P (PLP)

Ashrafuddin Chowdhury, for Appellant. Upendra Kumar Roy, and Dharani Nath Dutta, for Respon dent. JUDGMENT.‑This appeal is by defendant No. 2 and arises out of a suit for ejectment after a notice to quit and also for rent and mesne profits. The plaintiff's case is that the defendants' predecessor‑in -interest Abdul Majid and Abdul Khaleque took settlement from the father of the plaintiff a pucca building consisting of 3 rooms and the land on which the building stood and also the open space lying to the west of the building in all measuring 50 cubits by 18 cubits for a term of two years from the 1st Magh 1330 B. S. to the 30th Pous 1332 B. S. with the option for one renewal by executing a registered kabuliat dated the 24th Pous, 1330 B. S, corresponding to the 9th January 1924. The defendants failed to exercise the option of renewal and continued to hold the tenancy as monthly tenants according to the Bengali Calendar month. The plaintiff's father died leaving him and pro‑defendants Nos. 4 and 5 as heirs and after his death there was a partition with the result that the plaintiff became the sole owner of the disputed leasehold and he determined the tenancy by 15 days' notice to quit but inspite of determination of the tenancy, the defendants refused to vacate and so the present action was brought for khas possession of the tenancy by evicting the defendants therefrom on the ground that it was required for personal use of the plaintiff and also because the defendants violated some of the covenants in the lease incurring forfeiture and further for recovery of arrears of rent for 7 month and damages and of mesne profits for 28 months. In the plaint it is stated that though the original lessees were two, brothers Abdul Majid and Abdul Khaleque but on partition between the two brothers, the leasehold interest was owned by Abdul Majid alone and on the latter's death in 1334 B. S., principal defendants Nos. 1 to 3 owned and possessed the disputed property under the original lease. The suit has been contested by the defendant No. 2 only by filing a written statement and his defence inter alia has been that the lease was taken for running a cloth business and that the lessees repaired the building at a great cost, that the lease stipulated that the lessees would not be evicted so long as they paid rent and carried on cloth business there and they did not violate any terms of the lease, that the lease further provided that if the lessees constructed any ghar (house) in the open space to the west of the building then the lessor would be entitled to purchase the same at any time on payment of its or their proper price, that is, the price that may be settled and fixed by five principal mahajans of the Bandar (that is by the mahajans of Sylhet Bandar, where the leasehold property is situated), that the defendants had been regularly paying rent but after the death of plaintiff's father when the defendants could not ascertain to whom the rent amongst plaintiff's brothers would be payable they could not pay rent regularly but after they came to know that rent was payable to the plaintiff they tendered the same to the plaintiff, who refused to accept the same even when the defendants sent the arrears of rent by insures post, that the suit was not tenable without giving the defendants an opportunity to renew the lease and that the notice served on the defendants was not valid and sufficient. '. The lease (Exhibit 1) is of a building consisting of three rooms and the lands on which the building stands, and also the land lying to the west of the building measuring in all 50 cubits by 18 cubits in local measure and, it inter alia provides that the lessees would be entitled to make alterations in the building at their own expenses, if necessary for the purpose of the lessees business and the lessees would not be entitled to claim any compensation for such alterations even if they, gave up the leasehold interest at any time in future, that the lease was for two years from the 1st Magh 1330, B. S. to 30th Pous 1332 B. S. that the monthly rent of Rs. 26 would be payable on the last day' of every month in default the lessees would pay along ,with the arrears of rent damages ‑at the rate of two annas per rupee per mensem, that if monthly rent was not paid every month regularly and if any of the terms of the kabuliat were violated the lessor would be entitled to evict the lessees and that the lessees would have the option to take a second lease on the expiry of the term of the first lease, that the lessor would be competent to purchase at any time any ghars or ghar (house) erected on the open space in the western side by lessees on payment of proper price, that is what would be fixed as the price by five principal mahajans of the Bandar and the lessees would not be entitled to raise any objection thereto and that the lessees would pay the Municipal taxes for the said building and the land as assessed from time to time by the municipality. In the schedule the leasehold property has been described to be "the Nishkar lands etc. and the Pucca building". The trial Court by its judgment and decree dated the 27th January, 1944 on a consideration of the entire oral and documentary evidence on the record passed a decree for ejectment and rent in respect of 7 months at Rs.26 per month and also for mesne profits for a sum less than that claimed by the plaintiff observing, inter alia that the defendants were monthly tenants and were liable to ejectment by 15 days' notice and the notice that was served was valid and sufficient and that the defendants did not avail themselves of the option of renewal though opportunity was offered to them. Against the said decision the defendants preferred one appeal and the plaintiff filed another praying for a decree for mesne. profits for the entire amount claimed in the plaint, and both the appeals were heard analogously by the learned Subordinate Judge, Second Court, Sylhet, who dismissed both the appeals by his judgment and decrees dated the 31st May, 1944, affirming the decision of the trial Court, The present second appeal by the defendant No. 2 is against the decision decreeing plaintiff's suit in ejectment. Mr. Ashrafuddin Choudhury on behalf of the appellant firstly contends that the notice was bad in law and insufficient. The notices that have been admittedly served on the‑ defendants are Exhibits 2 to 2(a)‑and they are dated the 10th Bhadra, 1347 B. S. and they direct that the defendants should vacate the premises after the expiry of the Last date of the month of Bhadra, 1347 B. S. The notices give more than 15 clear days' notice ending with the month of the tenancy which is a monthly tenancy according to the Bengali Calendar month. In my opinion there is no substance in this contention of Mr. Choudhry. The notices served on the defendants in this case are quite valid, legal and sufficient. See Gobinda Chandra Shaha and another v. Dwarka Nath Patita (1914) 19 C. W. N. 489 ; Bijay Chandra Sinha v. Howrah Amta Light Ry. Co. Ltd. (1922) 38 C. L. J. 177 and The Secretary of State for India in Council v. Madhu Sudhan Mukherjee (1932) 36 C. W. N.

