Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. There have been two or three points argued in thisappeal, but the principal one is whether the plaintiffs are entitled to ejectthe defendants from certain land held by the latter under the kabuliyat set outat pages 25 and 26 of the paper-book. That question depends again upon whetheradequate notice to quit was given by the plaintiffs to the defendants. All wehave to decide, and all we intend to decide, is whether the notice was a good andsufficient notice so as to entitle the plaintiffs to recover possession of theproperty in question from the defendants. I do not propose to repeat thehistory and the facts of the case which are set out very fully in the judgmentof the Court below, nor is it necessary, for the point is a very short one. Itappears from the lease that the defendants became lessees of this property, forwhich they were to pay an annual rent of Rs. 5 by four instalments and takeannual dakhilas for the same.

2. The first question is, what was the nature of the tenancycreated by that document. In my opinion it was a tenancy reserving an annualrent. We do not decide whether the tenancy was or was not a permanent one. Isay that because it has been suggested there may hereafter be a question as tothat, and possible litigation in respect of it. Taking it then to be a tenancywith an annual rent reserved, in other words an annual tenancy (but not usingthat term so as to prejudice any question hereafter as to whether or not it isa permanent tenure), the question is whether the notice to quit was good andsufficient.

3. The defendants contend that they were entitled to sixmonths notice. Six months notice admittedly was not given in this case.

4. In considering this question both Mr. Rill and Mr.Woodroffe agree that Section 106 of the Transfer of Property Act has noapplication to the case. That being so, what in a tenancy of this nature is areasonable notice to which the tenant is entitled before he can be ejected Itis conceded by Mr. Bill that according to English law in the case of a similartenancy there must be six months notice expiring at the end of the year of thetenancy. Apparently there is no direct authority upon the point in the IndianCourts, though Mr. Woodroffe relied upon the case of Rajendronath Mookhopadhyav. Bassider Ruhman I. L. B. 2 Cal. 146 [LQ/CalHC/1952/180] . But, as pointed out by Mr. Hill, thatcase really does not cover the present case. It only lays down this: "Thata raiyat whose tenancy can only be determined by a reasonable notice to quit,expiring at the end of the year, can claim to have a suit for ejectment broughtagainst him by his landlord dismissed on the ground that he has received nosuch notice. "There being no authority to the contrary in this country wesee no reason, nor has any reason been suggested, why the rule of English lawshould not be applicable to such a tenancy as the present in this country, andwe think that six months notice, terminating at the end of the year of thetenancy is the notice to which a tenant, under such a tenancy as that in thiscase is entitled. Though the case does not come within Section 106 of theTransfer of Property Act, our view is consistent with the principle of thatsection in regard to tenancies in which a yearly rent is reserved.

5. In this case six months notice not having been given thesuit fails.

6. As we have intimated in the course of the argument, we donot think that we ought to allow the appellant to go into the question notraised in either of the Courts below, viz., whether the defendants havingdenied the plaintiffs title, if in their written statement they did in factdeny it, which Mr. Woodroffe does not admit, the plaintiffs were bound to proveany notice to quit. That question is not now before us.

7. One other point---a subsidiary point---remains, and it isthis: It is contended on behalf of the appellants that the plaintiffs areentitled to re-enter now, by reason of the fact that the defendants withouttheir lessors consent, have erected certain structures upon the land of apermanent nature, and he calls in aid Sub-section "B" of Section 108of the Transfer of Property Act, but as pointed out by Mr. Woodroffe thatsection only applies in the absence of a contract to the contrary. But even ifthat were not so, on the face of the finding of the Lower Appellate Court, thatthe plaintiffs acquiesced in the erection of these structures, I do not thinkthat that contention can successfully be raised. It was but faintly arguedbefore us. Upon this point it may be mentioned that there is no condition ofre-entry in the lease for breach of any covenant in it.

8. On these grounds I am of opinion that the appeal fails,and must be dismissed with costs.

Banerjee, J.

9. I also am of opinion that this appeal and plaintiffssuit should be dismissed, and dismissed upon the sole ground that there has notbeen any notice to quit such as, upon any view of the case, was necessary. Thetenancy was created by a kabuliyat, that is by an express contract, and it wasadmitted on both sides that the case was outside the scope of Section 106 ofthe Transfer of Property Act. Proceeding upon that assumption, and withoutdetermining, as it is unnecessary to determine, what the exact nature of thetenancy is, I think it must be at least held that the tenancy was one reservinga yearly rent, and the year of the tenancy commenced on the 14th day of Pous1294.

10. Assuming that the tenancy is at all terminable by anotice to quit, the question is what ought the nature of the notice to be; andI think that the notice in such a case ought at least to be a six monthsnotice expiring with the year of the tenancy. Although Section 106 may notapply to the case, it shows that the Legislature in this country has notthought fit to depart from the rule of English law that a yearly tenancy canonly be terminated by a six months notice. Moreover, the rule that requiresthat a terminable tenancy from year to year should have as a condition for itsdetermination a notice expiring with the year of the tenancy, is a rule that isfounded upon a very good reason. It prevents dispute as to the apportionment ofthe rent.

For these reasons I think that the notice, if the tenancy isat all terminable by a notice to quit, ought to be a six months noticeexpiring with the end of a year of the tenancy.

As the notice here does not satisfy this condition, thesuit, I think, has been rightly dismissed.

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Kishori Mohun Roy Chowdhry and Ors. vs. Nund Kumar Ghosal and Ors. (02.04.1897 - CALHC)