Haripria Debi vs Ram Churn Myti And Anr. on 25 March, 1892

Calcutta High Court
Haripria Debi vs Ram Churn Myti And Anr. on 25 March, 1892
Equivalent citations: (1892) ILR 19 Cal 541
Author: P A Hill
Bench: Prinsep, Hill


Prinsep and Hill, JJ.

1. This was a suit brought by one of two proprietors of some nij-jot land to eject a tenant after service of notice. After considerable delay in consequence of more than one remand by the Lower Appellate Court (we think the proceedings might have been somewhat shorter), the plaintiff has obtained a decree in the terms of Section 155 of the Bengal Tenancy Act for ejectment of the tenant, in the event of his not paying within six months from the date of the decree a certain sum fixed as compensation in consequence of waste committed by him in breach of the terms of his contract.

2. The plaintiff appeals, contending that she is entitled to an absolute order for ejectment; and the defendant makes an objection under Section 561 of the Civil Procedure Code that the plaintiffs suit should have been dismissed, inasmuch as plaintiff is only one of two joint landlords, and therefore, debarred by Section 188, Bengal Tenancy Act, from suing separately.

3. We are of opinion that the plaintiff was not so barred, and that the case does not come within the terms of Section 188. The right under which the plaintiff sues is not a thing which she, as landlord, is under the Bengal Tenancy Act, required on authorized to do. The suit is brought under the contract law on breach of the conditions of a lease by the tenant. This disposes of the objection taken by the respondent.

4. The plaintiff’s pleader contends that under the notice served by the plaintiff in Magh, she is entitled to eject the defendant, being a tenant-at-will on nij-jot land, and the ejectment is sought not merely on the ground of waste and breach of contract, but also on the ground of the termination of the tenancy. It seems to us that the notice is not a good notice so as to entitle the plaintiff to what she seeks. It requires the defendant to quit the lands occupied by him within six months from the date of the receipt of the notice. Now, if it be regarded as a notice of the termination of the lease, which, as we understand it, was an annual lease, it would be terminable only at the end of the year, and this would be some months later than the expiry of six months from the date of the service of the notice. We think, however, that the notice was intended, as it has been treated by both the Lower Courts, as a notice of ejectment in consequence of breach of contract by the waste committed. We agree also with the Lower Appellate Court that the case should be dealt with under Section 155, Bengal Tenancy Act, and that, until the tenancy has been formally terminated by legal proceedings by declaring the lease at an end by reason of the expiry of the term for which it ran, the tenant is entitled to the benefit of Section 155. The appeal is, therefore, dismissed with costs.

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