A tenancy by "holding over" under Section 116, T. P. Act, arising on the determination of a "lease in writing" constitutes holding of "non-agricultural land" "without a lease in writing", as contemplated by the West Bengal Non-agricultural Tenancy Act, 1949.

( 1 ) THIS is the tenant's Second Appeal arising out of a suit for ejectment. The suit was dismissed by the trial Court on the ground that "the defendant's tenancy is non-ejectable falling under Section 7 (5) of the Non-Agricultural Tenancy Act 20 of 1949". On appeal that decision was re-versed by the learned Subordinate Judge who held that "the defendant cannot claim the advantage of Section 7 (5) of the Act. " Hence this Second Appeal by the tenant whose principal contention is that he is protected under Section 9 (1) (b) (iii) of the said Act 20 of 1949 (The West Bengal Non-agricultural Tenancy Act, 1949 ). This contention was also raised before the learned Munsiff but it was rejected by him. In the judgment of the learned Subordinate Judge there is no reference to this statutory provision and, possibly, this point was not urged before him and the arguments were concentrated on the other section, viz. , section 7 (5 ). As, however, the point (which is ground No. 1 in the Memorandum of Appeal to this Court) arises on facts which are now admitted by both parties, I have allowed the defendant-appellant to raise it in this Court, and, having entertained it, I have also given the plaintiff-respondent full opportunity to meet the same.

( 2 ) SHORN of unnecessary details, the undisputed facts, as they stand at present, may be stated as follows:

( 3 ) THE suit land which measures only one cottah in area is recorded in the Settlement Records as C. S. plot No. 4591 of Mouza Chinsurah. It has been found to be "non-Agricultural land" within the meaning of West Bengal Act 20 of 1949 and both parties have accepted that position. The defendant's tenancy started under a kabuli-yat, dated 6-1-1929, corresponding to the 23rd Jaistha, 1336 B. S. , which was for a period of five years, viz. , 133s B. S. to 1340 B. S. , i. e. , from 1st Baisakh 1336 B. S. to the end of Chaitra, 1340, B. S. As the kabuliyat was before the amended Section 107, T. P. Acb, it is not hit by the third paragraph of the said section. There was thus a valid lease between the parties for a period of five years expiring with the end of Chaitra 1340 B. S. and, as, admittedly, there was payment and acceptance of rent and continuance of the tenant's possession after the determination of the said lease, there was "holding over" under Section 116, T. P. Act and the defendant's tenancy was renewed from month to month under Section 106 of the said Act. The rent was accepted duly upto 1350 B. S. Prom however, 1351 B. S. the plaintiff refused to accept rent and, in August, 1351 B. S. corresponding to the beginning of Baisakh 1356 B. S. , he served on the tenant a 15 days' notice to quit purporting to terminate the tenancy with the expiry of the said Bengali month. On 19-9-1949, the present suit was instituted. The defence material for our present purpose is the tenant's claim of protection under Section 9 (1) (b) (iii), West Bengal Non-agricultural Tenancy Act, 1949, there being admittedly no "six months' notice" "expiring with the end of a year of the tenancy", as contemplated in the said Clause (iii ).

( 4 ) THE short point which thus arises for consideration is whether the defendant's tenancy by "holding over" is "without a lease in writing" within the meaning of the West Bengal Non-agricultural Tenancy Act, 1949. In other words, the question is whetner a tenancy of "non-agricultural land" by "holding over" under Section 116 T. P. Act, arising on the determination of a "lease in writing" -- the registered kabuliyat for 5 years in the present case -- constitutes holding of "non-agricultural land" "without a lease in writing", as contemplated by the said Act. If the answer be in the affirmative, this appeal must succeed and the plaintiff's suit fail under Section 9 (1) (b) (iii) of the Act as, admittedly, the suit land "has been held" by the defendant "for a term of more than one year but less than 12 years" and there has been no "six months' notice", as pr