The assent required by section 116 of the Transfer of Property Act must be a voluntary assent. Where the lessor's right to eject the non-agricultural tenant is temporarily restricted by a statute, the assent required by section 116, Transfer of Property Act, which must be a voluntary assent, is not and cannot be present.

1. THIS is a plaintiff's appeal in a suit for recovery of Khas possession on the ground that the defendants' lease has expired by efflux of time and that thereafter the defendant has been continuing in possession without any lease in writing. The subject matter of the appeal is an area or 6 cottahs of land in C. S. Plot No. 665 or Mouza Panza Sahapur. The facts which are relevant for the purposes of this appeal are not in dispute and they are as follows :-The Bhukailash Ward's Estate granted a registered lease to the defendant for a term of three years from the 1st Agrahan, 1345 (corresponding to 16th November, 1938) upto the 30th Kartick, 1348 (corresponding to the 15th November, 1941 ). On the 15th of August, 1944 the Bhukailash Estate was released by the Court of Wards and on 15th May, 1947 there was a partition amongst the co-owners of the Bhukailash Estate, as a result of which the land in dispute in this appeal together with certain other lands was allotted to the exclusive share of one Satyendra Ghosal. On the 15th October, 1947 Satyendra Ghosal sold the land in dispute to the plaintiff. It is admitted that though the term or the defendant's lease expired on the 15th of November, 1941 (corresponding to the 30th Kartick, 1348) rent was paid by the defendant and accepted by the lessor right upto the end of Aswin, 1354 (corresponding to the i3th October, 1947 ). On the 29th August, 1949 the plaintiff instituted the suit, cut of which this appeal arises without serving any notice to quit upon the defendant.

2. THE plaintiff's claim is that the defendant was in occupation of the land in dispute under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940) which placed a temporary bar upon the ejectment of non-agricultural tenants and that bar was removed on the 5th May, 1949 when the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) came into operation and since the latter Act does not require a notice to be served, the defendant is liable to be ejected without service of a notice to quit.

The defendant contested the suit, inter alia, on the ground that alter the expiry of the registered lease executed in her favour by the Court of Wards she was holding over on payment of rent and as such had acquired a tenancy right without a lease in writing. Under section 9 (1) (b) (iii) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) the defendant was not liable to ejectment except on the ground that her tenancy had been determined by the lessor by a six months' notice in writing expiring with the end of the year of the tenancy.

3. BOTH the Courts below have dismissed the plaintiff's suit on the ground that the defendant is a non-agricultural tenant holding without a lease in writing and as such she is not liable to be ejected without a six months' notice as required by section 9 (1) (b) (iii ). Against that decree the plaintiff has filed this appeal.

4. THE primary point for the appeal is whether the case falls under section 9 (1) (a) or section 9 (1) (b) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949 ). If it falls under section 9 (1) (b) there is no doubt that under the previsions of sub-clause (iii) the lessor is not entitled to eject without service of a six months' notice ending with the year of the tenancy. If on the other band the case is governed by section 9 (1) (a) no notice is required to be served. In order to determine the main point a second point has also to be considered and that is whether the defendant has acquired a tenancy right by holding over under the provisions of section 116 of the Transfer of Property Act. If the defendant has acquired the right of a monthly tenant by holding over, she must be regarded as a tenant holding without a lease in writing within the meaning of section 9 (1) (b) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949 ). If on the other hand she has not acquired any right under section 116,