Calcutta High Court
Golap Soondory Dossee vs Golam Ali Mundul on 8 March, 1882
Equivalent citations: (1882)ILR 8CAL612
JUDGMENT Cunningham, J.
1. In this case the plaintiff states that her husband had a permanent tenancy of seventeen bighas at a rent of Rs. 4-4; that, in 1286, the principal defendant (who is a tenant under the pro formâ defendants) dispossessed her, and she prays for possession of the property by declaration of her right.
2. The first Court found (i) that there was no evidence as to any grant commencing the plaintiff's husband's tenancy, and that the plaintiff could claim occupancy rights only under Section 6 of the Rent Act; (ii) that no rent was paid to the owners from 1281 to 1285; (iii) and that, consequently, the plaintiff's husband had forfeited his occupancy rights.
3. The lower Appellate Court found that the plaintiff's husband had a right of occupancy and acquiesced, apparently, in the finding that no rent was paid for five years. But the Judge considers that, as the plaintiff's husband, and after his death, the plaintiff, were in possession of the property, the mere non-payment of rent for live years did not justify re-entry on the part of the landlord, inasmuch as Section 22 of the Act provides that no tenant having a right of occupancy shall be ejected otherwise than in execution of a decree or order. This part of Section 22 is, however, only applicable to cases in which the tenant has a subsisting right under Section 6, and upon the facts found we consider that the plaintiff is not entitled to a decree according to her prayer giving her possession on declaration of her rights as an occupancy tenant. Whatever rights Section 22 may confer on occupancy tenants, we do not think that the intention can have been that where a tenant abandons his holding and ceases to pay rent for five years, his landlord should not be able to put another tenant in possession without recourse to the formality of a suit. Section 6 of the Act expressly limits the duration of occupancy rights by the words "so long as he pays the rent payable on account of the same," and we think that distinct abandonment and cessation to pay rent disentitle the tenant from enforcing the rights which he may formerly have enjoyed. We, therefore, admit the appeal, and restore the finding of the original Court with costs.