Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Renupada Mukherjee, J.
Acts
  • clause (1) of Sec. 3 of the Calcutta Thika Tenancy Act, (ii)
  • clause 4(b) of the Calcutta Thika Tenancy Act.
  • section 5 of the Calcutta Thika Tenancy Act
  • section 3 of the Calcutta Thika Tenancy Act.
  • Sec. 3(v) of the Calcutta Thika Tenancy Act.
  • Sec. 4(b) of the Calcutta Thika Tenancy Act.
  • ARTICLE 227 CONSTITUTION OF INDIA
  • Sec. 3 of the Calcutta Thika Tenancy Act
  • Sec. 106 of the Transfer of Property Act
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Renupada Mukherjee, J.
Acts
  • clause (1) of Sec. 3 of the Calcutta Thika Tenancy Act, (ii)
  • clause 4(b) of the Calcutta Thika Tenancy Act.
  • section 5 of the Calcutta Thika Tenancy Act
  • section 3 of the Calcutta Thika Tenancy Act.
  • Sec. 3(v) of the Calcutta Thika Tenancy Act.
  • Sec. 4(b) of the Calcutta Thika Tenancy Act.
  • ARTICLE 227 CONSTITUTION OF INDIA
  • Sec. 3 of the Calcutta Thika Tenancy Act
  • Sec. 106 of the Transfer of Property Act
See more information ...
Smart Summary

Judgment Summary: Renupada Mukherjee, J. — Civil Revision under Article 227

Factual and Procedural Background

This is a Civil Revision under Article 227 of the Constitution of India arising from ejectment proceedings under the Calcutta Thika Tenancy Act. The petitioner, Tirtha Nath Ghose, held two thika tenancies from the opposite party (a shebait of two deities): premises No. 53/2 and No. 53/3, Shalimar Road, Howrah. The landlord instituted two ejectment proceedings under section 5 of the Calcutta Thika Tenancy Act, relying on grounds in section 3 (clauses (i), (iv) and (v)). Both applications were allowed on contest by the Munsif, 2nd Court, Howrah, sitting as Controller. The tenant appealed; the appeals were dismissed by the Subordinate Judge. The petitioner obtained the present Rule in this Court challenging that portion of the appellate order that related to holding No. 53/2 (the opinion does not concern the other holding).

Premises No. 53/2 measures about three cottas, with the tenant having erected structures containing ten rooms. The landlord sought ejectment on grounds that the tenant was a defaulter (clause (i) / clause (1) of section 3), that the landlord required the land for building and development (clause (iv)), and that the tenant failed to occupy the holding for his own purposes for more than six consecutive months (clause (v)). The Controller and the Appellate Court upheld the landlord's claims; the High Court's supervisory jurisdiction under Art. 227 is now invoked by the tenant.

Legal Issues Presented

  1. Whether the tenancy was a tenancy from year to year (terminable by six months' notice under Section 106, Transfer of Property Act) or a monthly tenancy (terminable by three months' notice under Section 4(b) of the Calcutta Thika Tenancy Act), and whether the notice of ejectment was therefore valid.
  2. Whether, if the tenancy was monthly, the month of the tenancy began on the 19th (date of lease execution) thereby rendering the notice invalid for failure to give the correct expiry date for three months' notice.
  3. Whether the landlord satisfied the requirement of demonstrating a genuine need to take the land into khas possession for purposes of building and development (clause (iv) of section 3).
  4. Whether clause (v) of section 3 (failure to occupy the major part of the holding for six consecutive months) applies to structures built on the holding or only to the bare land, and whether ejectment under clause (v) was justified.
  5. Whether the proviso to clause (v) entitled the tenant to be deemed a tenant in respect of the single room occupied by him.
  6. Whether the lease required the landlord to make an offer of payment of compensation before instituting ejectment proceedings (i.e., whether such an offer was a condition precedent).

