A tenant who has constructed a permanent structure on the land of the tenancy for residential or business purposes within five years from the date of the lease is protected from eviction under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, even if the structure is destroyed by an event beyond the control of the tenant.

PATHAK, C.J. (Acting):- This appeal is directed against the judgment and decree passed by the Assistant District Judge on 13-11-75 in Title Appeal No. 62 of 1968 affirming the judgment and decree passed by Munsiff No. 2, Gauhati in Title Suit No. 11 of 1968 dated 15-5-68.

2. This matter was earlier heard by learned single Judge and same was referred to a Division Bench to consider the interpretation of S.5 of the Assam Non-Agricultural Urban Areas Tenancy Act of 1955 (hereinafter the Act). When the matter was last heard by a Division Bench, the appeal was again referred to a larger Bench in order to consider the interpretation put in S.11 of the Act in respect of notice for ejectment and that is how this matter has been heard by this Bench. This appeal arises out of a suit of 1960. Considering this aspect, we have decided to finally dispose of the matter on merit.

3. A brief narration of the fact is that the respondent lessor filed a suit for recovery of the possession of lease land by evicting the appellant the lessee. The case of the plaintiff in brief is that the defendant took lease of 2 Kathas and 10 laches of land from the plaintiff at an annual rental of Rs. 30 for a definite period of seven years by executing a registered deed. It was stipulated that if at the end of the lease period the land was not required by the plaintiff, the defendant might obtain a fresh lease and if it be necessary to plaintiff to sell the land, the defendant would have an option to purchase it at the proper price. The defendant also purchased a house of temporary structure from the plaintiff and started residing there. But in Fagun of 1364 B.S. fire gutted that house of the defendant. They the plaintiff issued notice on defendant asking the latter to purchase the land within ten days of the receipt of the notice at Rs. 5,000 per katha which was according to the plaintiff, the price offered by other intending purchasers. The defendant replied that he would purchase it at the end of the lease period. The period of lease expired on 31-12-1959. The plaintiff issued a notice dated 11-12-1959 asking the defendant to make over the vacant possession of the land on 1-1-60. But the defendant did not do so, hence the suit was instituted on 12-1-60 for ejectment together with compensation of Rs. 12 for unauthorised accupation.

4. The defendant by filing written statement contested the suit. He denied some of the averments of the plaint and pleaded inter alia that the suit is not maintainable being barred by waiver, estoppel and acquiescence and bad for defect in the requisite notice. The defendant stated that he improved the land at a cast of Rs. 480 and built a house of permanent structure which was unfortunately gutted by fire. Even thereafter the defendant raised other permanent structures on the same land. The defendant refers to para 8 of the lease deed and asserts that according to that stipulation the plaintiff is bound to sell his land to the defendant or to give a fresh lease at the expiry of the old lease. The defendant asked the plaintiff orally and by service of notice to sell his land to the defendant at proper price, but he failed to do so. The defendant also seeks protection from ejectment u/s.5 of the Assam Non-Agricultural Urban Areas Tenancy Act. He also contends that the suit is bad for non-Joinder of the State of Assam as a party to whom the defendant has mortgaged his lease-hold right.

5. On the pleadings of the parties as many as seven issues were formulated. Out of these issue, the relevant issues for consideration in this appeal are issues Nos. 2 and 5 and they read as follows :-

"2. Whether the notice of ejectment is valid and sufficient?

5. Whether the defendant is protected u/s.5 of the Assam Non-Agricultural Urban Areas Tenancy Act? The trial Court on consideration of issue No. 2 decided it in favour of the plain- tiff. In deciding issue No. 5 the learned trial Court answered the issue in negative and against the defendant.