PURNA CHANDRA DAS Vs. ALI MAHAMMAD

JUDGEMENT

(1.) This is an appeal by the plaintiffs in an action in ejectment. The case for the plaintiffs is that they are raiyats, that the defendants are the representatives in interest of an under-raiyat and that they have unlawfully continued in occupation of the land; notwithstanding the service of notice to quit in accordance with Clause (b) of Section 49, Bengal Tenancy Act. They accordingly instituted this suit on the 7 January 1918 to eject the defendant. The Court of first instance decreed the suit. Upon appeal that decision has been reversed by the Subordinate Judge. On the present appeal three questions have been raised, viz., first, what was the status of the plaintiffs? Were they raiyats as alleged by them or tenure-holders as alleged by the defendant? Secondly, if the defendants were under-raiyats under the plaintiffs, has their tenancy been terminated by a notice to quit; and thirdly, have the plaintiffs by acceptance of rent from the defendants subsequent to the service of notice to quit, waived their right to eject them.

(2.) As regards the first question, the status of the plaintiffs must be determined with reference to the lease obtained by them from the talukdars on the 10 May 1860. On a true construction of this document, there is no room for controversy that the plaintiffs acquired the interest of a raiyat. But it has been argued that inasmuch as the plaintiffs and their landlords covenanted that on failure to pay rent under the lease the landlord would be entitled to receive rent by the summary process prescribed in the Putni Regulation of 1819, the status of the plaintiffs must be deemed to have been that of a tenure-holder, if not that of a putni talukdar. We are of opinion that there is no force in this contention. The tenancy of the plaintiffs was unquestionably a raiyat's tenancy. The status of the plaintiffs could not be elevated because a condition was annexed to the lease which entitled the landlord to realise rent by summary process. It is not necessary for our present purpose to determine whether such a condition is valid. It is sufficient to hold that this covenant does not alter the nature of the tenancy. We hold accordingly that the plaintiffs were raiyats and the defendants were under-raiyats.

(3.) As regards the second point, we have to consider whether the tenancy has been terminated by a valid notice to quit. It is not disputed that on the 26 December 1914, a notice was served by the plaintiffs upon the defendant. The notice was described as a notice under Section 49, Bengal Tenancy Act. It stated in the first place that the plaintiffs did not admit that the defendants were under-raiyats. But it was added that if they were under- raiyats, they should vacate the land. There was no specification of the date when the defendants were required to vacate the land. But the suit was not instituted till the 7th January 1918. The question arises whether this is a valid notice to quit within the meaning of Clause (b) of Section 49, Bengal Tenancy Act, which provides that an under-raiyat should not be liable to be ejected by his landlord, except when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. In the present case, the predecessor-in-interest of the defendants entered upon the land on the basis of a kabuliyat executed by him on the 12th May 1898 for a term of one year. After the expiration of the term, the tenant held over, and after his death, his representatives-in-interest have continued in occupation of the land on payment of rent to the landlords. The defendants must be deemed to have been under-raiyats who held otherwise than under a written lease. They were consequently entitled to a notice to quit. But the section does not specify the form or the contents thereof. It was pointed out by Sir Lawrence Jenkins, C.J. in the case of Harifullah Gazi V/s. Benode Behary Mandal (1913) 17 C.W.N. 932, that the technicalities of the English Law relating to the form and contents of a notice to quit should not be introduced in connection with the provisions of Section 49, Bengal Tenancy Act. There is sufficient compliance with the requirements of Section 49, if what is served upon the tenant gives him notice to quit the land at the end of the agricultural year next following and the suit it instituted after the lapse thereof. This view is in accordance with that adopted in the cases of Nahurulla Patwari V/s. Madan Gazi [1896] 1 C.W.N. 133 ; Dwarkanath V/s. Rani Dassi [1900] 28 Cal. 308 and has been subsequently followed in the case of Chandi Charan V/s. Sarnla Bibi [1917] 28 C.L.J. 91. In the case before us, the notice is described as a notice under Section 49, Bengal Tenancy Act and the suit has been instituted long after the expiry of the agricultural year following that in which the notice was served. We hold accordingly that the requirements of Section 49 have been fulfilled.