JIBAN KRISHNA CHAKRABARTY Vs. ABDUL KADER CHOWDHURY

JUDGEMENT

(1.) This is an appeal against an order of the Additional District Judge of Chittagong remanding a suit to the Court of the Subordinate Judge of that district for retrial in accordance with law. The suit in which this appeal arises was brought by the plaintiff, now appellant, for a declaration of plaintiff's raiyati right to the lands mentioned in the plaint and for eviction of the defendant from the same. There is also a prayer for recovery of the rent in kind with damages and mesne profits. Plaintiff alleged that there was a service of notice upon the defendant under Section 49, Ben. Ten. Act, but as the defendant refused to vacate, the present suit has been brought. The defence to the suit is that no notice was served on him and that the defendant had acquired permanent rights in the under-tenancy. Several issues were framed in the suit and the Court of first instance found that as the pottah granted by the plaintiff creating a kaimi dar raiyati right in the defendant offended against the provisions of Section 85, Ben. Ten. Act, as it stood before the amendment by Act 4 of 1928(B.C.), it must be treated as nonexistent and the under-raiyati must be regarded as one without a written lease. He held further that there has been proper service of notice under Section 49 and the tenancy was thereby determined. He accordingly decreed plaintiff's suit in part declaring his raiyati title to the disputed lands and directing recovery of khas possession; plaintiff's claim for price of bhag paddy was also decreed.

(2.) On appeal the lower appellate Court was of opinion that the suit should have been decided under Section 48-C of the amended Bengal Tenancy Act and not under old Section 49(b) of the Act as it stood before the amendment. He held that the learned Subordinate Judge having based his decision on an absolute section of law there was no proper trial of the appeal before him and the suit should be remitted to the Subordinate Judge for retrial. Against this order of remand the plaintiff has preferred the present appeal and it is contended that the notice under Section 49(b) having been given on 13 April 1928 before the new amended Section 48-C came into force the tenancy was determined on 13 April 1929 although by that time the Bengal Tenancy Amendment Act had come into operation. It is argued that no retrospective operation can be given to a Statute unless retrospective operation is either expressly given or is to be inferred by necessary implication. I am of opinion that this contention must prevail. Section 49(b) runs as follows: An under-raiyat shall not be liable to be ejected by his landlord except when holding otherwise than under a written lease for a term at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord.

(3.) The notice given under this section expired at the end of the agricultural year, i.e., on 13 April 1929. The right to evict accrued in the plaintiff as soon as a proper notice to quit was given although the right could not take effect in possession till 13 April 1929 when the new Act came into operation. Once a notice is given the tenancy will inevitably be determined upon its expiration and Courts have gone so far as to hold that when the notice to quit is given by the landlord or tenant the party to whom it is given is entitled to insist upon it and it cannot be withdrawn without consent of both: see Tayluer V/s. Wildin (1868) 3 Ex 303. As Baron Bramwell has put it in the same case: A tenant from year to year has an interest in the land for so long as neither party gives a six months notice to quit, when that is done the estate is determined.