Arguments of the Parties

Petitioner's (Tenant's) Arguments — as presented by Mr. Bagchi

  • The tenancy was a tenancy from year to year; therefore Section 106 of the Transfer of Property Act applied and the tenancy could be determined only by six months' notice ending at the year-end (contrary to the three months' notice given under Section 4(b) of the Calcutta Thika Tenancy Act).
  • If the tenancy were monthly, the month began on 19th Sravan (date of lease execution) and therefore a three months' notice should have expired on the 18th of Aswin rather than the end of that month; reliance was placed on Surjya Kumar Mukherjee v. Trilochan Nath (59 C.W.N. 526).
  • The landlord had not shown a genuine need to take the land into khas possession for building/development as required by clause (iv) of section 3 (relying on Nagendra Nath Gupta v. Mohit Kumari Pandit (59 C.W.N. 984)).
  • Clause (v) refers to the "holding" (land) and not to "structures"; therefore failure to occupy structures should not amount to failure to occupy the holding.
  • Under the proviso to clause (v), at least the room actually occupied by the petitioner should be deemed his tenancy.
  • According to the lease, the landlord should have made an offer of compensation before instituting ejectment proceedings; such an offer was a condition precedent.

Respondent's (Landlord's) Position — as reflected in the record and the Controller/Appellate Court findings

  • The lease and the pleadings stated that the tenancy ran according to the Bengali calendar month (1st to last day), and rent payments (dakhilas) showed payments on an annual basis counting the year from 1st Baisakh to Chaitra — indicating that the tenancy was monthly running by Bengali calendar month.
  • The landlord asserted a need to take the land into khas possession for building and development and pleaded this ground under clause (iv) of section 3; the Controller and Appellate Court accepted that evidence (albeit meagre) was sufficient to establish need.
  • The landlord relied on clause (v) to show the tenant had failed to occupy the major portion of the holding/structures (only one of ten rooms occupied), and sought ejectment on that basis as well.
  • The Controller ordered assessment of compensation under clause 4(b) of the Calcutta Thika Tenancy Act; ejectment would be enforced only after compensation is assessed and paid.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Surjya Kumar Mukherjee v. Trilochan Nath (59 C.W.N. 526) Cited by the petitioner to support the proposition that where lease execution date suggests a non-calendar commencement, the month of tenancy may run from that date (affecting the validity of notice). The court distinguished this precedent on facts: the landlord's pleadings expressly averred the tenancy ran by Bengali calendar month (an admission not denied by tenant) and rent payments corroborated that; therefore the precedent did not invalidate the notice in this case.
Nagendra Nath Gupta v. Sm. Mohit Kumari Pandit (59 C.W.N. 984) Cited by the petitioner for the principle that a landlord must establish a real element of need to take land into khas possession for building/development under clause (iv) of section 3. The court acknowledged the legal principle but found that, on the evidence before the Controller and the Appellate Court (though meagre), a sufficient element of need had been demonstrated; the court declined to interfere under Art. 227.
Udaytara Saha v. Habibar Rahaman (42 C.W.N. 771) Authority cited for the proposition that a lease may create a tenancy that runs according to the calendar year/month irrespective of the date of execution of the lease. The court relied on this authority to support its conclusion that, despite the lease being executed on 19th Sravan, the parties treated the tenancy as running according to the Bengali calendar month/year, as evidenced by rent payments.

Court's Reasoning and Analysis

The court proceeded in a sequential manner, addressing the core procedural and substantive challenges advanced by the petitioner:

  1. Tenancy classification and validity of notice:
    • The executed lease (produced before the Controller) showed a lease of bagat lands for residence by erecting non-permanent structures for an indefinite period, with an annual rent reserved but payable in two instalments (Aswin and Chaitra).
    • The court held that such a lease for residential purposes is terminable as a monthly tenancy (citing Section 106, Transfer of Property Act) and also terminable by three months' notice under Section 4(b) of the Calcutta Thika Tenancy Act. The tenancy was therefore not a tenancy from year to year.
    • The tenant's argument that the month ran from the 19th (date of lease execution) was rejected because the landlord had expressly pleaded the tenancy ran according to the Bengali calendar month (1st to last day), and this averment was not denied in the tenant's written statement — an admitted fact that required no proof. Further, repeated rent receipts (dakhilas) showed rent was paid on an annual basis counting the Bengali calendar year, consistent with a calendar-month tenancy. Consequently, the three months' notice given was valid.
  2. Ground (iv) — requirement of land for building and development:
    • The petitioner argued that the landlord had not established a genuine need to take the land into khas possession. The court accepted that clause (iv) requires proof of need, but found the Appellate Court had considered the evidence and concluded need was established. Although the evidence was described as meagre, both the Controller and the Appellate Court accepted it; the High Court declined to interfere on Art. 227 review of those findings.
  3. Ground (v) — failure to occupy the major part of the holding:
    • The petitioner argued that "holding" refers only to the land and not to structures, and therefore non-occupation of structures should not engage clause (v). The court reasoned that, while the legal definition of holding addresses the land, structures are necessarily on the holding and the clause contemplates occupation of the holding including the structures erected on it when addressing residential/manufacturing/business use.
    • Factually, the court noted there were ten rooms in the tenant's structures and only one was occupied by the tenant. On that basis, the court held the tenant had failed to occupy the major part of the holding for the requisite six consecutive months and that ejectment under clause (v) was rightly ordered by the lower courts.
  4. Proviso to clause (v) and claim to tenancy for the occupied room:
    • The court observed that the proviso to clause (v) could be relied upon to claim to be a tenant in respect of the room occupied only if ejectment had been sought solely under clause (v). Because the landlord also sought ejectment under clause (iv) (which is not governed by that proviso), the petitioner's claim to be deemed a tenant of the occupied room could not be allowed.
  5. Requirement of prior offer of compensation under the lease:
    • The petitioner argued the lease required the landlord to make an offer of compensation before instituting ejectment proceedings. The court examined the lease and found no such provision making an offer of compensation a condition precedent to instituting ejectment proceedings.
    • The court also noted that the Controller had ordered an assessment of compensation under clause 4(b) of the Calcutta Thika Tenancy Act and that the order of ejectment would be enforced only after such compensation was assessed and paid — undermining the petitioner's contention that an offer prior to institution was required.

Holding and Implications

Core Ruling: The Rule is DISCHARGED. All points raised by Mr. Bagchi on behalf of the petitioner were rejected.

Direct consequences and practical implications:

  • The appellate order upholding ejectment in respect of premises No. 53/2 stands; the High Court declined to interfere under Article 227 on the issues addressed.
  • The court accepted the Controller's and Appellate Court's findings on grounds (iv) and (v) — in particular, that the landlord had established sufficient need for khas possession for building/development, and that the tenant had failed to occupy the major part of the holding (structures) such that ejectment under clause (v) was justified.
  • The court did not decide or rely on the default (clause (i)) ground because clauses (iv) and (v) were sufficient for disposal.
  • The Controller's order for assessment of compensation under clause 4(b) of the Calcutta Thika Tenancy Act remains operative; the ejectment will be enforced only after compensation is assessed and paid.
  • Hearing fee assessed at three gold mohurs; the records are to be sent down.

The opinion does not announce or purport to lay down any new legal precedent beyond the application of existing statutory provisions and the factual conclusions drawn upon the evidence in this case.

Judge: Renupada Mukherjee, J. (signature block in the record: A.K.D.G)

Show full summary ...

    Tirtha Nath Ghose v. Sri Sri Iswar Bamlingadeba And Anr. Opposite Parties.

    Renupada Mukherjee, J.:— This Civil Revision case under Article 227 of the Constitution of India has arisen under the following circumstances:—

    Petitioner Tirtha Nath Ghose held two thika tenancies under the opposite party, who is a shebait of two deities. One such holding bears premises No. 53/2, Shalimar Road of Howrah Municipality and another holding bears No. 53/3, Shalimar Road,. The opposite party landlord instituted two proceedings under section 5 of the Calcutta Thika Tenancy Act for ejectment of the petitioner on grounds which shall be mentioned and discussed later in my judgment, Both the; applications were allowed on contest by the Munsif, 2nd Court, Howrah exercising the function of a Controller. Appeals were preferred by the tenant, but they were dismissed by the learned Subordinate Judge, who heard them. The petitioner has obtained the present Rule against that portion of the appellate order, which governs holding No. 53/2, and I am not concerned in the present Rule with the other holding.

    1. Premises No. 53/2, Salimar Road measures about three cottas and the tenant has built some structures on the land containing ten rooms. The landlord instituted the ejectment proceeding on grounds (i), (iv) and (v) of section 3 of the Calcutta Thika Tenancy Act. These grounds respectively are (i) that the tenant was a defaulter, (ii) that the landlord required the land for building and developing and (iii) that the tenant had failed himself to use or occupy the holding for his own residential, manufacturing or business purposes for more than six consecutive months. The validity and bonafides of these grounds were challenged by the tenant but his objections were over-ruled both by the Controller and the Appellate Court. So the tenant has come up to this court invoking the High Court's power of superintendence under Art. 227 of the Constitution.

