P L D 1962 Dacca 548 (PLP)

CHOWDHURY, C. J.‑This appeal under clause 15 of the Letters Patent is against the judgment and decree of Asir, J. in Second Appeal No. 349 of 1958. The Appeal arises out of a suit for establishment of title and recovery of possession with mesne profits. It is admitted that the suit land appertains to the non‑agricultural tenancy of one Brajabashi Bairagi lying within Serajganj Municipality and that the plaintiff is the purchaser from Brajabashi Bairagi of the suit land along with other land by a kabala dated the 13th March 1351 A S. corresponding to 26‑1‑

45. When she went to take possession of the land after her purchase, she found the defendant in possession thereof as trespasser. Hence she filed the suit.

3. The main defence of the contesting defendant is that he was a non‑agricultural tenant since the time of his father and as such the plaintiff was not entitled to get khas possession. In support of his defence the defendant relied on the settlement taken by his father Taher Sardar for non‑agricultural purposes, namely, for the purpose of residence by a kabuliyat dated 16-9‑1927 corresponding to 13th Bhadra 1334 B. S. at a rental of Rs. 30 per annum for a period of two years ending in Sravan 1336 B. S. Taher Sardar built a house thereon and lived there even after the expiry of the period of the lease and he died in or about the year 1942. On his death his son, the present defendant, continued to be in possession. During the pendency of the suit the East Bengal Non‑agricultural Tenancy Act (XXIII of 1949) came into force and the defendant claimed protection under that Act. To this claim the plaintiff's contention was that the defendant could not claim protection under the East Bengal Non‑Agricultural Tenancy Act of 1949 as the suit was instituted in 1946 long before the introduction of the said Act. Further the contention of the plaintiff was that the provision of that Act had no application and the tenancy would be governed by the Transfer of Property Act and that as there was no privity of contract between the lessor and the heirs of the lessee, the heirs if they continue to be in possession after the expiry of the lease, cannot become tenants by holding over under section 116 of the Transfer of Property Act.

4. The learned Subordinate Judge, relying on section 7 (4) of the East Bengal Non‑Agricultural Tenancy Act, 1949, (which provides that if any non‑agricultural land held under a lease in writing for a period specified therein continues to be held after the expiration of the time limited by such lease and the total period for which such land is held is not less than 12 years then the tenant holding the non‑agricultural land comprised in such tenancy shall not be ejected by his landlord except on ground that the tenant has used the land in a manner which renders it unfit for use etc.), section 89‑A of the said Act (which provides that in computing under this chapter the period for which any non‑agricultural land has been held by a tenant he shall be entitled to tack to the length of his possession any period during which his predecessor‑in‑interest was in possession of the land provided that there is no break between the periods to be tacked) and section 88 of the Act (providing that the provision of this Act shall apply to all suits, appeals and proceedings including proceedings m execution for ejectment of a non -agricultural tenant which are pending at the date of commence ment of this Act and also to all decrees passed for the ejectment of a non‑agricultural tenant which have not been executed and are not barred by limitation and in respect of which no pro ceedings in execution so pending and the tenants against whom such suits, appeals and proceedings are so pending or such decrees have been passed shall not be ejected on any ground except under the provisions of this Act) held as follows :‑ "Therefore, even if the Act came into force in 1949 and the suit was instituted in 1946 the law is quite clear that the provision is applicable in the particular case." The learned Subordinate Judge further held that section 116 of the Transfer of Property Act as relied on by the plaintiff has, therefore, no application. In these views of the matters the learned Subordinate Judge dismissed the appeal and affirmed the decision of the trial Court.

5. On appeal by the plaintiff, the learned Advocate for the appellant strongly relied on the case of Khagendra Nath Saha and others v. Naresh Chandra Roy and others ((1952) 4 D L R 598 (602)), it has been held: "It was not disputed that a tenant‑at‑will or a tenant holding over does not leave any interest in the land to which his heirs can succeed. Therefore, when the Act of 1940, came into force, the appellants were mere trespassers" and also on the fact that there is no finding that the defendant was ever recognised by the landlord concerned as a tenant after the death of Taher Sardar, father of the defendant, Asir, J., relying on the case reported in 4 D L R 598 observed: ‑ "It is true that ordinarily the incidents of an immovable property should be regarded as being heritable and transferable unless there is any contract or usage to the contrary. But in the circumstances of the case it is difficult for me to hold, in view of the decision of a Division Bench of this Court as referred to above, that such a proposition of law could conclusive ly determine the point in issue in the present case. The decision referred to above is binding on me. In that case the original tenant lived for more than 12 years but after his death his heirs were not recognised as tenants. In view of such finding it was held that the defendants were not entitled to get protection of the relevant Act . . . . . There is no material to show that the defendant was ever recognised as such after the death of his father Taher Sardar. I am, therefore, inclined to think that although Taher Sardar might have possessed the land for more than 12 years yet the tenancy‑right which he enjoyed in respect of the suit land cannot be said to have been inherited by the defendant and as such this period cannot be tacked to the period of his possession. The Courts below seem to have over‑looked this aspect of the case and it does not appear that the decision referred to above in 4 D L R page 598 ever cited at any stage before this". In this view of the matter my learned brother Asir, J. allowed the appeal, set aside the judgments and decrees of the Courts below and decreed the suit of the plaintiff; but at the same time granted a leave to appeal under clause 15 of the Letters Patent. Hence the appeal.

6. Therefore, the only question urged before us by the learned Advocate for the defendant‑appellant in this appeal is whether the defendant, son of Taher Sardar, who held the land as a tenant by holding over for over 12 years (and after his death when the defendant is in possession of the same), is protected under the East Bengal Non‑Agricultural Tenancy Act of 1949 (XXIII of 1949).

