Sarjoo Prosad, C.J.
1. The appeal relates to a suit for ejectment, which was tiled by the plaintiffs-appellants. The plaintiffs claim to have purchased the disputed land from one Musst. Forhtunnessa Begum on 2-9-1950 along with other lands. At the time of the purchase, the defendant is said to have been in occupation of the suit land measuring one katha, comprised in a part of Dag No. 3923, as a tenant under the vendor.
The vendor and after purchase, the plaintiffs also served a notice on the defendant to vacate the land in suit where he had some temporary structures of bamboos and thatches standing for residential purposes. The notice to quit asked the defendant to vacate the land by 31-1-1956, but as he refused to do so, the plaintiffs filed the suit. The defendant pleaded that the area occupied covered one katha 6 lechas and not a katha as alleged by the plaintiffs.
According to the defendant, therefore, the suit was bad for splitting up the tenancy. The defendant also claimed that the houses standing on the land were of a permanent nature and therefore, he was protected from eviction under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act 1955 (Assam Act XII of 1955). The defendant further submitted that the notice to quit was illegal and the tenancy had not terminated.
2. The learned Munsiff decreed the suit. On appeal by the defendant, the decision has been reversed by the learned Subordinate Judge resulting in the dismissal of the suit The learned Subordinate Judge concurs with most of the material findings of the learned Munsiff. He found, as did the learned Munsiff that there was no splitting up of the tenancy; that the area occupied by the defendant, which was only a part of Dag No. 3923, was one katha only; that there was good cause of action for the suit, as the defendant had refused to vacate the premises in spite of the repeated notices; and that the defendant was not protected under Section 5 of the Assam Act XII of 1955, because the structures on the land could not be regarded as permanent structures within the meaning of that section. The only point on which he differed and dismissed the suit is that the notice to quit was illegal. It is, therefore, convenient to dispose of this question first before dealing with any other point in the case.
3. The learned Subordinate Judge observes that on the terms of the notice, the tenancy was terminated on 31-1-1956; but this could not be legal. According to him, the tenancy commenced from 1-1-1950, relying upon the recitals in Exhibit B, an unregistered document, which purported to be a deed of lease; and under Section 110 of the Transfer of Property Act, 1882, which he thought was applicable, the date from which the lease commenced had to be excluded.
He further points out that on the expiry of the lease, which was for a term ending on 31-12-1950 there was no fresh lease and as the lessee held over, the tenancy, which according to him also must be held to be one from month to month, could not be terminated by a notice to quit on 31-1-1956. He relied in this context upon a decision of this Court in Haridas v. Sailendra Chandra, AIR 1953 Assam 202, which, in my opinion, does not solve the problem.
There it was held that the year or the month of the tenancy at the end of which a notice under Section 108 of the Transfer of Property Act should expire is not the calendar year or month in which the notice is given, but the period is to be calculated with reference to the commencement of the tenancy. This principle is beyond question; but the main point in this case is whether Section 110 of the Transfer of Property Act would apply to a case, where the tenancy has been found to be a tenancy from month to month and where the tenancy cannot be deemed to have commenced under any valid periodic lease in which the tenant on the expiry of the term held over.
It is on these points that the learned Subordinate Judge has fallen into error. The appellants learned Counsel rightly contends that Exhibit B was clearly inadmissible; having regard to the valuation of the property, the document had to be registered and it was not open to the learned Subordinate Judge to look into the document for the purpose of ascertainment of the date of commencement of the tenancy and for the period during which the lease was to operate, in order to apply Section 110 of the Transfer of Property Act.
Therefore, the date of commencement of the tenancy could not be excluded. These were the main terms of the alleged periodic lease under the unregistered document, which could not be looked into for those purposes; and the learned Subordinate Judge was in error in treating them as mere collateral purposes in order to exclude the date of commencement of the tenancy under Section 110 of the Transfer of Property Act. The tenancy must be held, therefore, to be a monthly tenancy from its very inception depending on an oral lease to which Section 110 was not attracted.
That where the lease is unregistered, and inadmissible as such, even if it is a periodic lease, it must be held to be a tenancy from month to month from its very inception, is covered by the authority of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23. In that case, Mukherjea, J., as he then was, observed that the Prodhan's patta was a void and inoperative document and conferred no right on the defendant.
As such, the Kabuliyat executed by the defendant could not operate as a lease under the Transfer of Property Act; but by payment and acceptance of rent, a new tenancy was created dehors the kabuliyat and as the new tenancy was for building purposes, it was a tenancy from month to month under Section 106 of the Transfer of Property Act, terminable by fifteen days' notice.
The doctrine of holding over under Section 116 of the Transfer of Property Act could not apply to such a case as from its very inception, the tenancy should be taken to be a tenancy from month to month. He also repelled the contention that the periodic lease should be taken to be operative at least for one year certain and the tenant should be deemed to be holding over thereafter, also respectfully agree with the decision in Carrara Marble and Terrazo Co. Ltd. v. Charu Chandra Guha, (S) AIR 1957 Cal 357, where after a careful review of the law on the point, the learned Judges held that Section 110 of the Transfer of Property Act has no application to a tenancy from month to month.