    2. Before dealing with that part of the case which rests on a consideration of some of the provisions of the Calcutta Thika Tenancy Act., I must dispose of some of the general objections raised by Mr. Bagchi on behalf of the tenant petitioner, which relate to the status of the tenant and to the validity of the notice of ejectment served upon him. Mr. Bagchi contended, in the first place, that the petitioner before this court was a tenant from year to year and not a monthly tenant as has been found by the lower Appellate Court and so under Sec. 106 of the Transfer of Property Act the tenancy was terminable by six months' notice expiring with the end of the year of the tenancy and not by three months' notice as was given in this case under Sec. 4(b) of the Calcutta Thika Tenancy Act. This contention of the learned Advocate for the petitioner does not appear to be sound to me. The lease, which was executed between the predecessors of the parties, was exhibited before the Controller. It shows that the tenant took lease of some bagat lands for the purpose of residence by erecting non-permanent structures for an indefinite period. No doubt, an annual rent of Rs. 12/12-was reserved, but even this annual rent was payable in two equal instalments ins Aswin and Chaitra of each year. Such a lease under Sec. 106 of the Transfer of Property Act taken for residential purpose is terminable by 15 days' notice expiring with the end of the month of the tenancy and by three months' notice under Sec. 4(b) of the Calcutta Thika Tenancy Act. I hold that the petitioner's tenancy was not a tenancy from year to year and the period of notice was adequate.

    3. The next ground urged by Mr. Bagchi on behalf of the petitioner regarding the invalidity of the notice was that even assuming the tenancy to be a monthly one, the month of the tenancy must be taken to be commencing from the 19th of each month and expiring with the 18th of the succeeding month, because the lease was executed on the 19th Sravan, 1327 B.S and no date of commencement was mentioned in the lease. Mr. Bagchi, therefore, urged that the three months' notice given by the opposite party should have expired with the 18th of Aswin and not the end of that month as mentioned in the notice. In this connection Mr. Bagchi cited the case reported in 59 C.W.N 526 (Surjya Kumar Mukherjee v. Trilochan Nath) and contended that no evidence of the date of commencement of the tenancy or of the termination of the month of the tenancy having been given by the landlord and the lease having been executed on the 19th Sravan, 1327 B.S the notice should have been held to be invalid and insufficient by the lower Appellate Court.

    4. The above contention of Mr. Bagchi when carefully examined would not stand scrutiny. In paragraph 2 of his application filed before the Controller for ejectment of the tenant, the landlord specifically stated that the tenancy was according to Bengali calender month which, of course, means a full month from the 1st day till the last day of the month. This averment about the month of the tenancy not having been denied in the written statement filed by the tenant, must be taken to have been admitted by the tenant, and an admitted fact does not require any proof unless the admission is otherwise explained by its maker. So the facts of this case are clearly distinguishable from the facts of the case reported in 59 C.W.N 526 (1) (Surjya Kumar Mukherjee v. Trilochan Nath). Moreover, the manner of payment of rent in this case also gives a sure indication about the month of the tenancy. A long series of dakhilas filed by the petitioner himself would show that rent has all along been paid for one year or more full years and in making such payments, the year has always been taken to be commencing from the 1st Baisakh and ending in Chaitra and not as commencing from 19th Sravan and ending on the 18th Sravan of the following year. There is no indication in the lease that it was to commence from the date of its execution. So it must be held that the lease created a tenancy from the commencement of the calender year or month as the case may be (vide 42 C.W.N 771 (2) Udaytara Saha v. Habibar Rahaman). I have, however, held that the tenancy was a monthly one and not a tenancy from year to year. That being so and rent having been paid according to Bengali Calender year, it must be held that whatever might have been the date of execution of the lease; the parties must have come to an understanding that the tenancy would run according to Bengali calender month. Rent was of course paid on annual basis for convenience of payments. So the contention of Mr. Bagchi that the notice served on the petitioner was invalid on the ground discussed above must fail.

