R.S. Bindra, J. -
(1.) THIS second appeal arises out of a suit instituted by Uma Kanta Das Mahajan for eviction of Tribeni Prasad Kalawar from a piece of land which had been let out by the former to the latter on 20th May, 1955, for a period of three years until 20th May, 1958. The suit for eviction was preceded by a notice calling upon the defendant to vacate the land on 20th November, 1960. The defendant resisted the prayer for his eviction on the grounds that the eviction notice served on him was defective in law. and that since he had set up structures on the land he could be evicted only on the ground of non -payment of rent, a fact not alleged by the plaintiff. This latter plea was founded on Section 5 of the Assam Non -Agricultural Urban Areas Tenancy Act, 1955, hereinafter called the Act. The trial Court settled a number of issues between the parties and after examining the evidence led before it decreed the suit by its judgment dated 22 -4 -1965. The defendant challenged the decree of the trial Court by taking the matter in appeal to the court of the Assistant District Judge, Barpeta. The appeal was allowed on 6 -4 -1971 and the plaintiff's suit dismissed with the findings that the notice of eviction served on the defendant did not correspond witty the provisions of Section 106 of the Transfer of Property Act and that since the defendant was not a defaulter in the matter of payment of rent, he was immune from eviction in view of the second proviso appended to sub -section (1) of Section 5 of the Act. This proviso was added in the year 1968 by the Assam Non -agricultural Urban Areas Tenancy (Amendment) Act, (Act XVI of 1968).
(2.) IT is commonly admitted by the parties' learned Counsel that the second proviso added by Act XVI of 1968 has been held to be void by a Full Bench decision of this Court and on that account the learned Assistant District Judge was not justified in holding that the defendant was immune from eviction for the reason that the landlord had not pleaded that the tenant had defaulted in the matter of payment of rent. The two questions that fall for determination in this appeal, in my opinion, are (1) whether the notice Ext. 5 is valid in law, and (2) whether any permanent structures had been raised on the demised land, and if so. whether the defendant cannot be evicted in view of lack of any allegation that he had defaulted in the matter of payment of rent.
(3.) THE notice Ex. 5 was served on the defendant on 25th October, 1960, and it called upon him to vacate the land by 20th Nov., 1960. It is the common case of the parties that the lease agreement Ext. 3 concluded between them on 20 -5 -55, permitted the defendant to continue as a tenant for a period of three years up to 20th May, 1958. The parties' counsel are also agreed on the point that the tenancy in favour of the defendant continued for another two years after 20th May, 1958. which means that the tenancy continued until 20th May, 1960, Thereafter, the parties' counsel are agreed, the tenancy became monthly, beginning with 21st of the month and ending with the 20th of the succeeding month. The notice Ext. 5, as Stated earlier, called upon the defendant to vacate the land on 20th November, 1960. Sri Dam. the learned counsel representing the defendant, has urged vehemently that since the defendant had the right to continue in possession of the land until 12 P. M. of 20th November, and since the plaintiff called upon the defendant to vacate the land on the 20th November, itself, the notice fell short of the requirements of Section 106 of the Transfer of Property Act. That section states that every notice served on the tenant must be of fifteen days "expiring with the end of the month of tenancy". Undeniably, the tenancy was to end with the end of the day of 20th November, 1960. and it could not spill over even for a moment into 21st November, 1960. If therefore the plaintiff called upon the defendant per notice Ext. 5 to vacate the land on 20th November, 1960, I cannot find any fault with the notice. The notice clearly meant that the defendant could avail of the whole day of 20th November and vacate the land before the dawn of 21st November. A Division Bench of this court held in the case of Ananta Ojha v. Osimuddin,, AIR 1952 Ass 132, that the legal connotation of the expression "to quit on a particular day" is that the person required to quit can remain in occupation till the midnight of that day if he so desires. and that consequently where a month to month tenancy expires on the 30th September, a clear fifteen days' notice to quit "on the 30th September" is a perfectly valid notice. Apart from the fact that I entirely agree with this decision of the High Court. I am also bound by it because sitting singly I cannot ignore it, it being a Division Bench decision. Sri Dam has invited my attention to one unreported judgment of the Supreme Court of which a reference is made on page 739 of the Encyclopaedia, Vol. 4 J to V, 1966. However, in my opinion that decision of the Supreme Court does not help advance the contention of Sri Dam. There the tenancy expired on the 9th of a month and the notice given was to vacate on "10th of May, 1946 (after 12 O'clock in the night)". The Supreme Court held that what the notice clearly meant was that the tenant should vacate the property on the midnight between 9th and 10th of May, 1946 and that as such the notice was valid. In our case too. as held by me above, the defendant could have retained the possession of the land until the last moment of 20th November. 1960, and nothing said in the notice deprived him of that privilege. At the same time, I feel clear that the defendant could not have retained the land for a single moment after the day of 20th November, had run out. Consequently, I hold, in disagreement with the first appellate court, that the notice served on the defendant was valid in the eye of law.;