MD. TABIBUR RAHMAN MOLLAH Vs. MD. SAYEDUR RAHMAN

JUDGEMENT

(1.) In this appeal by special leave the question raised is whether the appellant is a "non-agricultural tenant" within the meaning of section 2(5) of the Non-Agricultural Tenancy Act, 1949 and is entitled to protection under section 7 of the said Act.

(2.) Respondents-plaintiffs filed Title Suit No. 51 of 1965 in the 3rd Court of Munsif, Jessore, for ejectment of the appellant and recovery of khas possession of the suit land. The suit land lies within the Jessore Municipal Area and it admittedly belongs to the plaintiffs. Their case is that the defendant-appellant was their monthly bharatia-tenant in respect of the structures thereona tin shed hut and two golpata huts at a monthly rent of Tk. 15/- which was subsequently raised to Tk. 20/- per month. The plaintiffs require the suit land for constructing pucca structures for their own use; in due course they served a notice under section 106 of the Transfer of Property Act upon the defendant terminating the tenancy, but he did not vacate the premises. Defendant (No. 1) contested the suit by filing a written statement. His case is the original bharatia tenancy ceased to exist when the structures were destroyed by fire. He then took lease of the vacant suit land under a written agreement at the monthly rent of Tk. 15/- and constructed a C.I. sheet hut thereon with his own materials, to which he added a pucca privy later on. The new tenancy, he contends, is in respect of the suit land which is a non-agricultural land, he is not a bharatia tenant in respect of the structures, he has been in possession of the land for ever 30 years and as such he is protected from eviction except on the ground of violation of the terms of the tenancy as laid down in section 7(5) of the Non-Agricultural Tenancy Act.

(3.) The trial Court on consideration of evidence found that after destruction of the original tenancy by fire a new bharatia tenancy more or less on the same terms and conditions was created. That suit land was not leased out, but on the vacant suit land the defendant constructed a tin shed with his materials but with "landlord's permission" on condition that he would regularly pay monthly rent for his use and occupation of the huts and would vacate the land and remove the structures whenever the landlord required the land for making pucca construction. On these findings, the trial Court decreed the suit directing his ejectment subject to his right to remove his materials used in constructing the huts. On appeal, the learned Subordinate Judge reversed the findings and held that since the structures were constructed with the tenant's own materials and since the lease Agreement, Ext. B, refers to "lease of the land itself", the tenant was in fact a non-agricultural tenant for a period of over 12 years, and as such he is protected from ejectment under section 7 of the Non-Agricultural Tenancy Act. On this finding the appeal was allowed and the suit was dismissed. But the learned Single judge of the High Court Division in second appeal (S. A. No. 894 of 1968) reversed the lower Appellate Court's decision and restored that of the trial Court, thus, finally decreeing the suit for ejectment.