P L D 1959 Supreme Court (Pak (PLP)

AMIRUDDIN AHMED, J.‑This is a certificated appeal from the judgment and decree of the High Court of East Pakistan at Dacca made in appeal from the original decree passed by the Subordinate Judge, Additional Court of Chittagong, reversing the decision of the Subordinate Judge. It arises out of a suit instituted by the respondent in the Court of the Subordinate Judge for ejectment of the appellant from the suit‑land, for compensation for the period after his tenancy was terminated by fifteen days' notice under section 106 of the Transfer of Property Act, and for arrears of rent for the period during which the appellant was his tenant. The facts of the case briefly are that the land in suit originally belonged to one Upendra Mohan Pal jointly with his two brothers. He let this land out to the appellant as a tenant without a lease in writing at a monthly rental of Rs. 150 while he was a joint owner. Later a suit for partition was brought by Upendra against his co‑sharers, which ended in a compromise on 24th February 1950, as a result of which the suit‑land was allotted exclusively to the share of Radha Krishna Pal, to whom the appellant attorned and began to pay rent. The first such payment of rent was made for the month of February 1950, under the compromise as per counterfoil of rent bill (Exhibit 11) proved in the suit. He had been realizing the rent from the appellant as a monthly tenant since February 1950, and sold the disputed land to the respondent for valuable consideration on the 26th of March 1951. The respondent‑purchaser then by a notice dated the 4th April 1952 under section 106 of the Transfer of Property Act purported to terminate his tenancy at the end of the 30th day of April 1952, and asked him to vacate the land. As the appellant failed to vacate the land, the respondent filed the above‑mentioned suit for ejectment against him. The suit was contested by the appellant, and two of the issues, with which alone we are concerned, in the present appeal, framed in the suit were as follows: ‑ "(1) Is the defendant protected from eviction under the provisions of the East Bengal Non‑Agricultural Tenancy Act? (2) Is the suit maintainable without a proper notice to quit? Was the alleged notice duly served?" The learned Subordinate Judge discussed and decided both these issues while dealing with issue No. 2, and held that the appellant was a non‑agricultural tenant under the provisions of the Non- Agricultural Tenancy Act; that he held the land without a lease in writing, and was therefore, entitled to six months' notice under the provisions of section 9 of the East Bengal Non‑Agricultural Tenancy Act. He also held that the notice was duly served, but that his tenancy could not be legally terminated by the said notice and he could not be ejected except under the provisions of section 9 of the Non‑Agricultural Tenancy Act ; and he recorded a finding in favour of the appellant. But, while dealing with issue No. 1 separately, his finding is somewhat misleading when he states as follows: ‑ " This issue was not pressed. The defendant's learned pleader clearly stated that it being a lease without any writing he cannot claim any protection from eviction on account of his pucca structures on the suit land. It is answered in the negative." In view of his finding under issue No. 2 this finding appears to be misleading and contradictory, as the learned Subordinate Judge apparently has not been able to properly express himself. What he really meant was that he negatived only such portion of issue No. 1 as related to the defendant's claim to protection only on the ground that he had built pucca structures. But, as already held by him, the defendant was entitled to protection from eviction under section 9 of the East Bengal Non‑Agricultural Tenancy Act. Against the decision of the Subordinate Judge the respondent landlord preferred an appeal to the High Court and the, High Court relying on a previous decision of a Division Bench of the Court in 7 D L R 525 held that a monthly tenant, inasmuch as the phrase "a year of the tenancy" occurs in section 9 (1) (iii) of the Non‑Agricultural Tenancy Act, was not entitled to protection under that section, and in that view reversed the decision of the Subordinate Judge and decreed the plaintiff's suit for ejectment. It was urged in support of this appeal that a monthly tenant could claim to be a non‑agricultural tenant under section 2, subsections (4) and (5) of the Act ; that the notice by which the appellant's tenancy was terminated was insufficient in law under section 9 of the Act and that even under section 106 of the Transfer of Property Act the notice should have been for six months, as the land was used for manufacturing