Calcutta High Court (Appellete Side)
Ajit Kumar Mandal vs Asharani Maity on 9 February, 2023
36 09.02.2023 SAT 414 of 2011
D Hira
Ct-08
Ajit Kumar Mandal
Vs.
Asharani Maity
None appears on behalf of the parties, nor any
accommodation is sought for on behalf of the
appellants.
The appeal is arising out of the judgment and
decree dated 20th June, 2011 passed by the trial court
affirming the judgment and order of the learned Civil
Judge, Junior Division in a suit for eviction.
We have read the judgment of both the courts.
The title suit no. 50 of 2006 and the Title Suit
No. 193 of 2006 were heard analogously.
The plaint case in T.S. No. 50 of 2006 is similar
to the written statement in Title Suit No. 193 of 2006
and the written statement in title Suit no. 50 of 2006
is similar to the plaint case. The title Suit no. 193 of
2006 was filed by the land lady for eviction and that
suit was heard first. The land lady has sought for
eviction of Ajit from the co-schedule premises on the
ground of default and obnoxious behavior of the
appellant.
The plaintiff alleged that Ajit was inducted as a
monthly tenant in respect of Ka schedule property.
The defendant paid rent upto the month of May, 2005
and thereafter, did not make any payment. The
defendant alleged to have locked the Ka schedule
premises and the common entrance gate on 3rd
March, 2006 thereby preventing the plaintiff from
entering the other portion of the suit property. The
defendant was habitual defaulter. The plaintiff duly
terminated the tenancy by an advocate's notice dated
3rd July, 2006. Thereby terminating the tenancy on
the expiry of the month of July, 2006. Ajit filed a
written statement. He disputed the description of the
suit property and service of notice under Section 106
of the Transfer of Property Act. It was alleged that
due to good relationship no formal document of
creation of tenancy was prepared nor receipts for
payment of rent was obtained by the defendant. The
agreement for tenancy was of one year but there was
option for renewal. It was alleged that one Dilip
Kumar Maity was a retired teacher and he proposed
to open a partnership business and for that purpose
Rs.2,16,000/- by cash and Rs.1,70,000/- by draft
were paid to him for purchasing a machine for
excavating soil. These facts have been suppressed.
On the basis of the pleadings the trial Court
framed six issues.
Both the parties have adduced oral and
documentary evidence.
The trial Judge upheld the notice under Section
106 of the Transfer of Property Act. It was further
observed that notice clearly describes the true identity
of the suit premises and it was also admitted by the
defendant in his reply to the said notice. In so far as
the default of payment of rent was concerned the
plaintiff claimed that the defendant was a monthly
tenant since April 2005 at a rent of Rs.7000/-. The
defendant claimed that he was inducted since 1998
and written agreement for tenancy was executed in
the month of April 2005 for one year with option of
renewal.
The written agreement for tenancy was not
produced by either of the parties. The suit for eviction
was not based on none payment of rent. In absence
of any agreement for lease, determination of lease by
forfeiture cannot be presumed. It is true that in the
notice under Section 106 of the Transfer of Property
Act it was stated that the appellant did not pay rent
on and from June 2005 to July 2006 aggregating to
Rs.9800/-. The parties have agreed that the tenancy
was to be governed by the Transfer of Property Act.
Once the appellant admits that he is a tenant under
the provision of Transfer of Property Act. He is liable
to be affected from the premises on the expiry of
period of notice under Section 106 of the Transfer of
Property Act. The appellate court has rightly noticed
that in the instant case notice was issued for eviction
simplicitor and it does not make out a case for
eviction on the ground of forfeiture clause, in fact,
forfeiture clause could not be presumed as the written
agreement not produced by either of the parties. The
benefit of Section 114 of the Transfer of Property Act
would apply only to those cases where the landlord
invokes a forfeiture clause and determines the lease
and sues to eject the tenant. (See. Arulmigu Karkoti
Amman Temple represented by its Executive v. N.
Krishnaswami; 1990(1) CCC 165: R. Baskar Bhat v.
Hindustan Petroleum Corporation Ltd. & Ors.; AIR
2002 Mad 330: Yashpal Lala Shiv Narain v. Allatala
Tala Malik Waqf Ajakhan Mus; AIR 2006 All 115:
Geetabai Namdeo Daf v. B.D. Manjrekar; AIR 1934
Bom 400)
In view of the aforesaid we do not find any
reason to admit the second appeal it does not contain
any substantial question of law.
The appeal stands dismissed.
There shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
