HARICHARAN MANDAL Vs. BIGHORE GAIN

JUDGEMENT

(1.) The plaintiff, who is the appellant to this Court, is said to be a raiyat and the defendants are said to be his under raiyats. The suit was brought for ejectment of the defendants after service of notice to quit under Section 49 of the Bengal Tenancy Act. The Munsif gave the plaintiff, a decree. The learned District Judge has dismissed the suit on the sole ground that the notice to quit served on defendant No. 1 does not affect the other defendants and that there has been no proper or any service of notice on them. The defendants are four in number. Defendants Nos. 2 and 3 are the nephews of the defendant No. 1 and defendant No. 4 is his brother s widow.

(2.) It is not disputed that the defendants are tenants-in-common of the holding in question. Under the rules framed by the Government notices under Section 49 of the Bengal Tenancy Act have to be served in the manner provided in the Code of Civil Procedure for the service of a summons. It is said that the notices to quit on the defendants Nos. 2, 3 and 4 were in fact issued by the Court and that they were left with the defendant No. 1 who gave a receipt for them. In arriving at his decision the learned Subordinate Judge does not appear to have considered the facts with referenda to the provisions of rule 15 of Order V of the Code of Civil Procedure or with referenda to the observation regarding the service of notice to quit on tenants-in-common made in the case of Rajoni Bibi v. Hafisonessa Bibi 4 C.W.N. 572. The ruling of the Privy Council in the case of Harihar Banerjee v. Ramsashi Boy 48 Ind. Cas. 277 : 29 C.L.J. 117 at p. 135 : 23 C.W.N. 77 : 16 A.L.J. 969 : 35 M.L.J. 707 : 9 L.W. 148 : 46 C. 458 : (1919) M.W.N. 471 : 1 U.P.L.R. (P.C.) 56 : 45 I.A. 222 : 25 M.L.T. 159 : 21 Bom. L.R. 522 (P.C.) may also be referred to in the latter connection.

(3.) In my opinion, the judgment and decree of the lower Appellate Court must be set aside and the case be remitted to that Court for a fresh decision whether there was a valid service of notice to quit on the defendants and for the determination of the other questions which arise in the case. It will be for the lower Appellate Court to make a decree in accordance with the conclusions at which it may arrive when the appeal is reheard.