purposes. On the other hand, it was argued on behalf of the respondent that section 71 of the Act will apply‑to the case and as under section 106 of the Transfer of Property Act fifteen days' notice is sufficient to terminate the tenancy of a monthly tenant, the appellant's tenancy was lawfully terminated, and as there is no year of the tenancy in the present case, section 9 of the Act will not apply, and reliance was placed on the case in 7 D L R mentioned above, with which we shall deal later. The facts relating to this tenancy, as found by the Courts below, are: ‑ (1) That the appellant is a monthly tenant occupying the land in suit for more than one year and less than 12 years ; (2) that the appellant has been holding the land without a lease in writing ; (3) that the notice of ejectment purporting to terminate his tenancy at the expiry of 15 days was properly served and received by the appellant, and (4) that the appellant was using the land not for manufactur ing purposes, but was running a workshop for repairs and servicing of motor cars and refrigerators on the land. There is no dispute with regard to these facts before us. The only question, which needs decision by this Court, is whether in the circumstances the appellant could claim protection under the East Bengal Non‑Agricultural Tenancy Act, 1949, from ejectment. Section 2, subsection (5) of the‑ Act defines the non‑agricultural tenant as follows: ‑ " Non‑agricultural tenant means a person who holds 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 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 erected, 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 occupation." A monthly tenant therefore is included in the definition of a non‑agricultural tenant and is entitled to the rights given under this Act to a non‑agricultural tenant. In this case it is not disputed that the appellant held non‑agricultural land under the respondent with his consent and was liable to pay rent to him for the land. In the scheme of the Act the non‑agricultural tenants have been divided into two Gate‑cries, (1) non‑agricultural tenants, who have held land for a period of not less than twelve years, and (2) non‑agricultural tenants, who have held land for more than one year but less than twelve years. The tenant in the present appeal belongs to the second category. Certain higher rights are given to the tenants of the first category under section 7 of the Act, with which we are not concerned. Certain incidents of tenancies held for less than 12 years, to which category the tenancy in suit belongs, have been given in section 9 of the Act, the relevant portion of which is as follows: ‑ "(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, if any non agricultural land has been held for a term of more than one year but less than twelve years‑ (a) without a lease in writing, or (b) .. (c) .. then the tenant holding such non‑agricultural land shall be liable to ejectment on one or more of the following going and not otherwise, namely: ‑ (i) on the ground that he has used such land in a manner which renders it unfit for use for any of the purposes specified in section 4 ; (ii) . (iii) on the ground that the tenancy has been terminated try the landlord by six months' notice in writing expiring with the end of a year of the tenancy served on the tenant in the prescribed manner in the case of tenancies of the class specified in clause (a) Provided that a tenant shall not be liable to ejectment on the ground specified in clause (iii) except on payment of such reasonable compensation on account of the cost of removal of any structure erected or of any improvement effected on Arch land at the expense of the tenant or on other accounts not being the value of the land as may be agreed upon between the landlord and the tenant or if they do not agree, as may be determined by the Court on the application of the landlord or such tenant. (2) . In this case the appellant seeks protection under clause (iii) of subsection (I) of this section and the question is whether the appellant's tenancy could be terminated by fifteen days' notice in the circumstances of the case. In holding that fifteen days' notice was sufficient in law the High Court has merely relied on the decision of a Division Bench (if that Court in the case of Bengal River Service Ltd. v. Sree Murali Dhar Ray (P L D 1959 Dacca 659) and has disposed it of with the following observations: ‑ "The facts of this case are to a great extent similar to the facts in the case of Bengal River Service Ltd., referred to above. We are, therefore, of opinion that the above decision is fully applicable to this case and as such fifteen days' notice is quite legal and proper." While dealing with this point