Decided on February 15,1983



C.K.Banerji, J. - (1.) This ig an appeal from the judgment and decree dated 11th May. 1981 passed by Shri S. N. Banerjee, Judge. XIII Bench of the City Civil Court at Calcutta in the ejectment suit herein instituted by the respondent, the landlord, against the appellant, the tenant, inter alia for the recovery of possession of the furnished ground floor Flat No. I at premises No. 11, Hungerford Street Calcutta,
(2.) The case of the landlord is that the appellant was a monthly tenant under him in respect of the said flat at a rent of Rupees 900.00 per month according to the English calendar. At the time of the inception of the tenancy the appellant became a tenant for a period of two years only commencing from 1st Mar., 1973 till the end of Feb., 1975, the terms and conditions whereof were recorded in a letter dated 12th Feb., 1973 written by the appellant to the landlord. At the request of the appellant the period of the said tenancy was extended by the landlord for a further period of two years commencing from 1st March, (975 and ending with the expiry of Feb., 1977 on the same terms and conditions as before which were recorded in a letter dated 1st Feb.. 1975 written by the appellant to the landlord. During the continuance of the said extended tenancy the appellant by a letter dated 3rd Jan., 1977 addressed to the landlord determined the said tenancy and agreed to vacate the demised flat and to make over possession thereof to the landlord with the expiry of the last day of Feb.. 1977, but in spite of such termination, failed and neglected to vacate the demised Hat and continued to be in wrongful occupation and possession thereof from 1st Mac., 1977.
(3.) The defence of the appellant as made out in the written statement filed by it is taut the appellant is a monthly tenant in respect of the said flat for an indefinite period which has not been determined by the appellant and the appellant still continues to be a monthly tenant under the landlord. The said tenancy commenced from 1st Mar., 1973. Under the dictation of the landlord and simultaneously with the creation of the said tenancy the appellant had to execute two lexers on the same day, dated 12th Feb., 1973 and 3rd Jan.. 1975. Neither any lease was created for two years nor was there any surrender or determination of such lease or monthly tenancy by the said letter dated 3rd Jan., 1975. In the aforesaid manner at the dictation of the landlord and under misconception of law and facts the appellant had to execute two letters dated 1st Feb., 1975 and 3rd Jan., 1977 on the same day. The letter dated 1st Feb., 1975 is Annexure 'B' to the plaint but the letter dated 3rd Jan., 1977 has not been annexed to the plaint although the same is alleged to have been so annexed. The letter dated 1st Feb., 1975 purporting to extend the said monthly tenancy by the landlord is misconceived and at the (no ?) effect inasmuch as the said monthly tenancy commencing from 1st Mar., 1973 for indefinite period is still continuing. A lease for two years could not be created orally or by a mere letter. The letter dated 3rd Jan., 1977 was misconceived and ineffectual as there was DO lease for two years. By the said letter the appellant merely stated that on the expiry of the lease for two years on the 28th February. 1977 the appellant would vacate but inasmuch as there was no lease for two years or any lease, which would expire on 28th Feb., 1977, the question of vacating the said flat on the expiry of any such lease did not arise. The said letter has not determined the said monthly tenancy of the appellant which commenced five years ago on and from 1st Mar., 1973 and has been still continuing. The suit is an maintainable and there is no cause of action for the same.;

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