RAMESH CHANDRA DAS Vs. ATUL CHANDRA SARKAR
LAWS(GAU)-1958-2-1
HIGH COURT OF GAUHATI
Decided on February 17,1958

RAMESH CHANDRA DAS Appellant
VERSUS
Atul Chandra Sarkar Respondents




JUDGEMENT

G.MEHROTRA, J. - (1.)THIS is plaintiff's appeal arising out of a suit for ejectment. The suit land, according to the plaintiff, originally belonged to Khatija Bibi who has been impleaded as pro forma defendant No. 1 in the suit and Nejifar Rashman - -her husband who has been impleaded as pro forma defendant No. 2. The husband used to manage the land for her. On the 20th -December, 1944, the defendant No. 1 sold the suit land to the plaintiff under a registered sale deed and she delivered possession. The principal defendant Atul Sarkar took the land from the proforma defendants under a lease dated 18th March, 1941 for 10 years at a monthly rental of Rs. 2/8/ -. The rent was to be payable within the 1st week of the next month. The lease began from March, 1942.
There was a provision in the lease that after the end of the period of 10 years, defendant Atul Sarkar will be entitled to remain in the suit land on a new Bandobasta only. On his failure to get the renewal of lease, he will have to remove his houses at his own cost. During the pendency of the lease, the plaintiff became the owner of the property under the sale deed dated 20th December, 1944. The plaintiff, after the sale, admitted the contesting defendant as his tenant and he paid him the rent for the suit land upto August, 1950.
But subsequently he committed default in payment of the rent. The land is now needed by the plaintiff for his own possession and therefore he served a notice on 11th February, 1952 to the principal defendant before the expiry of 10 years to give up the possession of the suit land. On 19th February, 1952, the defendant replied to the notice intimating his intention to get renewal of the lease of the land for another 10 years on the same terms and conditions. Thereupon the plaintiff brought the suit for the ejectment of the defendant and also has claimed the arrears of rent with compensation amounting to Rs. 99/ -.
(2.)THE suit was brought on the 22nd April, 1952. The defence taken was that the notice was not proper and valid and was not properly served on him and that the defendant was entitled under the terms of the earlier lease to get the renewal of the lease in his favour. He cannot thus be ejected from the land as he has already expressed his option to take the land on lease for a fresh period of 10 years. The Munsiff held in favour of the defendant on both the grounds.
The lower appellate court accepted the contentions of the defendant that he was not liable to be ejected as he had a right under the terms of the earlier lease to get the renewal of the lease. As he had, in pursuance of the terms of the lease, expressed his intention to take a fresh lease he could not be ejected from the land. The lower appellate court further held that in the absence of any express terms in the lease, the defendant will have a right to have a fresh lease on the same terms and conditions as the earlier lease.

Two contentions have been raised before us by the counsel for the appellant. Firstly it is urged by him that no right in the land has accrued to the defendant under the terms of the old, lease. It was not a valid answer to the suit for ejectment that he had a right to get the fresh lease in his favour under the terms of the old lease. His remedy was to file a suit for the specific performance, but he cannot resist the suit for ejectment on that ground.

Particularly in the present case, it was urged that the terms of the lease were very vague and thus he could not even file a suit for the specific performance of the contract. Secondly it was urged that even if the deed can be said to contain a term of renewal, unless the appellant could successfully invoke the aid of Section 53A of the Transfer of Property Act, he cannot, on the strength of the lease, resist the suit for ejectment. Section 53A of the Transfer of Property Act does not apply to the present case and moreover it has not been specifically pleaded in the written statement.
Relying upon the case of Girindra Ch. v. Kamini Nath Roy, AIR 1949 Assam 78 (A), the lower appellate court accepted the contentions of the defendant. That was a case where the trial court had dismissed the suit against the defendant No. 1. The defendant had taken a settlement of the land from the plaintiff for a period of 5 years from 1347 B.S. and had agreed to pay Rs. 50/ - as rent per annum. At the determination of the lease by efflux of time, the plaintiff served a notice asking the defendant to vacate the land as he required it for his own possession. At the expiry of the notice, a suit was brought against the defendant No. 1.
The defence taken was that he was not liable to be evicted as the plaintiff had agreed by the terms of the old lease to give him an option of renewal of the lease. A few days before the expiry of the period of the lease, a notice had been sent by the defendant to the plaintiff stating that he was prepared to take a fresh lease in accordance with the terms of the agreement as to renewal. The notice was however ignored and the suit was brought. On these facts it was held that under the terms of the lease, an option of renewal was given to the lessee and as he had expressed his intention to take the lease, it was not open to the plaintiff to bring a suit for ejectment. Reliance was placed by this Court on a Calcutta case reported in Hemanta Kumari Debi v. Sefatulla Biswas, AIR 1933 Cal 477 (B).

(3.)THE main contention raised by the appellant is that after the efflux of time under the provisions of the Transfer of Property Act, the defendant was liable to be evicted and unless the defendant can take the benefit of Section 53A of the Transfer of Property Act, the express provisions of the Transfer of Property Act cannot be ignored and the suit for ejectment cannot be defeated.


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