years and they expired on 16 September 1922 corresponding to the end of Bhadra 1329 B. S. The case made by the defendant is that he held over after the expiry of the leases. The plaintiff, it appears, subsequently got an intermediate lease from the Raja on 27 Pous 1331 corresponding on 11 January 1925. After obtaining the said lease the plaintiff issued a notice to quit on the defendant and that was served on 9 April 1925. The notice required the defendant to quit on 30 Aswin corresponding to 16 October 1925. The suit in ejectment was commenced on 1 March 1926. The defendant raised various contentions and amongst others he questioned the sufficiency of the notice. The trial Court negatived all the contentions of the defendant; on the question of sufficiency of notice it held in favour of the defendant and was of opinion that the notice was insufficient but that no notice was necessary. The defendant appealed to the District Judge who affirmed the findings of the Subordinate Judge but came to the conclusion that the notice was necessary and that it was insufficient. He accordingly dismissed the suit of the plaintiff.

(2.) Against this decision the present appeal has been brought and it has been contended before us that as the holding over must be taken to be on the same terms as the original lease and as the original lease contained a clause to the effect that the defendant was to be ejected without service of new notice to quit that clause must be imported into the new contract of tenancy which was created by the landlord's acceptance of rent after the expiry of the term mentioned in the original lease. It is argued that this term, namely the liability of being ejected without notice, must be held to be "a contract to the contrary" within the meaning of Section 106 and Section 116, T. P. Act. The matter is really governed by the provisions of Section 116, T. P. Act. That section runs as follows: If a lessee or under-lessee of property remain in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his continuing in possession, the lease is in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in section one hundred and six.

(3.) It is conceded that in this case the tenancy is for manufacturing purposes and therefore it is a tenancy from year to year. There can be no question that the words in the section "in the absence of an agreement to the contrary" must refer to an agreement as to the terms of holding over. This point was decided so far back as in the year 1904 by Sir Francis Maclean, C.J., Bodilly, J., and Mookerjee, J., in the case of Troilakya Nath Roy V/s. Sarat Ghandra (1905) 32 Cal 123. The Chief Justice in delivering the judgment of the Court pointed out that the words "in the absence of an agreement to the contrary" in Section 116 must mean an agreement as to the terms of the holding over renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in Section 106. In our opinion as soon as the rent was accepted it was a new contract of the tenancy and that it was a contract of tenancy from year to year according to the purposes for which tenancy was taken. That being so we are of opinion that the District Judge took a correct view of the case. The appeal is dismissed with costs. M.C. Ghose, J.