7. To understand the argument of Mr. Ahmed, the learned Advocate for the appellant, we think it necessary to refer to certain provisions of the Bengal Non‑agricultural Tenancy (Temporary Provisions) Act, 1940 as well as some relevant provisions of the Act XXIII of 1949. Section 2 of the Act IX of 1940 defines non‑agricultural tenant. Section 3 of that Act provides for stay of suits and proceedings for ejectment of non‑agricultural tenant for the period during which this Temporary Provision Act of 1940 continues in force Act XXIII of 1349 also gives definition of non‑agricultural tenants which includes not only persons who held non‑agricultural land under another person with the consent of that person and is or but for a special contract would be liable to pay rent to such person for that land but also it includes successors‑in‑interest of the former. Section 7 (4) of the said Act runs as follows:‑ "

7. Notwithstanding anything contained in any other law for the time being in force or in any contract . . . . . . (4) if any non‑agricultural land held under a lease in writing for a period specified therein continues to be held after the expiration of time limited by such lease and the total period for which such land is so held is not less, than 12 years . . . . . then, (f) the tenant holding the non‑agricultural land comprised in such tenancy shall not be ejected by his landlord from such land etc." Section 88 of Act XXIII of 1949 provides that the provisions of this Act shall apply to all suits, appeals and proceedings including proceedings in execution for the ejectment of a non‑agricultural tenant which are pending at the date of the commencement of this Act etc. Section 89‑A of the Act provides that: "In calculating for the purposes of this Act the period for which any non‑agricultural land has been held by any non -agricultural tenant, the period for which such tenant. has held such land while the Bengal Non‑Agricultural Tenancy (Temporary Provisions) Act, 1940, has been in force shall be included".

8. The first contention of Mr. Ahmed is that Taher Sardar by continuous possession for over 12 years acquired a permanent right as contemplated under section 7 (4) of the Act XXIII of 1949. In the case of Krishna Ranjan Chowdhury v. Hemchandra Das Chowdhury ((1957) 9 D L R 159 (163)), it has been pointed out as follows: "Under section 7 of this Act, if a non‑agricultural tenant; as defined in the Act continues to possess any non‑agricultural land continuously for 12 years, the Act has given protection to such a tenant. Before this Act, there was no such protection given to such a tenant under any law." At the time when Taher Sardar died in the year 1942, not only the Act XXIII of 1949 was not in force, but also no suit for ejectment was pending to attract the operation of section 7 (4) bf the Act XXIII of 1949.

9. Now, it is the settled law that the tenancy‑at‑will or tenancy by holding over, terminates with the death of the tenant and there remains nothing for his heirs to be inherited nor his heirs can be considered as tenants holding over until and unless the landlord recognised them as tenants expressly or by implication. The principle is that there is no privity of con tract between the lessor and the heirs of the lessee. If the heir continues to be in possession on the expiry of the lease, he cannot become a tenant by holding over and new tenancy must be create by the consent of both sides, otherwise the heirs are trespassers. At the time when Taher Sardar died, he did not acquire any interest in the land of the tenancy as contemplated in section 7 (4) of Act XXIII of 1949 as contended by the learned Advocate, Mr. Ahmed as that Act was not in force then.

10. The next contention of Mr. Ahmed is that he being a successor‑in‑interest within the definition of non‑agricultural tenant in the Act XXIII of 1949 he is protected. But that definition of non‑agricultural tenant was introduced for the first time in the Act XXIII of 1949 and it was not in the Act IX of 1940 where the definition of tenant only refers to the tenant and not his heirs and the Act of 1949 was not in force when Taher Sardar died. Therefore, the defendant cannot be treated as a successor‑in‑interest within the definition of a non‑agricultural tenant under Act XXIII of 1949.

11. It is a fact as found by the Courts below that after the death of Taher Sardar, the defendant continued to be in possession of the disputed non‑agricultural land; but that does not protect him as he has not possessed it as tenant nor completed 12 years before the institution of this suit, nor can he tack the possession of his father to his possession for com pleting 12 years. The defendant might have continued to possess the land during the pendency of this suit up to this stage, but the period of his possession after the institution of this suit, cannot be taken into consideration as nowhere the East Bengal Non‑Agricultural Tenancy Act of 1949 provides that even if such a tenant did not complete 12 years of possession before the institution of the suit, but completed 12 years' possession during the pendency of the suit, appeal or execution proceeding pending at the time of the commencement of the Act, he can count upon that period of his possession or any portion thereof after the suit in calculating 12 years. The material point of time for computation of the period of 12 years is the date o institution of the suit, as has been held in the case reported in C 9 D L R 159, that as a rule, the date of commencement of the Act shall be taken to be the date of institution of the suit as if the Act was in force at that time. Therefore, his possession after the institution of this suit is immaterial for the purpose of protection under the Act of 1949. In this view of the matter, we think the case has been correctly decided by our learned brother, Asir, J.

12. Further, in the view taken above, the defendant who has neither inherited anything from his father to be his successor- in‑interest nor recognised by the landlord be considered as possession of a tenant. The plaintiff filed the present suit for ejectment not of a tenant but of a trespasser. It is also conceded by Mr. Ahmed that if he cannot inherit the tenancy of his father or if he cannot be treated as a successor‑in‑interest within the meaning of the definition of non‑agricultural tenant in the Act of 1949, he has got no case.

13. The result, therefore, is that this appeal is dismissed and the decree passed by the High Court in the Second Appeal is affirmed, but there will be no orders as to costs in the circum stances of the case. M. R. KHAN, J.‑I agree with my Lord, the Chief Justice. Appeal dismissed.