ABDUS SATTAR Vs. SURESH CHANDRA DAS

JUDGEMENT

(1.) The this appeal a question of law of public importance is involved in that whether a monthly tenancy created under the provision of section 106 of the Transfer of Property Act is heritable upon the death of the tenant. The other question of law involved will be dealt with at its appropriate place.

(2.) Facts, in brief, are that the appellants as plaintiff landlords instituted a Small Cause Courts suit for ejectment of Respondents. Their case for ejectment is that Balaram, father of Respondents, was a monthly tenant at the premises in 1968 and from April, 1969, Suresh, the first Respondent took the tenancy in his name, and he having defaulted in payment of rent was liable to ejectment. The second Respondent, brother of Suresh, was added as a party to the suit on the objection of Respondent as he was also residing in the premises and was said to be in permissive possession. Plaintiffs asserted that both were liable to ejectment. The defence, in substance, apart from other grounds not relevant for this appeal, was that the tenancy was in favour of Balaram, and on his death it has devolved upon both the respondents as his heirs and so the notice to quit u/s. 106 of the first Respondent was insufficient.

(3.) The trial Court on consideration of evidence, both oral and documentary, accepted the plaint case that Balaram was the first tenant, thereafter from 1969 first Respondent became tenant as evidenced by Ext. 3 series and he did not make payment after October, 1969 and was a defaulter. The second Respondent was in possession as the brother of Suresh but not as a tenant. He, therefore, decreed the suit for ejectment. On revision by the Respondents, the learned Single Judge of the High Court Division reversed the findings of the trial Court, and held that the tenancy was only in favour of Balaram and on his death it devolved on his sons, the Respondents and so the notice to quit on Suresh was insufficient. He made the rule absolute and set aside the decree of the trial Court.