Filing Eviction Suit Itself Constitutes Notice To Quit Under TP Act: Calcutta HC

The Calcutta High Court has fundamentally reinforced the principle that the mere institution of an eviction suit under general law functions as a valid notice to quit, stripping tenants of the technical defense regarding the absence of a prior formal notice under the Transfer of Property Act, 1882. In a decisive blow to prolonged unauthorized occupations, the Court ruled that once a lease expires and the tenant continues as a 'tenant at sufferance', the legal process of filing for recovery of possession sufficiently determines the tenancy.

In a verdict delivered by a Bench comprising Justice Debangsu Basak and Justice Aryak Dutt, the High Court set aside a Single Judge's order that had previously dismissed an eviction suit for want of cause of action. The Court clarified that the requirement of a prior notice under Section 106 of the Transfer of Property Act, 1882 is obviated by the very act of the landlord approaching the Court for eviction.

Key Takeaways

Suit Filing as Constructive Notice

In disputes governed by general law, the formal institution of an eviction proceeding is legally equivalent to a notice to quit, precluding dismissals based on the absence of pre-suit statutory notices.

Holding Over vs. Sufferance

Upon the expiration of a renewed lease term without a fresh registered deed, a tenant remains a monthly tenant by 'holding over', but becomes a 'tenant at sufferance' without right or title once the suit is filed.

Procedural Efficiency in Eviction

Appellate courts can exercise powers under Order XLI Rule 24 of the Code of Civil Procedure, 1908 to finally determine a suit and grant possession decrees if the evidence on record is sufficient, rather than remanding the entire matter.

Court's Rationale on Determination of Tenancy

The Bench scrutinized the Single Judge's findings which held the suit non-maintainable due to the lack of a Section 106 notice. Reversing this, the Court emphasized that since the original lease and its subsequent renewal had both expired by 1993, and no further registered deed was executed, the tenancy was clearly determinable.

The Court, in its reasoning, observed: "In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant."

The Court relied heavily on the precedent set in Nopany Investments (P) Ltd. v. Santokh Singh (HUF) and a recent Coordinate Bench decision in M/s. Xclusive Inn Private Limited & Ors. v. Anjana Guha & Ors. to establish that the plea of 'holding over' does not impede an eviction decree once the suit is filed.

Directions Issued by the Court

The Court has the following directions:

"The appellants are, entitled to a decree for recovery of khas possession of the suit property against the defendants and all persons claiming through or under them."

"Since the quantum of the mesne profits so payable cannot be determined upon the materials as they stand, we direct an enquiry into mesne profits."

"Mr. Sarosij Dasgupta, Advocate, Bar Library Club, (Contact No. 97489-19357), is appointed as Special Referee, who shall conduct such enquiry. The enquiry shall be taken up and concluded as expeditiously as possible and report to be submitted before the learned Single Judge."

"The decree for recovery of khas possession shall not await the conclusion of the enquiry and shall be executable forthwith."

Ratio

The institution of a suit for eviction under general law operates, by itself, as a notice to quit upon the tenant. Consequently, a tenancy governed by the Transfer of Property Act, 1882 stands determined upon the filing of such suit, and the absence of a prior formal notice under Section 106 of the Act does not render the suit non-maintainable or lacking in cause of action.

Background

The dispute originated from a 1946 registered lease deed for a property on AJC Bose Road, Kolkata, intended for a motion picture theatre. The original term expired in 1976 and was renewed via letter until 1993. However, no formal registered deed was executed for the renewal period. When the defendants failed to vacate, the plaintiffs filed a suit in 2002 for khas possession and mesne profits.

The Single Judge had dismissed the suit on the technical ground that the tenancy, being month-to-month, required a formal termination notice under Section 106 of the Transfer of Property Act, 1882. The High Court rejected this, along with the respondents' arguments regarding the death of a defendant and property merger, holding that the jural relationship was admitted and the filing of the suit was sufficient legal notice. The Court partially decreed the suit, granting immediate possession while remanding the issue of mesne profits to the Trial Court for an enquiry by a Special Referee.

Case Details:
Case No.: APD No. 14 of 2025 with IA/GA No. 1 of 2024
Neutral Citation: 2026:CHC-OS:393-DB
Case Title: Smt. Anindita Chowdhury & Ors. Vs. Gouri Shankar Pal & Ors.
Appearances:
For the Petitioner(s): Mr. Surojit Nath Mitra, Ld. Advocate General; Mr. Purnendu Das, Adv.; Ms. Gitika Mallick, Adv.
For the Respondent(s): Mr. Debdut Mukherjee, Adv.; Mr. Gaurab Kumar Das, Adv.; Mr. Amit Meheria, Adv.; Mr. S.P. Bramhacharik, Adv.

Source: 2026 CaseBase(CAL) 2571