SURYA PROPERTIES PRIVATE LTD Vs. BIMALENDU NATH SARKAR
LAWS(CAL)-1963-6-3
HIGH COURT OF CALCUTTA
Decided on June 19,1963

SURYA PROPERTIES PRIVATE LTD Appellant
VERSUS
BIMALENDU NATH SARKAR Respondents


Referred Judgements :-

REMON V. CITY OF LONDON REAL PROPERTY CO. LTD. [REFERRED TO]
WILLIAMS V. B.M.S.COAL CO. LTD. [REFERRED TO]
BARETT V. HARDY BROS [REFERRED TO]
JOHN LOVIBOND AND SONS LTD. V VINCENT [REFERRED TO]
CURI V. ANGELO [REFERRED TO]
NORTON V. WHITE [REFERRED TO]
INDIAN IRON AND STEEL CO. LTD. V. BAKER ALI [REFERRED TO]
LITTLE CHILD V. HOLT [REFERRED TO]
CUMMING V. DAMSON [REFERRED TO]
SEAFORD V. ASHER [REFERRED TO]
HEM CHAND V. SHAM DEVI [REFERRED TO]
RAI BRIJ RAJ KRISHNA VS. S K SHAW [REFERRED TO]
RAM KUMAR DAS VS. JAGDISH CHANDRA DEO DHABAL DEB [REFERRED TO]
BHAIYA PUNJALAL BHAGWANDDIN VS. DAVE BHAGWATPRASAD PRABHUPRA SAD [REFERRED TO]
AMARENDRA NATH VS. BIBHUTI BHUSON [REFERRED TO]
MURLIDHAR GARODIA VS. PURUSHOTTAMLAL JAIN [REFERRED TO]
KRISHNA PROSAD BOSE VS. SARAJUBALA DASSI [REFERRED TO]
ATUL CHANDRA LAHIRY VS. SONATAN DAW [REFERRED TO]
V R VERMA VS. MOHAN KUMAR MUKHERJEE [REFERRED TO]



Cited Judgements :-

BATTOO MAL VS. RAMESHWAR NATH [LAWS(DLH)-1970-5-37] [REFERRED]
SIDDHESWAR PAUL VS. PRAKASH CHANDRA DUTTA [LAWS(CAL)-1963-6-1] [REFERRED TO]
SURAYA PROPERTIES PRIVATE LTD VS. BIMALENDU NATH SARKAR [LAWS(CAL)-1964-3-19] [REFERRED TO]
SANTOSH KUMAR GUPTA VS. CHINMOYEE SEN [LAWS(CAL)-1966-5-15] [REFERRED TO]
PUNAMCHAND DAGA VS. SUBHKARAN DOSANI [LAWS(CAL)-1967-5-4] [REFERRED TO]
PUNAM CHAND DAGA VS. SUBHAKARAN DASSANI [LAWS(CAL)-1968-6-19] [REFERRED TO]
ABDUL GANI VS. MD ISRAIL [LAWS(CAL)-1968-6-27] [REFERRED TO]
PRAFULLA KUMAR DUTTA VS. GANESH CHANDRA BOSE [LAWS(CAL)-1972-7-3] [REFERRED TO]
MAHANANDA DAS KARMAKAR VS. BISWANATH DEY [LAWS(CAL)-1975-1-7] [REFERRED TO]
PRONATI MITRA VS. SACHINDRA NATH CHATTERJEE [LAWS(CAL)-1977-9-21] [REFERRED TO]
SUKHESH CHANDRA GHOSE VS. BINDU BASHINI DEBYA [LAWS(CAL)-1981-7-24] [REFERRED TO]
SAROJ KUMAR DE VS. RADHARANI SAHA [LAWS(CAL)-1982-8-8] [REFERRED TO]
MD SHAHARIYAR BAIG VS. R P BHAL [LAWS(CAL)-1986-4-46] [REFERRED TO]
DUKARI SAHA VS. KUMARISH CHANDRA GARAI [LAWS(CAL)-1989-4-11] [FOLLOWED ON]
BINANI PROPERTIES PRIVATE LTD VS. M GULAMALI ABDUL HOSSAIN AND CO [LAWS(CAL)-1966-8-12] [REFERRED TO]
DEBABRATA MUKHERJEE VS. KALYAN KUMAR RAY [LAWS(CAL)-1983-2-8] [REFERRED TO]
RATNAMALA DASI VS. RATAN SINGH BAWA [LAWS(CAL)-1988-4-10] [REFERRED TO]
BALASAHEB NANASAHEB GAIKWAD VS. MANAKCHAND MURLIDHAR BORA [LAWS(BOM)-1975-2-18] [REFERRED TO]
ALISAHEB ABDUL LATIF MULLA VS. ABDUL KARIM ABDUL REHMAN MULLA [LAWS(BOM)-1980-9-16] [REFERRED TO]
KEMPRAJ VS. KRISHNAPPA [LAWS(MAD)-1995-9-60] [REFERRED TO]
NIRANJAN PAL VS. CHAITANYALAL GHOSH [LAWS(PAT)-1964-4-5] [REFERRED TO]
LEENA ROY CHOUDHARY VS. INDUMATI BOSE [LAWS(PAT)-1979-3-1] [REFERRED TO]
PURUSHOTTAM DAS BANGUR VS. DAYANAND GUPTA [LAWS(SC)-2012-10-71] [REFERRED TO]
MANINDRA NATH MITRA VS. AJIT KUMAR GHOSH [LAWS(CAL)-1989-6-46] [REFERRED TO]
DHARSIBHAI PANACHAND SHAH VS. SAMARATBAI LILACHAND SHAH [LAWS(BOM)-1975-12-32] [REFERRED TO]
N.A. RAMANATHA IYER AND ORS. VS. BATHUL BAI AND ORS. [LAWS(MAD)-1971-3-60] [REFERRED TO]
MANINDRA NATH MITRA VS. AJIT KUMAR GHOSH [LAWS(CAL)-1989-5-53] [REFERRED TO]
NARKANDESHWAR MAHADEOJI MEHRAJ INSTALLED VS. GOPAL DASS AND OTHERS [LAWS(ALL)-1968-8-41] [REFERRED]
HINDUSTRAN PETROLEUM CORPORATION VS. SATISH CHANDRA JAIN [LAWS(ALL)-2019-10-177] [REFERRED TO]


