Decided on October 31,2001

Santosh Kumar Das Appellant
Hajee Badiur Rahman Respondents


MD.FAZLUL KARIM,J. - (1.) This appeal by leave is at the instance of plaintiff-appellant who filed the suit for ejectment, arrear of rents and compensation stating, inter alia, that the defendant-respondent was a monthly tenant at a rental of Taka 300 per month as per agreement dated 15-8-1971. Although the tenancy commenced from 15th August 1971 by mutual agreement between the parties the monthly rent was paid according to English calendar month upto month of September 1973. The premises was also required for bonafide use of plaintiff who have served notice under section 106 of the Transfer of Property Act on 18-1-1974 determining the monthly tenancy on the expiry of 28th day of February. 1974 by registered post which was refused by the defendant on 26-1-1974 whereupon the plaintiff was constrained to file the suit. Defendant respondent contested the suit asserting inter alia, no notice under section 106 of the Transfer of Property Act was served on him and the same is also invalid and illegal. He was not a tenant under the plaintiff in respect of the suit premises and he was not a defaulter as he has been depositing monthly rent in HR Case No. 30 of 1974 and the plaintiff has no bonafide requirement of the premises in question.
(2.) The trial Court decreed the suit and on appeal the same was affirmed. Thereafter the respondent moved the High Court Division in revision and the Rule was made absolute dismissing the suit disturbing the concurrent finding of fact as to notice under section 106 of the Transfer of Property Act.
(3.) On perusal of the impugned judgment it appears that the High Court Division arrived at the findings that: I have considered the above submissions of the learned Counsel for the opposite party. From his submission it is clear that he wants to down gave (sic) Exhibit 1, which is a bilateral document between the parties. If the contention of the learned Counsel for the opposite party is accepted that payment of rent was made according to the English calendar month, then it is not understood what prevented the opposite party from serving the notice under section 106 of the Transfer of Property Act terminating the tenancy with the expiry of the 15th day of the month. The learned Counsel for the opposite party has no possible explanation for this nor has he any explanation as to why Exhibit 2 was issued on 18-1-1974. In my opinion, the opposite party has been in a fix which path he will tread or which course he will follow in the matter of service of notice. I am in full agreement what has been submitted by the learned Counsel for the petitioner. The opposite party is required to keep himself within the confines of Exhibit l. He cannot whimsically vary or alter its terms and conditions. He cannot work out a period of his own choice for termination of determination of the tenancy in utter violation of the terms as set further in Exhibit 1. So in my view. Exhibit 2 is not a valid and legal notice under section 106 of the Transfer of Property Act in the matter of determination and termination of the tenancy of the petitioner. In view of the facts and circumstances of the case and for the reasons stated above, the judgment and decree complained of are not tenable in law. They, therefore, are set aside and the suit of the opposite party dismissed. ;

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