The Calcutta High Court clarified that a landlord need not serve a separate notice to quit under Section 106 of the Transfer of Property Act, 1882 before instituting an eviction suit against a tenant holding over after lease expiry; the suit itself constitutes the requisite notice. This overturns the single judge’s dismissal of the suit for lack of cause of action and restores the landlord’s right to recover possession and mesne profits.
Background & Facts
The Dispute
The appellants (plaintiffs) sought recovery of khas possession of premises No. 124A, Acharya Jagadish Chandra Bose Road, Kolkata, which had been leased to the original defendant for use as a motion picture theatre. The lease, executed on 17 May 1946 for thirty years, was renewed by letter dated 7 June 1976 for a further seventeen years, ending on 14 April 1993. No formal deed was executed after the renewal, and rent was last accepted for March 1993. The defendants continued in possession thereafter as tenants holding over.
Key Facts
- The suit property was demised by registered deed of lease dated 17 May 1946 for a term of thirty years, intended for a motion picture theatre.
- A subsequent registered instrument introduced an option of renewal.
- The original term expired on 17 May 1976.
- By letter dated 7 June 1976 (Exhibit-F) the parties agreed to renew the lease together with the building and structures for a further period of seventeen years: ten years from 17 November 1976 and seven years thereafter, ending on 14 April 1993, at a rent of Rs. 1,475 per month. No formal deed of lease was ever executed thereafter.
- Rent was last accepted for the month of March 1993.
- The original defendant did not deliver possession; the suit was instituted in the year 2002 (CS No. 279 of 2002).
- The plaintiffs claimed recovery of khas possession and a decree for Rs. 1,34,16,000 for wrongful occupation till 24 June 2002, alternatively mesne profits.
- The learned Single Judge dismissed the suit on 27 February 2024, holding that no cause of action existed because the tenancy was month-to-month under Section 106 of the Transfer of Property Act, 1882 and no notice to quit had been served.
Procedural History
- 2002: Original suit (CS No. 279 of 2002) filed before the trial court.
- 27 February 2024: Single Judge passed judgment and decree dismissing the suit and directing parties to bear their respective costs.
- 12 June 2025: Appellants filed Appeal No. APD 14 of 2025 with IA/GA No. 1 of 2024 before the Division Bench.
- 09 September 2026: Hearing concluded.
- 16 September 2026: Judgment delivered.
Relief Sought
The appellants sought:
- Quashing of the Single Judge’s order dated 27 February 2024.
- Direction for recovery of khas possession of the suit property.
- Decree for mesne profits from the date of institution of the suit until delivery of possession.
- Costs of the appeal.
The Legal Issue
The central question was whether, under Section 106 of the Transfer of Property Act, 1882, a landlord must serve a separate notice to quit prior to filing a suit for eviction when the tenant is holding over after the expiry of a lease, or whether the institution of the suit itself constitutes such notice.
Arguments Presented
For the Appellants
The appellants contended that the filing of an eviction suit under general law operates as a notice to quit on the tenant, relying on the Supreme Court’s decision in Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728, and the Division Bench’s judgment in M/s. Xclusive Inn Private Limited & Ors. v. Anjana Guha & Ors. (FAT 270 of 2023) dated 9 July 2026. They argued that no prior notice under Section 106 was required, and that the Single Judge’s reliance on the absence of such notice was legally unsustainable.
For the Respondent
The respondent (defendant No. 11) argued that the tenancy, being month-to-month after lease expiry, is governed by Section 106 of the Transfer of Property Act, 1882, which mandates a notice to quit before termination. Since no such notice was served before the suit, the suit disclosed no cause of action and was rightly dismissed. The respondent also raised, albeit unsuccessfully, the death of defendant No. 7 and the alleged merger of the suit property with an adjoining property as grounds to defeat the suit.
The Court's Analysis
The Court examined the language of Section 106 of the Transfer of Property Act, 1882, which provides that a tenancy from month to month may be terminated by notice to quit. It noted the Supreme Court’s holding in Nopany Investments that "filing of an eviction suit under the general law itself is a notice to quit on the tenant." The Court further relied on the Division Bench’s decision in Xclusive Inn, which affirmed that "filing of the suit for eviction is itself a notice under Section 106 of the Transfer of Property Act, 1882." The Court emphasized that the doctrine of notice to quit is satisfied by the suit itself, rendering a prior notice superfluous. Consequently, the Single Judge’s finding of no cause of action was erroneous. The Court held that the tenancy stood determined upon the institution of the suit, rendering the defendants’ possession wrongful thereafter. It directed an enquiry into mesne profits under Order XX, Rule 12 of the Code of Civil Procedure, 1908, and appointed Mr. Sarosij Dasgupta as Special Referee. The decree for possession was made executable forthwith, without awaiting the mesne profits enquiry.
"Filing of the suit for eviction is itself a notice under Section 106 of the Transfer of Property Act, 1882."
The Verdict
The appeal succeeded in part. The Single Judge’s order dated 27 February 2024 was set aside. The appellants were decreed recovery of khas possession of the suit premises. The Court directed an enquiry into mesne profits from the institution of the suit (2002) until delivery of possession, to be conducted by Special Referee Mr. Sarosij Dasgupta. The decree for possession is executable forthwith. The parties are to bear their respective costs as per the earlier order. No fixed monetary award for mesne profits was granted at this stage, leaving the amount to be determined upon the enquiry’s conclusion.
What This Means For Similar Cases
Notice to Quit Not Required Prior to Suit
Practitioners need not serve a separate notice to quit under Section 106 TPA before filing an eviction suit against a holding-over tenant; the suit itself satisfies the statutory notice requirement.
Determination of Tenancy by Suit Institution
The tenancy of a holding-over tenant is deemed determined on the date the eviction suit is filed, converting subsequent possession into wrongful possession liable for mesne profits from that date.
Mesne Profits Enquiry Procedure
Where mesne profits cannot be ascertained from the record, the Court will direct an enquiry under Order XX, Rule 12 CPC, appointing a Special Referee, while allowing the decree for possession to be executed immediately.
