MOZAM SHAIKH Vs. ANNADA PRASAD BHADRA

JUDGEMENT

(1.) This appeal is by the defendant in a suit for ejectment after notice. The disputed property is a small plot of land in the bazar at Narail. The plaintiffs case is that the defendant was a tenant-at-will in respect of the land from before the date when he executed the kabuliat, Ex. 1 on 26 Falgoon 130S, corresponding to 9 March 1899; that; though not necessary, a notice to quit was served on him on 30 Aswin 1343 B.S. corresponding to 16 October 1936, asking him to quit by 30 Chaitra 1343 B.S. The defence, inter alia, was that the tenancy was a permanent one and that, at any rate, the notice served was insufficient and defective, inasmuch as it did not expire with the end of either the year of the tenancy or the month of the tenancy. Both the Courts decreed the plaintiffs suit; hence this second appeal by the defendant.

(2.) As has been stated above, the notice asked the defendant to quit by 30 Chaitra, 1343 B.S. The exact vernacular words used in the notice were "Trishe Chaitra Madhye." It was contended on behalf of the appellant that these words mean that he was asked to quit before the expiry of 30 Chaitra 1343 B.S. and hence defective. We are unable to accept this contention of the appellant. The words "Trishe Chaitra Madhye" would mean "by 30 Chaitra" and the tenant would have the whole of that day to give up the tenancy. This is also made clear from the next clause in the notice which says that in case of default the landlord would take legal proceedings to re-enter on 1 Baisakh. The next contention of the appellant is that 30 Chaitra was neither the end of the month of the tenancy nor of the year of the tenancy. His contention is that as the kabuliyat Ex. 1, reserved yearly rent, the tenancy must be treated to be a yearly one terminable by six months notice expiring with the end of the year of the tenancy. He contends that if the kabuliyat Ex. 1, be taken to be the document by which the tenancy was created then in that case, as there is nothing in the document itself expressly specifying from which date the tenancy is to commence, it must be taken that it commenced from 26 Falgoon 1305 B.S. the date on which the kabuliyat was executed. In that case the year or month of the tenancy will not end on the last date of that month but on the 27th. His further contention is that the kabuliyat itself shows that the tenancy was in existence from before the date of this kabuliat, and no evidence has been adduced by the plaintiffs in this case to show when it did really commence.

(3.) The tenancy of the defendant is admitted, and it is the plaintiffs who plead that it determined on the expiration of a notice to determine his lease. It is for them to prove that the notice in question legally determined the lease, in order to show that it must be shown that the notice served upon him expired either with the end of the year of tenancy or with the end of the month of the tenancy. In the absence of any evidence to show when the year or month of the tenancy commenced, the plaintiffs suit must fail. In our opinion, this contention of the defendant must be given effect to. The plaintiffs want to say that the notice served by them was sufficient to determine the tenancy. It is for them to show that it was really so sufficient. It was open to them to prove the commencement of the tenancy by producing their collection papers but they did not adduce any evidence to do that. The plaintiffs respondents next contended that the tenancy was really a tenancy-at-will or at sufferance and, consequently, no notice was at all necessary for the purpose of determining it. We are unable to accept this contention of the plaintiffs-respondents. The tenancy-at-sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under, a lawful title continues in possession after that title has determined without the consent of the person entitled. The tenancy-at-will again arises by implication of law in cases of permissive occupation. In the present case nothing of the kind happened. Admittedly, the tenancy was created by contract and in our opinion there is no scope for characterising the present tenancy as one at will or at sufferance.