The New Nation - Internet Edition

APPELLATE DIVISION (Civil)

Mohammad Fazlul Karim-J

Md. Tafazzul Islam-J.

Amirul Kabir Chowdhury-J.

CIVIL PETITION FOR LEAVE TO

APPEAL No. 429 of 2005

(From the judgment and order dated 04.12.2004 passed by the High Court Division. in Civil Revision No.1261 of 2000.)

Md. Sirajul Haq

…………..Petitioner.

Vs.

Md. Abdul Halim and another

………t.. Respondent.

For the Petitioner: Mr. Farooq Ahmed, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent

No.1

Mr. N. I. Bhuiyan, Advocate-on- Record. Not represented.

Respondent No.2 :

Judgment: March 18, 2007

Preluises Rent Control Act, 1991 Section 18-Eviction of tenant on ground of default in payment of rent-Sale of possession by tenant is not recognised in law-Notice u/s 106 TP. Act upon Sub-tenant is not necessary. Decree passed by the High Court Division is upheld by the apex court.

There is no dispute that the defendant No.1 Sree Shyamal Kumar Paul was the tenant of the plaintiff-respondent No.1. The claim of that present petitioner (defendant 2) is that he purchased possession from the defendant No.1 and on the basis of such claim he contested the Suit. It may be mentioned that the defendant No.1. admitted tenant of the plaintiff did not contest the suit ……………(Para 13)

Be that as it may, notwithstanding the practice, even if any, prevalent in the town of Mymensingh allowing sale of possession by a tenant in favour of any person, the law does not recognize any such sale of possession and the vendee thus does not acquire any valid right as a Tenant…………… (Para 15)

In such view of the matter, we are of the clear opinion that no notice under Section 106 of the Transfer of Property Act is required to be given to such unauthorised person occupying any premises who is loosely regarden as sub-tenant …………(para 15)

In the instant suit the High Court Division found that the defendant-petitioner cannot be regarded as a tenant under the plaintiff and that the tenant defaulted in payment of rent with effect from May 1996 and as such was liable to be evicted and hence correctly decreed the suit.

………………. (Para 16)

The learned Single Judge of the High Court Division paid due consideration to the fact and circumstances and arrived at the decision in accordance with law and thus reversed the judgement of the trial Court and decreed the suit legally……… (Para 17)

JUDGMENT

AMIRUL KABlR CHOWDHURY-J:

Defendant petitioner Md. Sirajul Haq in this petition seeks leave to appeal against the judgment und order dated 04.12.2004 passed by the High Court Division in Civil Revision No.1261 of 2000 making the Rule absolute reversing the judgment and decree dated 30.01.2000 passed by the learned Senior Assistant Judge, Sadar, Mymensingh in Suit No.1 of 1998.

2. The respondent No.1 as plaintiff instituted above suit stating, inter-alia, that the suit shop was let out to the father of the defendant No.1 on monthly rental basis and on his death the defendant' petitioner became a tenant at will who started doing his business in the suit premises paying monthly rent at the rate of Tk. 2,000/- and he paid rent upto April 1996 but thereafter defaulted in payment of rent with effect from May 1996 and thus rendered himself liable to be evicted and that the plaintiff respondent issued notice under Section 106 of the Transfer of Property Act upon the defendant and so the relationship between the plintiff and the defendant as landlord and tenant was terminated and that the plaintiff came to learn that the defendant sub-let the premises in favour of the defendant No.2 illegally.

3. Be that as it may, the defendant failed to vacate the premises in spite of notice under Section 106 of the Transfer of Property Act. Hence was the suit.

4. The suit was contested by the defendant No. 2 who got himself impleaded in the suit as the defendant No 2 filing application under Order 1, Rule 10, Code of Civil Procedure.

5. The aforesaid defend No 2 also filed a written statement stating, inter-alia, that he was not a sub-tenant but according to trade practice at Mymensingh town possession of rented premises could be made over on payment of lump sum amount and the defendant No.2 was thus a purchaser of possession, of the suit premises and thus became tenant of the premises and that no notice was issued upon him terminating the tenancy and the there was no cause of action for the suit and the suit was liable to be dismissed.

6. The trial Court recorded evidence of parties and dismissed the suit.

7. The High Court Division by the impugned judgment and order reversed the aforesaid judgment and decreed the suit.

8. Hence is this petition.

9. In support of the petition Mr. Farooq Ahmed, learned Counsel submits, inter-alia that the High Cruet Division committed error in failing to consider that the defendant No. 1 Sree Shyamal Kumar Paul sold the possession of the suit premises to the defendant No.2 on 05.05.1993 and there was no 'notice upon him under Section 106 of the Transfer of Property Act· and so the trial Court correctly dismissed the suit.

10. He further submits that in the absence of notice under Section 106 of the Transfer of Property Act upon the defendant No.2 the present suit ought to have been dismissed.

11. He lastly submits that in Mymensingh town the possession of shop premises is allowed to be sold and the vendee purchasing possession of the premises become legal tenant of the landlord and in the instant case the defendant No.2 to the knowledge of the plaintiff purchased possession from the defendant No 1 and as such became a tenant and is thus entitled to protection under Section 18 of the Premises Rent Control Act.

12. We have considered the submissions and perused materials on record.

13. There is no dispute that the defendant No.1 Sree Shyamal Kumar Paul was the tenant of the plaintiff-respondent No.1. The claim of the present petitioner (defendant 2) is that the purchased possession from the defendant No. 1 and on the basis of such claim he contested the suit. It may be mentioned that the defendant No 1, admitted tenant of the plaintiff did not contest the suit.

14. Be that as it may, notwithstanding the practice, even if any, prevalent in the town of Mymensingh allowing sale of possession by a tenant in favour of any person, the law does not recognize any such sale of possession and the vendee thus does not acquire any valid right as a tenant.

15. In such view of the matter, we are of the clear opinion that no notice under Section 106 of the Transfer of Property Act is required to be given to such unauthorised person occupying any premises who is loosely regarded as sub-tenant.

16. In the instant suit the High Court Division found that the defendant-petitioner cannot be regarded as a tenant under the plaintiff and that the tenant defaulted in payment of rent with effect from May 1996 and as such was liable to be evicted and hence correctly decreed the suit.

17. The learned Single Judge of the high Court Division paid due consideration to the facts and circumstances and arrived at the decision in accordance with law and thus reversed the judgment of the trial Court and decreed the suit legally.

18. In view of the discussion made above, we do not find any merit in this petition.

The petition is dismissed.