Jwala Prasad, Acting C.J.

1. These appeals arose out of suits in ejectment. The defendants were under-raiyats and the plaintiffs sought to eject the defendants t upon the ground that notice was served on them u/s 49 of the Bengal Tenancy Act. The defendants raised various pleas and the following issues were framed in the Trial Court.

1. Whether the plaintiffs have any valid cause of action

2. Is the suit barred by time

3. Was notice duly served on the defendants

4. Are the defendants shikmidars of the plaintiffs Is there any custom that shikmidars obtain occupancy rights in the land they hold as such

5. Whether the plaintiffs are entitled to recover possession of the disputed land

6. Whether the plaintiffs are entitled to wasilat

2. The Munsif found all the issues in favour of the plaintiffs and decreed the suits. On appeal the Subordinate Judge dismissed the suits upon the preliminary ground that there was no proper service of notice as required by Section 49 of the Bengal Tenancy Act.

3. The plaintiffs contend that the view taken by the Subordinate Judge is wrong and that he ought to have held that there was proper service of notice u/s 49. The report of the peon showed that the defendants took the notice but refused to grant receipts therefor. The learned Subordinate Judge says that under Order V, Rule 17 the peon ought to have affixed a copy of the notice on the outer door or some other conspicuous part of the house in which the defendants generally resided. There is no special rule for the service of notice to quit under Clause (b) of Section 49 of the Bengal Tenancy Act. There is, however, a rule framed by the Government u/s 189 of the Act. This is Rule 3 Part I of the Government Rules in Appendix I of the Bengal Tenancy Act. That rule says that:

Notice required to be saved under this Act shall be served in the manner provided in the C.P.C., for the service of summons.

4. Therefore, the rules laid down in Order V of the C.P.C., relating to the service of summons will apply to notices served u/s 49 of the Bengal Tenancy Act. Rule 16 of Order V, provides that:

Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endsorsed on the original summons.

5. Rule 17 provides that:

Where the defendant or his agent or such other person as aforesaid, refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendants...the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

6. The serving officer is then required to submit his report and to file a report verifying the correctness of the same either by an affidavit or by examination on oath in Court. The Court then is required, under Rule 19, to declare that the summons has been duly served or to pass such order under Rule 20 for substituted service if it finds that the defendant is avoiding the service of notice, does not record any order of the Court that the notice was duly served upon the defendants under Rule 19 of the Order. Perhaps that rule numbered 3 of the Government Rules only says that the process shall be served in the manner provided in the C.P.C. Rule 19 relates to the proof of service by the affidavit of the serving officer or his examination on oath in Court and the decision of the Court that the service was duly made. There is no doubt as held by the Court below that Rule 17 relating to the mode of service, was not complied with In this case Nagishwar Bux Rai v. Bisseswar Dayal Singh 78 Ind. Cas. 889 : 2 Pat. 236 : 2 Pat. L.R. 58 : (1924) AIR (Pat.) 446 : 5 P.L.T. 576, it was held, where the defendant refused to acknowledge service of summons that the non-compliance with Rule 17 regarding the affix of a copy of the summons on the outer door or a conspicuous part of the house in which the defendant resides, does not vitiate the service of summons. In that case, however, the evidence was that the defendant, when served with notice and a copy of the plaint, retained the same and thus made it impossible for the peon to affix copy upon the door of his house. There was in that case a further judicial declaration of the Court under Rule 19 of Order V that the summons was duly served. In the circumstances of that case, therefore, it was held that the defendant was not entitled to have the ex parte decree set aside under Order IX, Rule 13 of the Code, upon the ground that the summons "was not duly served." It was regarded-that at the utmost non-compliance with Rule 17 was an irregularity and did not necessarily vitiate the service of summons when there was upon the affidavit of the peon and the circumstances of the case such as the withholding of the copy delivered to the defendant, a finding of the Court under Rule 19 that the summons was duly served. The words "duly served" occur in Rule 13 under which the application of the defendant was to set aside the ex parte decree. These circumstances are not present in the present case and, therefore, the decision is distinguishable. In the present case, which is a suit for ejecting the defendants, the Court below is right in holding that the provisions relating to the service of notice laid down in Order V, Rule 17 should be strictly complied with. It has been argued that there is some doubt as to whether notice was required to be served through the Court upon the defendants and a private notice would have been sufficient which would not have necessitated a compliance with the requirements of the rules in Order V. This may be, but when the plaintiffs choose to have the notice served through the Court the service must be in accordance with rules prescribed for the service of notice.

7. It was then argued that the defendants took the notice and, therefore, were apprised of the contents thereof that they were required to vacate the land at the end of the agricultural year next following that in which the notice to quit was served. But knowledge of the defendants is not sufficient to entitle the plaintiffs to bring suits for ejectment u/s 49. If that was so then it would have been permissible to the plaintiffs to prove that there was verbal notice served upon the defendants in a suit for ejectment. The law requires a written notice to be served and that is in the interests of the raiyat concerned and when a notice is required to be served it must he served in accordance with the rules prescribed for service. Therefore, I agree with the view taken by the learned Subordinate Judge in these cases and dismiss, these appeals with costs.

8. Let it be noted that inasmuch as the Subordinate Judge disposed of the defendants appeals upon the preliminary issue he did not decide the other issues in the case raised and determined by the Munsif. These issues are, therefore, undetermined in the case.

Kulwant Sahay, J.

9. I agree.