    5. I now proceed to discuss the validity of the grounds on which the order of ejectment has been made by the Thika Controller and the Appellate Court. These grounds, as I have already stated, are three in number:(1) Default in clause (1) of Sec. 3 of the Calcutta Thika Tenancy Act, (ii) requirement of the land by the landlord for purposes of building and development and (iii) failure of the tenant to occupy the major part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months. I shall first of all deal with the last two grounds.

    6. Mr. Bagchi contended on behalf of the petitioner that in holding that the landlord required the premises for purposes of building and development, neither the Controller nor the Appellate Court came to a finding that the landlord was truly and genuinely in need of taking the land into his khas possession for the above purpose. In this connection, Mr. Bagchi drew my attention to a case reported in 59 C.W.N 984, (3) (Nagendra Nath Gupta v. Sm. Mohit Kumari Pandit) and contended that what the landlord had provided before the Controller was that he merely wished to take the land into his khas possession and he did not prove that there was an element of need from his side. In my judgment, this contention of Mr. Bagchi is not correct, because the lower Appellate Court was quite alive to the true legal position that under Sec. 3(iv), the landlord must establish some element of need. That Court has held upon a consideration of the evidence adduced before the Controller that such a need had been established on the part of the landlord. The evidence adduced before him might have been meagre, but that was accepted by both the Controller and the Appellate Court and so I do not see any reason to interfere on an application under Art. 227 of the Constitution.

    7. Mr. Bagchi then contended that the Controller and the Appellate Court were wrong in holding that because the petitioner had not occupied the major portion of the structures standing on the disputed land for more than six consecutive months, he was liable to be ejected under Sec. 3(v) of the Calcutta Thika Tenancy Act. Mr. Bagchi argued that the relevant word used in this clause is “holding” and not “structures” and the holding of a, thika tenant under Sec. 2 clause (3) means “a parcel or parcels of land” and does not include structures. This contention of Mr. Bagchi is not also supportable. It is true that the holding of a thika tenant means only the land vis-a-vis the landlord, the structures built on such land belong to the tenant and not to the landlord. But the structures are built on the land of the tenancy or rather on the thika holding and not on air and so when Sec. 3(v) says that the failure of the thika tenant to occupy the major part of the holding for his own residential, manufacturing or business purposes for more than six consecutive months would be penalised by his ejectment, it means also that the failure of the tenant to occupy his structures on the thika land in this manner would meet with similar consequences. In this case, it was proved that there are ten rooms in the structures of which only one was occupied by the tenant. In these circumstances, the lower Appellate Court was right in holding that the tenant had failed to occupy the major part of the holding himself for his own residential, manufacturing or business purposes for the requisite period and an order for ejectment under this clause of Sec. 3 was, therefore, rightly made and the contention put forth on behalf of the petitioner must fail.

    8. A consideration of the grounds for ejectment based on clauses (iv) and (v) of Sec. 3 of the Calcutta Thika Tenancy Act is sufficient for the purpose of disposal of the present application. I need not, therefore, enter into the question whether the tenant was a defaulter.

    9. Before passing my final order I must note two other small contentions raised by Mr. Bagchi. He contended that under the proviso to clause (v) of Sec. 3 of the Act the petitioner should at least be deemed to be a tenant in respect of the room occupied by him. Such a claim of tenancy could have been put forth if ejectment had been ordered only under clause (v), but as the landlord has also prayed for ejectment under clause (iv), which is not governed by the proviso to clause (v), no such claim of tenancy can be allowed.

    10. The last contention urged by Mr. Bagchi was that in any case according to the terms of the lease the landlord should have made an offer of payment of compensation before instituting the proceedings in ejectment.

    11. I have gone through the relevant portions of the lease. There is no provision in the lease that such an offer was a condition precedent to the institution of any ejectment proceeding. As a matter of fact the Controller has passed an order for assessment of compensation under clause 4(b) of the Calcutta Thika Tenancy Act. The order of ejectment will be enforced only after such compensation is assessed and paid. That being the case, there is no ground for upholding the contention of Mr. Bagchi that an offer to pay compensation by the landlord was a condition precedent to the institution of the ejectment proceedings.

    12. All the points raised by Mr. Bagchi on behalf of the petitioner having failed, this Rule is discharged. Hearing fee is assessed at three gold mohurs.

    13. Let the records be sent down early.

    A.K.D.G

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Tirtha Nath Ghose v. Sri Sri Iswar Bamlingadeba And Anr. Opposite Parties.
    (Dec 5, 1956)