918. The first contention of Mr. Choudhury therefore fails. The second contention of Mr. Choudhury for the appellant is that the tenant defendants in view of the terms of the lease are entitled to get the price of the ghar or ghars (house or houses) constructed by the defendants in the open space situated, to the west of the building before eviction. The lease (Exhibit 1). provides that if the lessees construct any ghar or ghars in the open space lying to the west of the building the lessor would be entitled to purchase the same at any time on payment of tits or their proper price, that is, the price fixed by five principal mahajans of the Bandar (Sylhet), where the leasehold property is situated. The defendant No. 2 in sub‑paragraph (cha) of paragraph 15 of the written statements raised a defence that unless the plaintiff, in terms of the lease pays to the defendants the price of the ghars constructed in the western portion of the disputed land as settled by five mahajans of the Bandar, he the plaintiff, will not be entitled to eject the defendants. Though this defence in the written statements, no issue was framed in the suit, and it does not appear from the judgments of both the Courts below that such a point was ever raised in the present form in any of the Courts below and at any rate no such specific ground has even been taken in the grounds of appeal .in this Court. The matter requires some investigation of facts also. The only indication I find in any of the Courts below is a passage in the trial Courts judgment to the effect that "the defendants have built ghar within the disputed land and have rented out the 2 rooms". That is not sufficient for a determination of the question urged on behalf of the appellant before me. Mr. Upendra Kumar Roy rightly submits that the defendants should not be allowed to raise this point at this stage. The learned Advocates appearing before me on behalf of both parties agree that the lease provides that the lessor will be entitled to purchase the ghar built by the lessees in the ,western portion at any time at a price settled by five principal mahajans of the Bandar. In ordinary circumstances I would not have allowed the learned Advocate for the appellant to raise such a contention for the first time in Second Appeal at the hearing, because firstly, such a procedure is not warranted in practice in this Court. If an appellant wants to raise a contention that at least should find a place in the memorandum of appeal. Even if there is no such ground taken in the memorandum, it can, with the permission of the Court, be raised provided notice of such a ground is served on the Advocate for the respondent at least 94 hours before the hearing of the appeal. Neither of these steps has been taken in this appeal. Secondly, the determination of this question requires some investigation of facts such as how many houses or house has been built by the lessees before suit in ejectment and what will be their or its price according to the estimate of 5 principal mahajans of Sylhet Bandar. The investigation of this matter requires time and expenses. I would have ordinarily rejected this contention of the appellant but on a consideration of the facts and circumstances of the case that the defendants have been carrying on their cloth business in the premises since Magh, 1330 B. S. (January‑February, 1924) and that there is evidence to show that since the lease, the lessees have constructed house or houses on the open space of leasehold land before the filing of the suit, which the lessor would be entitled to purchase at a price fixed by five principal mahajans, which may legitimately be held to have been the intentions of the parties to the lease, but as I am going to remand the suit to the trial Court on the last point, I direct that the trial Court should appoint a Commissioner, at the cost and expense borne by the defendants only, which will be cost in the suit and which cost shall be borne entirely by the defendants, whatever may be the result in the suit after remand, to find out how many ghats or ghar has been built by the lessees .from the date of the lease till the institution of the suit and what is the price of them or that according to five principal mahajans of Sylhet Bandar. The personnel of the mahajans is to be chosen by the Court from the lists supplied by the lawyers of both parties and when the price is so fixed the defendants are to file in Court. the Court‑fees payable on that mount within a month from the date of fixation of the price and that having been done the plaintiff will deposit in Court to the credit of the defendants the said amount of price within a month thereafter and on his doing so the decree in ejectment will stand. On failure of the defendants to perform any of the aforesaid directions as set out above, the decree in ejectment etc. of the trial Court will stand. Again if the defendants perform their part as hereinbefore mentioned and the plaintiff deposits the sum, the decree in ejectment passed by the trial Court will stand and the defendants will be entitled to withdraw the amount deposited by the plaintiff. The costs in this respect, as ' I have already mentioned, will be borne by the defendants only. I think that in the circumstances and the facts in the case, the suit should be remanded to the trial Court for determination of the question whether the defendants are entitled to the protection from ejection under the provisions in the East Bengal Non‑Agricultural Tenancy Act (XXIII of 1949) in respect of the lands of the leasehold lying to the west of the building in suit. This point has not been and could not be raised by the defence either in the Vial Court or in the grounds of appeal to this Court because the Act in question has come into