SHAMBHU CHANDRA HALDAR Vs. KANAI LAL GOSWAMI

JUDGEMENT

(1.) In the suit out of which the present appeal arises the plaintiffs sued the defendant for ejectment from a certain plot of land. It was decided by both the Courts below that the defendant had been properly and legally ejected and it was decided that the plaintiffs should get khas possession of the land in suit subject to the payment to the defendant of the sum of Rs. 700 as compensation for the cost of the materials of the structures which had been erected by the defendant on the suit land.

(2.) The first point urged by the learned advocate for the appellant in this case is that the defendant has not been validly ejected owing to the fact that, according to the terms of the notice, whatever the plaintiffs rights may have been under the terms of the kabuliyat they had nevertheless undertaken not to eject the defendant until they had compensated the latter for the cost of the materials of the structures in the suit land. It was therefore contended that they had waived their right to eject the defendant until such compensation had been paid or at any rate tendered to the defendant. The kabuliyat appears to have created a monthly tenancy in favour of the defendant and, according to its terms the defendant was entitled to hold the demised land from month to month on payment of rent at the rate of Rs. 7-8-0 per mensem, but it was agreed that the defendant would, upon the receipt of a proper notice, vacate the demised land and thereupon the plaintiffs would be required to pay him compensation in respect of the materials of the structures which he had erected on the land according to the condition at the time of ejectment. The notice Ex. 4, which was served upon the defendant required him to vacate the demised land in accordance with the terms of the kabuliyat on or before the last day of the month of Aswin 1337. The notice then goes on to say: You are also further informed that if, according to the terms of the kabuliyat, you will take from us the present day price of the materials bricks, wood of the structures etc., erected by you then, after receipt of such price, from us you will give up possession of the land with the structures, etc.

(3.) It is argued by the learned advocate for the appellant that inasmuch as the price of the materials had not even been tendered to the defendant, the notice, Ex. 4, became ineffective. It is urged on the other hand by the learned advocate for the respondent that the clause in the notice with regard to the payment of compensation money should be regarded as a surplusage and should not be deemed to be a waiver on the part of the plaintiffs of their right to eject the defendant at the end of Aswin 1337.