SURYA KUMAR MANJI Vs. TRILOCHAN NATH

JUDGEMENT

(1.) This appeal is against the decision of our learned brother Renupada Mukherjee, J. allowing an appeal directed against an appellate decree. The respondents before us brought a suit for ejectment of the present appellants on the allegation that the defendant Kalipada Mullik was a tenant of a tank described in the schedule, his right being thika non-permanent" and the tenancy being for rearing and catching fishes. It was averred that the tenancy was terminated by a proper notice to quit, but the appellants had not given up possession. There were several defences raised; but the only defence with which we are at present concerned is that the notice served was not valid or sufficient in law. The trial Court held that the tenancy was one from year to year and could be terminated by six months' notice and so the notice was insufficient. It held, in the alternative, that even if the tenancy was regarded to be a monthly tenancy requiring fifteen days' notice, there was no valid notice as the plaintiffs have failed to show on what date the tenancy started. In appeal the learned Subordinate Judge held that the tenancy was from month to month and that fifteen days' notice would be sufficient but he also agreed with the trial Court that the plaintiffs had failed to prove sufficiency of notice as they have not proved by evidence the date of the commencement of the lease.

(2.) Renupada Mukherjee J. has agreed with the trial Court that the tenancy was one from month to month and fifteen days' notice would be sufficient. He has however, relied on two facts for a conclusion that the notice was sufficient. The first is that the notice that was served was appended to the plaint and thus there was, by implication, a statement by the plaintiffs that the tenancy was from month to month according to Bengali calendar month. The other fact on which Mukherjee J. has relied is that "the tenant did not traverse in his Written Statement the right of the plaintiffs to determine the tenancy with effect from the last day of the Bengali month." On these facts he has held that

(3.) This onus could have been discharged by the plaintiffs by adducing evidence as regards the date on which the tenancy commenced. No such evidence was given, the only statement which can be considered in some way connected with the case being, as has been rightly pointed out by the learned Subordinate Judge, the statement of one plaintiff that he gave settlement in Baisakh. But Baisakh may he the first day of Baisakh or the last day of Baisakh or any other day in the month. If the case was that the tenancy commenced on the 1st of Baisakh, there should have been evidence to show that the tenancy did commence from the 1st of Baisakh. It is not permissible for the Court to fill up the lacuna of evidence in a matter of this nature by surmising that when the plaintiff in his evidence stated "Baisakh", he meant the 1st of Baisakh.