JUDGEMENT

Bose, C.J. - (1.)This reference arises out of a suit for ejectment brought by a landlord against the tenant on the ground that the tenant had constructed without the consent of the landlord a brick built room on the roof of the tenanted premises and had thereby done an act contrary to the provisions of clause (p) of Section 108 of Transfer of Property Act. It is alleged in the plaint that the tenancy was terminated by a notice dated 18th July, 1956, calling upon the defendant to give up possession on the expiry of the last day of August 1956. The defence State up in the written statement is that a small temporary tin shed was constructed on the roof upon the existing walls with the consent of the plaintiff and on an increment of rent of 5%. The defendant further challenges the validity and sufficiency of the notice of termination of the tenancy and also pleads that the said notice dated 18th July, 1956 was waived and/or withdrawn by a subsequent notice to quit dated 24th August, 1956, expiring with the end of September, 1956.At the hearing of the suit before the Court of Small Causes, Calcutta the following issues were raised :-
"(1). He the defendant erected upon the premises in suit by permanent structure within the meaning of clause (p) of Section 108 of the Transfer of Property Act without the consent of the plaintiff company? If so, has the plaintiff company given its subsequent consent to such erection by increasing rent?

(2). Has the notice of ejectment dated 18th July, 1956, been served upon the defendant determining the tenancy in suit? If so, does the notice stand waived and withdrawn by notice dated 13th August, 1956?

(3). What relief, if any, is the plaintiff company entitled to?

(2.)The learned trial Judge answered the first issue by holding that a small room with 3" brick be considered as a permanent structure as it could easily be removed at any time. With regard to the second issue the learned Judge held that two notices had been served on the defendant but the first was one of termination of tenancy under Section 106 of the T.P. Act and the second was a notice as contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, but the second notice was not a notice of ejectment and therefore there was no waiver of the first notice by the second. In view, however, of the finding on the first issue it was held that the plaintiff was not entitled to any relief in the suit. An appeal was preferred against the decree of the trial Court to this Court and the learned Judges of the Division Bench before whom this appeal came up for hearing felt that the question arising for determination were of considerable importance and they made a requisition to me under proviso (ii) Rule 1, Chapter II of the Appellate Side Rules for consideration of two questions by a Special Division Bench. The questions so referred are as follows :-
"(1) What is a permanent structure for purposes of clause (p) of Section 108 of the Transfer of Property Act? What, if any, are the tests for holding what a particular structure fails within the mischief of the above clause? Whether a room with "two inches thick brick built walls and a corrugated iron sheet roof" is a permanent structure within the meaning of the aforesaid statutory provision?

(2) What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956? Is it a notice to quit or a notice of suit or a combined notice, to answer both the above purposes? Is it a notice, required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any, are its necessary elements or contents? Is it necessary to mention in it the ground or grounds of ejectment under the aforesaid Act, on which the suit is to be brought? Or, in other words, need it be a notice of such grounds?"

(3.)The second question which has raised problems of no little difficulty may be dealt with first. The second question is composed of several parts and the first matter to be considered whether a notice contemplated in Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 is a notice to quit or a notice of suit or it is a combined notice to answer both the above purposes. It is, therefore, essential to set out the text of Section 13 (6) which is as follows :-
"Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in clauses (j) and (k) of that, sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy."



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