JAGAT MOHAN DUM Vs. BASIRAN BIBI

JUDGEMENT

(1.) This Rule has been obtained by the landlords under Art. 227 of the Constitution of India against an order of the Subordinate Judge, Howrah, reversing on appeal the order of the. Thika Tenancy Controller of Howrah, granting the, landlords' application for ejectment of the defendant under section 5 of the. Calcutta Thika Tenancy Act. The landlords filed their application for ejectment on the ground that they required the land for the purpose of building or developing: it. The tenant resisted the application inter alia on the ground that the tenancy had not been validly determined by service of a notice to quit under section 4(b) of the Calcutta Thika Tenancy Act. The Thika Tenancy Controller found that the landlords really required the land for the purpose of building and developing it and he also found that the notice was a valid notice under section 4(b) of the Thika Tenancy Act. On appeal by the tenant the Subordinate Judge affirmed the finding of the Thika Tenancy Controller on the question of requirement of the landlords but set aside the judgment of the Thika Tenancy Controller on the ground that the notice served by the landlords was not a valid notice under the law. In the present case the notice was given on the 22nd April, 1953 determining the tenancy with the expiry of the last day of the month of Sravan. 1360 B.S. and there is no dispute that three months' notice required by section 4 (b) of the Act was given but the learned Subordinate Judge held that though there is no dispute in the present case that the tenancy ran according to Bengali calendar month there was no allegation or no proof to show that the tenancy really commenced on the first day of each Bengali month ending with the last day of that month and in the absence of such allegation or proof, says the learned Subordinate Judge, the landlords cannot succeed. For this purpose he has relied upon a decision of this court in the case of Surya Kumar Manjhi Vs. Trilochan Nath, 59 C.W.N. 526 , Where Das Gupta and Guha, JJ. held that if the plaintiff does not make any statement in the plaint regarding the commencement or termination of the month of the tenancy any statement in the notice, to quit cannot be taken into consideration to supply the defect. In the case before me the plaintiffs alleged in their application as follows: "The defendant was a Thika tenant under the plaintiffs in respect of the land described in the schedule below at a monthly rent of Rs. 7-1-4 ps. payable according to Bengali calendar month" which, in my opinion, means that the tenancy in dispute in the present case is governed by the Bengali calendar month. Before the learned Subordinate Judge also it was admitted that the tenancy ran according to Bengali calendar month. The meaning of the expression 'Bengali calendar month', as far as 1 know, is a Bengali month as defined in the Bengali calendar which means the whole of a Bengali month beginning from the first day and ending with the last day of the Bengali month and so an allegation to the effect that the tenancy is governed by the Bengali calendar month is equivalent to an allegation that the tenancy commences on the first day of each Bengali month and ends with the last day of each Bengali month. A tenancy which commences in the middle of a Bengali month cannot, in my judgment, be said to be a tenancy which is governed by the Bengali calendar month. If the plaintiff alleges in his plaint that the tenancy is governed by the Bengali calendar month, there can be no doubt, in my opinion, that he has thereby stated the date of the commencement as well as the termination of the tenancy. In the case of Surya Kumar Manjhi, upon which reliance was placed by the learned Subordinate Judge, there was no allegation whatsoever in the plaint regarding the commencement or termination of the tenancy whereas in the case before me I find that it runs according to Bengali calendar month, which, as I have already stated, means that it commences on the first day of each Bengali month and ends with the last day of that month. In Surya Kumar Manjhri's case all that the Division Bench wanted to lay down was that the omission in the plaint cannot be supplied by the statement in the notice to quit and a statement" in the evidence that the tenancy commenced in the month of Baisakh is not sufficient to show that it commenced on the first day of Baisakh. Their Lordships had not to deal with a case in which it was stated that the tenancy was governed by the Bengali calendar month. For these reasons I think the interpretation which has been put upon Surya Kumar Manjhi's case by the learned Subordinate Judge is not correct and I do not agree with his conclusion that a tenancy which commences in the middle of a Bengali month can also be said to be a tenancy which is governed by the Bengali calendar month.

(2.) For the reasons given above I make this Rule absolute, set aside the order passed by the learned Subordinate Judge and restore the order of the learned Thika Tenancy Controller with costs in all the courts.