the learned Judges in the reported case, which has been followed, recorded their findings as follows: ‑ "As to the next point urged by the learned Advocate for the appellant regarding the validity of the notice served on the tenant, we find no substance in it, for it seems that the learned Judge is right in holding that the appellant was only a monthly tenant and there was no lease in writing ‑; and section 71 of the East Bengal Act XXIII of 1949, as rightly pointed out by Mr. Justice Ibrahim, does not anywhere say that the provisions of the Transfer of Property Act should not govern the case of a non‑agricultural tenant." Then after quoting section 71 and section 106 of the Transfer of Property Act the learned Chief Justice came to a finding on this point as follows: ‑ "As the tenancy in this case did not expire at the end of the year, the appellant was not entitled to six months' notice but fifteen days' notice." and the second Judge concurred with it. The rest of the judgment dealt with questions under sections 7, 88 and 98‑A of the Act, with which we are not concerned. It would appear that the learned Judges, who disposed of the Letters Patent Appeal, adopted the views of Ibrahim, J., who sitting as a single Judge, had disposed of .the Second Appeal, out of which the Letters Patent Appeal arose, and did not give any further reasons of their own for the view. It is, therefore, necessary to examine the judgment of Ibrahim, J., in Appeal from Appellate Decree No. 564 of 1951 decided on the 29th June 1953, on appeal from which the decision in the case of Bengal River Service Ltd. v. Sree Murali Dhar Ray was given and which has been relied upon by the respondent. The learned Judge opened his judgment with the following observations: ‑ "The facts, though in controversy at the earlier stages of the suit, are not in dispute now. The defendant‑respondent took a monthly lease and he is a non‑agricultural tenant within the meaning of that expression in the East Bengal Non‑Agricultural Tenancy Act of 1949." On the question of notice the learned Judge held as follows: ‑ "Clause (a) deals with tenancies created without any lease in writing. The tenancy in suit belong to this category. Now the phrase `a year of the tenancy' is wholly inappropriate to monthly tenant. A monthly tenant without a lease in writing who has not completed twelve years' possession, is not protected by this section, but is by virtue of section 71 governed by the Transfer of Property Act." The learned Judge then quoted section 71 and finally held: ‑ "The respondent is therefore liable to be evicted on fifteen days' notice." These are the only reasons given to support this finding, for which the learned Judges relied on the language of section 9 of the East Bengal Non‑Agricultural Tenancy Act, 1949, and of section 71 of the same Act. Section 9 has been quoted in an earlier part of this judgment and section 71 is as follows: ‑ "The provisions of the Transfer of Property Act, 1882, and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Act shall continue to apply to all tenancies to which the provisions of this Act apply." In doing so, the overriding provisions in both of them, namely, the expression "Notwithstanding anything contained in any other law for the time being in force or in any contract" in section 9 of the Act, and with regard to the application of Transfer of Property Act the expression in section 71 "in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Act" have been completely overlooked by the learned Judges, who dealt with the question of notice in the case of a monthly tenant, and section 106 of the Transfer of Property Act has been applied in its entirety in disregard of the exception imposed by the Bengal Act. Section 106 of the Transfer of Property Act must be read as being subject to section 9 (1) (iii) of the Act, which gives the same right to a monthly tenant as to other tenants, although `a year of the tenancy' in case of a monthly tenant does not follow from the Transfer of Property Act. In order to give effect to section 9 for the purpose of a notice of ejectment, a notional year of tenancy is to be supposed commen cing on the date of the inception of the tenancy under a landlord in question. In the present case, as has been found, the tenancy began on the 1st February. The notice in the case, therefore, should have been for six months and ended with the end of the month of January. As it was not so; it was invalid and could not legally terminate the tenancy under clause (iii) of subsection (I) C of section 9 of the Act. The result is that this appeal is allowed with costs throughout. The judgment and decree of the High Court, except the decree for arrears of rent, are set aside. A. H. Appeal allowed.