ANWARALI BEPARI Vs. JAMINI LAL ROY CHOUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment after service of notice to quit. The subject- matter of the litigation is C.S. plot 531 bearing khatian No. 575 of Mouza Narayangunj No. 188 in the district of Dacca. Plaintiffs case is that the defendants are mere tenants-at-will and that their tenancy has been determined by a notice to quit. The defences of the defendants are (1) that they are not tenants-at-will, but are permanent tenants, (2) that the suit is bad for defect of parties as some of their co-sharers have not been impleaded as defendants in the suit, (3) that the notices to quit were never served on them and (4) that even if they were served, they were not legally valid and sufficient as they were not served on the entire body of tenants.

(2.) The learned Munsif arrived at the following conclusions : (1) that the defendants or their predecessors had no permanent tenancy right in the disputed land, (2) that the defendants were not licensees but tenants, (3) that the tenancy was created after the Transfer of Property Act came into operation, (4) that their status was that of monthly tenants, (5) that the notice to quit was duly served, (6) that the notice was not a valid and sufficient notice as it was not served on the entire body of tenants and (7) that the suit was bad for defect of parties as all the tenants were not impleaded in the suit. On these findings, the Munsif dismissed the suit. Plaintiffs appealed to the lower Appellate Court. The learned Subordinate Judge who heard the appeal arrived at the following findings : (1) that the defendants were not licensees but tenants, (2) that their lease was for an indefinite period and must be deemed to be one from month to month, (3) that the notice to quit was duly served, (4) that the tenancy in question was not heritable, (5) that the heirs of some of the tenants who died before the service of the notice were never recognized as tenants by the plaintiffs, that they never paid any rent to them and the plaintiffs never accepted any rent from them, and (6) that the notice served on the defendants was valid in law and that the suit was not bad for defect of parties. On these findings, the learned Subordinate Judge allowed the appeal, set aside the decree of the trial Court and passed a decree for ejectment against the defendants. Hence this second appeal by the defendants. The only point for determination in this appeal as whether the notice that was served upon the defendants was a valid notice. If the finding of the learned Judge that the tenancy is not heritable is correct, then the notice which was served upon the defendants must be taken to be a valid notice and the plaintiffs suit must be decreed. The question therefore is whether the tenancy of the defendants is heritable. This tenancy was created after the Transfer of Property Act came into operation Section 105, T.P. Act, says: A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

(3.) A lease is therefore the outcome of the rightful separation of ownership and possession. The essential characteristic of a lease is that the subject is occupied and enjoyed, but the corpus of the subject does not disappear by user. Before the lease the owner had the right to enjoy possession of the land, but by the lease he excludes himself during its currency from that right. A lease is therefore not a mere contract but is a transfer of interest in land. It creates a right in rem. The duration of the lease under the Transfer of Property Act must be for a certain time, express or implied. A lease which is silent as to duration of its term would not be a lease within the meaning of Section 105, T.P. Act. The phrase "a lease of uncertain duration" occurs in Section 108(i). Leases of uncertain duration apparently are leases which are determined under Clauses (b), (c) and (h) of Section 111. Under Section 111(h) a lease is determined by a notice to quit. The notice referred to in this clause is a notice under Section 106 of the Act. The lease contemplated by this clause must therefore be a lease from year to year or from month to month.