Section 110 applies only to leases for a term. Therefore, where a monthly tenancy commenced on the 1st day of a month, it could be properly and validly determined by service of a notice expiring on the last day of the subsequent month. The appellants rely on my judgment in Dharani Baid v. Sadhu Charan Ram Biswakarma, (S) AIR 1956 Assam 20. The facts there were different. There the tenancy commenced under a valid registered document for a definite period and thereafter, the tenant held over. In those circumstances, it was held that Section 110 of the Transfer of Property Act was applicable.
The learned Subordinate Judge, therefore, erred in applying Section 110 of the Transfer of Property Act to the circumstances of this case and holding that the notice to quit was invalid. It is not seriously disputed that if Section 110 did not apply, then the notice served on the defendant was a valid notice to quit.
4. The most serious contention on which the decree of the Court below is sought to be supported is on the amendment of the definition of permanent, structure in Section 3 (d) of the Assam Act XII of 1955. It is argued that if the said definition is held to be retrospective as the principal Act is vide Harsukh Sarawgi v. Mashulal Khemani, AIR, 1957 Assam 22, then the defendant is entitled to the protection of Section 5 of the said Act.
Section 5 provides that notwithstanding any contract or law to the contrary, where a tenant is entitled to build and has built, within a period of five years from the date of contract, a permanent structure on the land of the tenancy for residential or business purposes, the tenant shall not be ejected except on the ground of non-payment of rent. The words 'permanent structure' as defined in Section 3 (d) of the Act meant 'a structure which is regarded as permanent in that locality.' The definition was apparently vague and led to confusions and the legislature amended the definition in Section 3 (d) of the principal Act as follows :
' 'permanent structure' means a structure made of cement-concrete, stone, brick, iron, aluminium, asbestos or wood or any combination of these materials.'
Provided that a building with bamboo or ikra walls and thatched roof shall also be regarded as a permanent structure, if its frame is constructed of any of the materials mentioned above.' This amendment came into force on 26-/-1958, during the pendency of the appeal before this Court. It is contended that if this definition is adopted as governing the case of the parties, the defendant is protected from eviction. The learned Advocate-General, who appears for the appellants, resists the argument.
According to him, the definition has no retrospective operation, because the amending Act came into force on the day of its publication with immediate effect and there are no words to show that it was intended to be retrospective. I am unable to sustain this argument of the learned Advocate-General for the reasons that I gave for holding that the principal Act itself was retrospective, there being no words of limitation either in the Act or in the amendment.
The case of K.C. Mukerjee v. Mt. Ramratan Kuer, 63 Ind App 47 : (AIR 1936 PC 49) directly covers this case. There also, certain new sections were introduced in the original Act by an amending Act and although it was not said specifically on the terms of those sections that they were intended to be retrospective, it was held that they were so. Moreover, the definition clause is merely an explanatory clause of the words, contained in Section 5 of the principal Act. Originally, the definition was somewhat vague : it has since been more particularised. Therefore, it should be held to be retrospective as the main Act itself. I am, therefore unable to accept the contention of the learned Advocate-General and hold that the amended definition has retrospective effect.
5. Even so, the question arises whether the decree can be sustained, in the light of the amended definition. It is conceded in the plaint that the defendant was in occupation of the suit land for residential purpose; but it is said that he was allowed to do so by constructing temporary kutcha structures and huts, with bamboo posts and walls and straw roofs and kutcha latrines and that after notice of eviction the defendant made clandestine preparations for erection of pucca and semi-pucca structures with corrugated iron sheet roofs with a view to change the nature of the structure.
The defendant, however, says that be got settlement of the land for residential purpose by constructing pucca structures, which he accordingly did and has been residing there ever since for over the last 15 years. He denied that he made any clandestine changes in the nature of the structures on receipt of the notice for eviction as alleged by the plaintiffs; because according to him, the standing structures were already of a permanent nature within the meaning of Section 5 of the Act.
Unfortunately, the findings on the point are not quite adequate to dispose of the question whether the standing structures are permanent within the meaning of the amended definition. We accordingly think that the case should go back to the Court below for disposal according to law in the light of the observations made by us in this judgment. If it is held that the structures are permanent, the defendant would be protected from eviction under Section 5 of the Act; otherwise, the suit for eviction would have to be decreed.
It would not be open to the parties to agitate any other point in the case which is now concluded by this judgment. If the Court thinks fit, it may take any additional evidence that may be necessary to decide the question now under consideration.
6. The appeal is, therefore, allowed, the decree of the learned Subordinate Judge is set aside and the case remanded to him for disposal as directed : Costs in the case will abide the result of the decision by the Court below.
Mehrotra, J.
7. I agree.