force only from the 20th October, 1949. On reading the lease I feel that the provisions of the above Act may or may, not apply to the land lying to the west of the building. That matter 'requires considera tion. If the provisions of the Act apply to the said land to the west of the buildings, this Court can apply to provisions even if the Act is in force only from recently. It is now well‑established that the Court of appeal can take into consideration events and circumstances and change in law which have happened during the pendency‑of the appeal, where by doing so it can shorten litigation and best attain the ends of justice and also do complete justice to the parties and further preserve and maintain the rights of the parties to which they are legally entitled. It is not only competent to a Court of appeal to take notice of such events but it is its duty to do so. See Ram Ratan Sahu and others. v. Mohant Sahu and others (1907) 6 C. L. J. 74 ; Udit Chobey v. Rashika Prasad Upadhya (1907) 6 C. L. .J. 662 at p. 606; Rai Charan Mondal and another v. Biswa Nath Mandal 'and other (1914) 20 C. L. J. 107 at p. 108 ; Suresh Chandra Chatterjee v. Kanti Chandra Bhattacherjee (1928) 47 C. L. J. 530 at pages 533 and Raja Kamala Ranjan Roy v. Baijnath Bajoria (1948) 53 C. W. N. 329 at p.

336. In the present case what is demised by the lease is a building and the land 'lying .to the west of the building and the purpose of the lease as expressed is that the lessees were taking settlement for carrying on their business in cloths etc. and it is covenanted that the lessees would be competent to make alterations in the building if required for carrying on their business and that the lessor would be entitled to evict the lessees if the lessees discontinued their said business, and then it is stipulated that if the lessees built ghars or ghar in the open space to the west the lessor would be entitled to purchase the same at a proper price as determined by certain persons ; and the demised leasehold is described as consisting of "nishkar lands etc. ; and the Pucca building". A mere reading of the lease may raise doubt in ‑the mind one that the building and the land may or may pot form a "premises". If the building and the land to its west do not form one "premises" different considerations will arise in view of the provisions of the aforesaid Act in granting a decree in ejectment in respect of the building as well as of the said land to its west, because if the building is separable from the land to its west then the provisions of the Act will apply to that land by virtue of the provisions in section 88 of the Act, and as the tenants have been in possession for more than 12 years admittedly, they will not be ejectable except under certain contingencies provided for in that Act. "A non‑agricultural tenant" under the Act "means a person who holds non‑cultural 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 laud and also includes the successors‑in‑interest of the former but does not include any person who holds any such land on which any `premises' occupied by such person are situated if such 'premises' have been created, or are owned, by the person to whom such occupier is, or but for a special contract would be liable to pay rent for such occupa tion". "Explanation:‑In this clause "premises'' means any building such as a house, manufactory, warehouse, stable, shop or but whether constructed of masoriary, bricks, concrete, wood, mud, metal or any other material whatsoever and includes any land `appertaining' to such building". Mr. Upendra Kumar Roy for respondent urges that in view of the explanation to section 2 (5) of the Act the "premises" mentioned includes any land appertaining to such building, Mr. Roy, therefore, contends that the building and the land to its west form one "premises" and so the provisions of the Act are not attracted. Mr. Roy argues that the land to the west of the building is necessary for enjoyment of the shop and so both form one "premises" and the word appertaining connotes the idea that this land is necessary for use of the building and so, must be treated as one "premises". It is well settled that if the land appertaining to a building is necessary for enjoyment of the, building then the building and the land form one "premises". I am unable to accept the proposition as Mr. Roy urges, namely, that as "premises" mean a building such as a shop (as in this case) and includes any land appertaining to such building therefore the building and the land to its west form one premises, I feel some difficulty for use of the word appertaining" in this sense. The primary sense of the word "appertaining" is much the same as "appurtenances". In this lease the demised property to described as ` Nishkar land etc. and the pucca building".‑ Of course, if the evidence is that the building and the land to its west form one "premises", it is different. Reading the lease one finds that the building and the lands have been separately described. So in my view the primary sense of "appertaining" has been excluded. In Strand's Judicial Dictionary, 2nd edition, at page 100 the law is stated as follows :

"There is, however, a difference between the devise of a house "and the appuris", and of a house "with the land appertaining thereto". It is clear that by the latter expression "some" lands are intended, and therefore the primary sense of the word "appertaining" is excluded". (Jarun 782 and other cases cited) "Again a thing may be "used and enjoyed" or "occupied with something else, without "belonging or appertaining" thereto ; and if these latter words were used they would only cover such things as are appurtenant to and form part of the property, which is the principal subject of instrument. Barlow v. Rhodes,

