1968 SCMR 231 (PLP)

FAZLE-AKBAR, J.-This judgment will dispose of Civil Appeals Nos. 21-D and 22-D of 1966. These appeals arise out of two suits filed by the respondent Dabiruddin Sarkar against the appellants for recovery of Possession of the suit lands upon declaration of their title thereto. The only question raised in these appeals is the question of limitation and that is whether Article I (a) of Schedule III of the Bengal Tenancy Act, applies to these suits. By a kabuliyat executed on 27th Asar, 1348 B.S, corres ponding to 11th July 1941 the defendants took the Korfa settlement of 3'52 acres of land for a period of five years. By another kabultyat executed on the same date they took Korfa settlement of another 1'99 acres of land for a period of five years. The plaintiff's case was that on the expiry of the term of the aforesaid tenancies the defendants continued to hold over the lands by paying rents. He, therefore, after giving one year's notice brought these suits for ejectment of the tenants. The defendants denied relationship of landlord and tenant and also challenged the plaintiff's title to evict them. They also con tended that the suits were barred by limitation. The Munsif who tried the suits found that in view of the admission of the defendants contained in the kabuliyats, they were estopped from challenging the title of the plaintiff. He, however, held that the defendants being under-raiyat, the suits for eject ment should have been filed within six months of the expiry of the term of the leases, as provided in Article 1(a) of Schedule III of the Bengal Tenancy Act. He, therefore, dismissed both the suits. The plaintiff' then filed two appeals against the dismissal of suits. The defendants also filed cross-objections against the finding of the Munsif with regard to the title of the plaintiff in the suit lands. The Additional District Judge who heard the appeals and the cross-objections upheld the finding of the Munsif that the defendants were estopped from challenging the title of the plaintiff. He further found that on expiry of the term of the leases the defendants held over the lands as tenants and as such clause (d) of section 48-C of the Bengal Tenancy Act was attracted to these cases and the plaintiff, therefore, was entitled toterminate the tenancies by giving one year's notice. He accordingly allowed the appeals, dismissed the cross-objections and decreed both the suits. The defendants then filed a second appeal in the High Court, but the same was dismissed by a learned Single Judge of that Court. Both the leases expired in the year 1946 and there being no covenant for renewal of the leases the tenants did not execute any kabuliyats. The finding of the appellate Courts that after expiry of the term of the leases the defendants held over the lands on payment of rents, is supported by the counterfoils of the rent receipts which were filed by the plaintiff. Hence, the question is whether Article 1(a) of Schedule III of the Bengal Tenancy Act, is attracted to such a case. The said Article is as follows "To object a non-occupancy raiyat (or under-raiyat) on the ground of the expiration of the term of his lease. Period of limitation Six months." Thus, the above Article provides that suit to eject a non-occupaneY, raiyat or under-raiyat on the ground of expiration of the term 01 his lease must be instituted within six months from the expiration of the term. The learned counsel for the appellants attempted to argue that in view of the renewal clauses in the kabuliyats the tenants should be deemed to hold the lands under the lease and as such clause (e) of section 48-C and Article 1(a) of Schedule III of the Bengal Tenancy Act would be applicable to this tenancy and the plaintiff therefore would not be entitled to evict the tenants because on the date of the suit a period much longer than 6 months had expired. According to him, the suits are barred by limitation under Article 1 (a). It appears from the English translation of the leases that a line to the effect and would be entitled to renewal after termina tion of the term of lease' was added, but the original kabuliyats contained no such clause. On the other hand, from the oral as well as documentary evidence it is clear that on the expiry of the term of the leases the tenants were holding over the lands on payment of rent. In these circumstances, the learned Single Judge rightly held that clause (d) of section 48-C applied to the cases and the plaintiff was entitled to evict the tenants by giving one year's notice. In other words, no question of eviction of the tenants on the expiry of the lease arises in this case. In conclusion, we may observe that the decision in Jagabanda Pasak and others v. Karim Mondal and others (8 D L R 366), on which the learned counsel relied, has no application to this case. In the said case, the tenants, after expiry of the lease, continued to possess the land as trespassers and in that context the Court held that their tenancy could only be terminated in accordance with clause (c) of section 48-C. i.e., within six months of the expiry of the lease. As that was not done, the Court held that the suit would be barred by limitation under Article 1 (a) of Schedule III of the Bengal Tenancy Act. In that case, there was no question of holding over of the tenancy after expiration of the lease. For the reasons stated above, we see no ground for interfer ence with the judgment of the High Court and accordingly dismiss these appeals with costs. Appeals dismissed.