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Appeal from Appellate Decree No. 334 of 1966, decided on 20th January 1967.

‑No evidence on record regarding actual purpose for which premises leased out --Question: whether tenancy had been obtained for manufacturing purpose‑Test.

In order to decide whether a tenancy had been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing, purpose it cannot be held that mere user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the Transfer of Property Act, 1882. Conversely, in the absence of any other evidence to the contrary, a long user for a manufacturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose. The decision on the point rests on facts and circumstances of case concerned.

M. H. Khandkar with Md. Yahya for Appellants.

M. A. Rouf for Respondent No. 1,

This appeal raises a very simple question. A suit was instituted by plaintiffs for eviction of defendants from the premises which are, admittedly, used for the purpose of a manufacturing business. It is unnecessary, for disposal of this appeal, to set out the details of the plaintiffs' case which was in ejectment of defendants on various grounds.

The suit was contested by defendant No. 1 who traversed the averments made by the plaintiffs. So for as the present appeal before me is concerned, it will be sufficient to state that one of the defences taken by him was, that the premises having been leased out for the purpose of manufacturing jewellery, it could not be terminated by fifteen days' notice on the footing that he is merely a monthly tenant. The contention is that under section 106 of the Transfer of Property Act, plaintiff was required to serve a notice covering a period of six months in order to validly terminate the tenancy even if the rents are payable monthly.

The learned Munsif, who tried the suit, decreed the same on the ground that the tenancy itself was monthly tenancy and that a notice for fifteen days was sufficient.

Against the aforesaid judgment and decree passed by the learned Munsif, defendant preferred an appeal which was heard by a Subordinate Judge of Khulna. Before the learned Subordinate Judge the argument gyrated round the question as to whether the purpose for which the lease was obtained in respect of the premises was for manufacturing jewelley. It seems that the learned Courts below were content to confine themselves to decisions which were cited before them and to passages from legal text‑books without a proper examination of the evidence in the case. The learned Subordinate Judge held that the suit premises were obtained on lease by the defendant for the purpose of manufacturing jewellery. He, therefore, allowed the appeal and set aside the judgment and decree passed by the learned Munsif. The suit was thus dismissed. Hence this appeal.

At the hearing of this appeal, it was contended before me that the suit was hit by the provisions of section 106 of the Transfer of Property Act inasmuch as the premises were obtained on lease for the purpose of manufacturing jewellery. An attempt was made to cite cases before me. I think, it is useless to look into the decisions which are, if I may say so with respect, right decisions on the peculiar facts and circumstances of the cases concerned. Before me, however, there is a blackout of evidence as to the actual purpose for which the premises were obtained by the defendants. There are certain circumstances which tend to show that it may have been obtained for the purpose of manufacturing jewellery but there is hardly sufficient evidence to prove the same.

In order to decide whether a tenancy has been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing purpose, it cannot be held that mere user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the said Act. Conversely, in the absence of any other evidence to the contrary, a long user for a manu facturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose. The crucial point, however, is: For what purpose was the lease obtained

Since I feel that defendants may, perhaps be in a position to establish such a case and that the 'Courts below have misdirected themselves on this point, I allow this appeal and set aside the judgments and decrees passed by both the Courts below. I direct that this case be sent back on remand to the trial Court for a re‑trial of the suit in accordance with liberty to the plaintiffs to amend the plaint and to the defendants to file an additional written statement, if so advised. If the plaint is altered, plaintiffs would be at liberty to lead additional evidence only on fresh averments on the point stated above, namely, what was the purpose for which the lease was obtained. If the defendants file additional written statement, they will also be at liberty to adduce fresh evidence on the same point and on such point alone. I make no order as to costs of this appeal.

Let the records of this case be transmitted to the trial Court with utmost expedition. It is further directed that the trial Court should dispose of the suit as early as possible.

K. B. A.

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