A notice to quit served on a non-agricultural tenant holding without a lease in writing must be for six months expiring with the end of the year of the tenancy, as per section 9(1)(b)(iii) of the West Bengal Non-Agricultural Tenancy Act.

1. THIS appeal, at the instance of the plaintiff, is directed against an appellate decree affirming the decree of a learned Munsif.

2. ACCORDING to the plaintiff, he is the landlord of 4 cottahs 10 chittaks of Bastu land in Mouza Baranagore, District 24 Parganas. The defendant took settlement of the said land from the plaintiff agreeing to pay a monthly rent of Re. 11/- In evidence of the settlement, the defendant executed a Kabuliyat in favour of the plaintiff. The period of tenancy fixed under the Kabuliyat was for five years. The Kabuliyat bears the date 20th Agrahayan, 1s46 B. S. (corresponding to December 6, 1939) and was registered according to law. Inducted in the manner aforesaid the defendant raised a hut on the land and continued in occupation.

3. THE period of the tenancy, fixed under the Kabuliyat, expired in Kartick, 1351 B. S. Thereafter the defendant tenant held over. The defendant became a defaulter in payment of rent from Kartick, 1356 B. S. to Chaitra, 1357 B. S. It was in these circumstances that the plaintiff caused service of a notice, dated September 2, 1950, (corresponding to 16th Bhadra, 1357 B. S.-Ed.) on the defendant, terminating the tenancy with the expiry of the month of Chaitra, 1357 B. S.

4. IN the suit, out of which this appeal arises, plaintiff claimed ejectment of the defendant, arrears of rent and mesne profits. The defendant took a number of defenses with all of which I am not concerned at the present moment. The defense with which I feel concerned is whether the notice to quit was bad not being in conformity with the West Bengal Non-Agricultural Tenancy Act.

5. THE trial court dismissed the claim for ejectment and mesne profits but passed a decree fur arrears of rent in favour of the plaintiff. The reasons which weighed with the learned Munsif in dismissing the claim of the plaintiff are hereinafter stated:

(a)"the bastu in suit is admittedly within the Baranagore Municipality to which the provisions of the West Bengal Non-Agricultural Tenancy Act XX of 1949 apply. Admittedly the defendant took settlement of the bastu land in suit for residential purposes for a limited term of 5 years by this registered lease, dated 6. 12. 39 (Vide Ext. 4. The present plaint was filed in this court on 4. 5. 51. Thus apart from any other consideration, 11 years, 4 months and 28 days passed from the date of this lease to the date of the institution of this suit. That being so, whether the defendant has been holding over or possessing this bastu on a new settlement, her tenancy is governed by the provisions of section 9 of the aforesaid Act."

(b) "we get. from sub-section (5) of section 7 of the aforesaid Act XX of 1949 that if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, when such structures have been raised before or after the expiry of the period of the lease, then the tenant, holding such land shall not be evicted except on the ground that he used the land in a manner which renders it unfit for use for the purposes of the tenancy".

(c) "evidence admittedly goes to show that the defendant has been living in the suit land by erecting pucca structures. The structures comprise bed rooms, one kitchen, one verandah, one pucca court-yard, pucca walls round the house, pucca well, pucca service privy, etc."

(d) "it is further clear that the plaintiff allowed these structures to be raised by the defendant during the continuance of the lease in writings That being so, the defendant is not liable to be evicted except on the ground of misuse of the tenanted land, rendering the same unfit for the purposes of the tenancy. But this is not the ground of ejectment according to the plaintiff."

6. THE plaintiff appealed to the lower appellate court. It was contended before the lower appellate court that the Kabuliyat dated December' 6, 1939, executed by the tenant defendant alone and purporting to create a lease for a ter