TRILOCHAN NATH Vs. KALIPADA MALLIK

JUDGEMENT

(1.) This appeal arises out of an action for ejectment brought by the plaintiffs appellants against the original defendant respondent from a tank described in the schedule of the plaint. According to the allegations of the plaintiffs settlement of the tank was given to the defendant for rearing and catching fish only at an annual rent which was to be paid in kind, viz. one maund and ten seers of fish. The allegation of the plaintiffs further was that the defendant had no permanent right in the tank, and he had a temporary tenancy right terminable by service of notice to quit, The plaintiffs further alleged that such a notice to quit was served upon the defendant for giving up possession with effect from the 1st Asar 1352 B. S. (15-6-1945), but the defendant did not vacate possession of the tank in spite of service of notice to quit.

(2.) The suit was contested in the trial court by the original defendant who set up various defences. He pleaded in the first place, that the tank was held by him under a debuttar property owned by Deity Sri Sri Rura Ray, and the plaintiffs had never any personal right in the tank. The defendant further pleaded that he had got a permanent right in the tank not liable to be determined by any service of notice to quit. The defendant also pleaded that lease was taken of the tank by a remote predecessor of his not only for the purpose of rearing and catching fish, but also for agricultural purposes. The validity and sufficiency of the notice were also questioned by the defendant.

(3.) The Trial Court dismissed the suit of the plaintiffs on the finding that the defendant has got a permanent right in the tank which is not terminable by service of notice to quit. It was found in the alternative by that Court that in case defendant's claim of permanent right was not sustained, it should be held, in any event, that his tenancy was an annual tenancy held over by successive generations on payment of rent, and such a right was not liable to be determined by fifteen days' notice, as has been sought to be done by the plaintiffs. The contentions of the defendant that the tank was held under a debuttar and that the lease of the tank was taken for agricultural purposes were negatived by the Trial Court. The Trial Court also held that the suit was liable to dismissal on the further ground that the plaintiffs had not shown the date of commencement of the tenancy which was necessary for them to show for the purpose of showing that the notice served was valid in law.