TMI Blog1954 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... was dispossessed by the defendant on 9-2-1945. 2. The defence is one of a right of tenancy which it is said has not been determined. The defendant contends that one Hatu Shaikh took permanent settlement of some lands including the land in dispute in April 1934, and that Hatu Shaikh who exercised possession thereafter and regularly paid rent sold half of the land covered by the jama to the present defendant on 26-3-1942. It is said that some time after that on partition between Hatu Shaikh and the defendant the present plot fell in the defendant's share and the defendant has since then been in possession thereof. The defendant also denied that the plaintiff had acquired any title by purchase. 3. The trial Court held that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Court below has erred in law in holding that there was a tenancy and secondly that even if there was a tenancy, it should have held that it was merely a tenancy which the parties intended was determinable at the will of either party and that it had been so determined. 5. Mention may be made of an amalnama which was sought to, be put in evidence but was rightly rejected by both the Courts as it was not registered. 6. On behalf of the respondent, Mr. Chatterji has however asked us to hold that this must be considered to be a lease of immovable property other than a lease from year to year or for a term exceeding one year or reserving a yearly rent and has been made by oral agreement. At first sight, it is difficult to accept the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy has to be presumed. 7. It is necessary to mention in this connection an argument raised on behalf of the appellant that the finding of the Court below as regards payment of rent should be discarded inasmuch as its: judgment on this was not a proper judgment of reversal. Special stress is laid on the fact that the appellate Court did not take into consideration the criticism by the trial Court of Ex. B(l) that though it purports to show a payment of rent in 1345 B. S. the year 1348 B. S. is mentioned at the top of the document. It is necessary to remember however that Bon-behari Hazra, who claims to be an officer of Annada Prosad Saha Choudhury and thereafter of Bithaldas, lias given evidence as regards realisation of rent agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenancy should be presumed in favour of the defendant under Ahibhusan and his predecessors the only question that remains is as regards the duration of the tenancy. On this, the defendant relies on the provisions of Section 106, Transfer of Property Act, under which in the absence of a contract or local law or usage to the contrary, a lease of immovable property for residential purpose shall be deemed to be a lease from month to month, terminable, on the part of cither lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Against the argument that the intention of the parties clearly being that the lease should be permanent and not one from month to month there is no scope for operation of S. 106, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