2. L. J. Ex. 91 ; Wandle v. Brockleharst, 29 L. J. Q. B. 145 and Maitland v. Mackinon, 32 L. J. Ex.

49. Again the word "appurtenant may be used in a secondary sense as equivalent to such a phrase as "usually enjoyed with." "Bayley v. G. W. Ry., 26 Ch. D. 434". So because a "premises" in the explanation has meant any, building such as a shop (as in this case) and includes any land appertaining to such building, it cannot be definitely said that the land and the building in this lease become a "premises" within the definition of section 2 (5) of Act XXIII of 1949. Unless it be held on evidence that the land to the west form one "premises", I am of opinion that the lands to the west will be attracted by the provisions in the East Bengal Non‑Agri cultural Tenancy Act (XXIII of 1949). 1 shall, therefore, remand the case to the trial Court to decide on evidence on the record and on such evidence as the parties may desire to adduce on remand, if the building and the land to its west form one "premises" or `Jif they are separate "premises". If. it be held on evidence that the building and the land to its west form one "premises" then the decree in ejectment passed by the ,, Courts below will stand. But if it is found that the building and the land to its west are separate entities and parcels, then the decree in ejectment passed by the Courts below, so far as the land to the west of the building is concerned, will be vacated. The result, therefore, is that the judgments and decrees of the Courts below are maintained subject to this that the case is remanded to the trial Court to decide the case in the light of the observations made hereinbefore for finally deposing of the matter and if it be held that the building and the land to its west form one "premises" then the plaintiff's suit in ejectment will stand decreed in full with consequential orders subject to this that the plaintiff would pay the price for ghars or ghar as fixed by five principal riahajans of Sylhet at the cost of the defendants and for which amount the defendants shall file Court‑fees within the time mentioned hereinbefore ; but if it be held that the building and the land to its west do not form one "premises" then the plaintiff' will be granted a decree iii ejectment as has been done by the lower appellate Court for the building as also a decree for rent and mesne profits as passed by the Courts below and the plaintiff's prayer for ejectment in respect of the land to the west of the building be dismissed, and in this latter event there need not be any determination of the price of the ghars or ghar in that portion. The orders for costs passed by the two Courts below will stand and the defendant No. 2 appellant shall pay the costs of the" plaintiff‑respondent in this Court as the defendant No. 2 appellant has not taken any grounds on which this Court interferes and he fails on his main grounds. It must be understood that the findings of fact and decisions arrived at by the Courts below on other points will stand as correct, and the decree for mesne profits and arrears of rent as passed by the Courts below shall stand. After remand the trial Court shall modify the decree in ejectment so far as is deemed necessary in order to give effect to the result arrived at by decision on the points I have indicated above. In case it is found by the trial Court that the land to the west of the building and the building do not form a "premises" within the meaning of section 2 (5) of Act XXIII of 1949 and a decree in ejectment is not passed in respect of that portion of land lying to the western portion of the building in order to shorten litigation, the trial Court will assess a fair and equitable rent for that portion separately, and the defendants shall be entitled to hold the same at that rent. In case the two portions‑ are separable on the decision of the trial Court on remand, it is directed that the trial Court will assess fair and. equitable rents for the two portions separately, considering the facts and circumstances prevailing at the present time, because the integrity of the original lease would thereby be destroyed. Future costs will be in the discretion of the trial Court. It is directed that a comprehensive decree should be prepared by this Court. K. M. A Case remanded.