NABIN CHANDRA CHAKRAVARTY Vs. RAMESH CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This appeal has arisen out of a suit which the plaintiffs instituted against the defendants for arrears of rent for ejectment and for mesne profits. On 17 Baisakh 1332 defendant's father sold some lands to the plaintiffs by a Kobala, and on the next day the 18 he took some of the lands so conveyed on a lease for one year by executing a kabuliyat. The period of the lease having expired, a notice to quit was served, and on the expiry of the period stated in it, the present suit was brought. The defence was that the kobala and the kabuliyat were meant to constitute a mortgage by way of conditional sale, that it was understood that the lease would be for 5 years while it was fraudulently obtained as for one year, that a part of the rent had been paid up and that no notice was served.

(2.) The Munsif overruled all the defences and decreed the suit. The Subordinate Judge has reversed the Munsif's decision and dismissed the suit. He found that no fraud or trick such as was alleged on behalf of the defendants was proved. He preferred not to decide the question whether the deed of sale was really intended to be a mortgage, because he thought that the suit might be disposed of on the question of notice and so he left the former question open. On the question of notice he found that it was served, but he held that it was insufficient. His reason for this view was that the notice was dated 26 Aswin 1333 (served on 15 October 1927) and was a notice to vacate by the last day of Chait 1334 whereas the year of the tenancy would expire on 18 Baisakh 1335. He held that such a notice was bad. The Subordinate Judge has in one place of his judgment referred to Section 106, T.P. Act, in support of his view that the defendants on the expiry of their lease held over and so came to hold on a tenancy from year to year, and that such a tenancy, by reason of holding over, could be terminated by six months notice expiring with the end of a year of the tenancy.

(3.) It is conceded now that there are no notifications issued under Section 117, T.P. Act, making the provisions of Ch. 6 of that Act applicable to Sylhet, This tenancy has been found to be an agricultural tenancy. The Bengal Tenancy Act, admittedly does not apply. It is the Act 8 of 1869 by which the tenancy is governed. In the latest case under this Act, Ratneswar Das v. Kamal Deb Adhikari AIR 1921 Cal 126, it has been held that the notice must be reasonable but need not purport to determine the tenancy at the end of the year. I have not been able to find any decision prior to that in the case of Jugat Chandra Roy V/s. Rup Chand Chango (1883) 9 Cal 48 in which a notice expiring otherwise than at the end of the year was held to be valid. Two cases are referred to in decision aforesaid, Rajendra Nath V/s. Bassidur Rahman (1876) 2 Cal 146 and Janoo Mandar V/s. Brijo Singh (1874) 22 WR 548, in both of which however the notices were such as did expire at the end of the year, but they were relied upon in that case in support of the negative proposition that they did not, in fact, lay down that expiry with the end of the year was a sine qua non but proceeded on other grounds. I may state here that the former of these decisions was the decision of a Full Bench which no doubt dealt with a different point but the order of reference proceeded upon the assumption that the notice to be valid must expire at the end of the year. In fact Markby, J., in the order of reference expressly said so, observing: It is I think clear upon the authorities that he could not have been ejected without reasonable notice expiring with the end of the year.