PANCHU CHARAN ADDAK Vs. BENODE BEHARI HALDAR

JUDGEMENT

(1.) The suit out of which this appeal arises is one for ejectment of the defendants-appellants from a piece of bastu land and an adjoining tank on the basis of a notice to quit served on them by the plaintiffs-respondents on 5 October 1928. In the original plaint the bastu and the tank had been defined by one set of boundaries, but by an amendment of the plaint the bastu and the tank were shown as separate parcels in two schedules.

(2.) The appellants press only one point, namely that the notice to quit is invalid, all other points raised by them in the Courts below and on which they got adverse decisions being properly abandoned, they being concluded by findings of fact binding on me in second, appeal. The material facts bearing upon the question pressed are the following. The plaintiffs are the owners of the bastu, but only co-owners of the tank. They let out the bastu to the defendants separately, but joined with their co-sharers (who are not parties to the suit) in, letting out the tank. Thus two tenancies were created: one in respect of which the plaintiffs are the sole landlords and the other in respect of which they are only co-sharer landlords. The notice to quit was signed by an authorised agent of the plaintiffs and required the defendants to vacate the bastu and tank by a certain date. The description of the demised premises is given in the notice in these terms: Within District Twenty-four pergunahs P.S. Budge Budge, Mouza Nandanpara, in one plot about 2 bighas 4 cottahs 10 chittaks 13 gundas 1 kara more or less; bastu and tank; Boundaries: North?Lands of Sridhar Malakar and kali Halder; East?Pattas Boad, South?Land of Nabin Mandal: West?Lands of Hariday Adak, Bhutnath Bairagi and Manik Mandal.

(3.) The learned Subordinate Judge from whose judgment and decree the appeal has been taken to this Court held that the notice to quit so far as the tank is concerned is invalid, but that the plaintiffs respondents are entitled to eject the defendants from the bastu on the basis of the said notice. In my judgment the notice in question is invalid so far as the tank is concerned as the view taken by the Subordinate Judge is well supported by the decisions of this Court, The principle that a joint tenant may put an end to his own demise, as far as it operates on his share, whether his companions join him or not, has no application in India. The relation created by contract with joint landlords continues till all of them determine it: Gopal Ram V/s. Dhakeswari Prosad (1908) 35 Cal 807 and Motilal V/s. Chandra Kumar, 1920 Cal 866. The appellants have urged that the notice so far as the bastu is concerned is invalid as the lands of two tenancies have been lumped together. They say that they being required to give up the tank, which they are not bound to give up, along with the bastu, the notice is bad. Both the Courts below have found that the defendants knew that the bastu and the tank formed respectively two tenancies. The plaintiffs expressed their desire in unambiguous terms to determine the tenancy in respect of the bastu and the tank also, but it is only because their co-sharers did not join in giving the notice they cannot have possession of the tank. In my judgment the case comes within the principles formulated by the Judicial Committee in Harihar Banerjee V/s. Ram Soshi Roy, 1918 PC 102. The defendants knew precisely what lands formed their two tenancies, and there is no question of surprise. The landlords required the tenants to give up the bastu. They cannot be deprived of what they are entitled to simply because they preferred a claim to something more: Shama Charan Mitter V/s. Wooma Charan Halder (1898) 25 Cal 36. The cases cited on behalf of the appellants, namely Ram Kanie V/s. Ganesh (1921) 33 CLJ 613, Atal V/s. Kedar (1921) 33 CLJ 515 and Bhimram V/s. Maharanee Hura Soondary (1921) 33 CLJ 516 have no bearing on the question at issue. In these cases the landlord by his notice to quit required the tenant to give up only a portion of his tenancy, which he could not clearly do. These cases only lay down the principle that a tenancy can be determined as a whole; the landlord cannot treat the tenancy as extinguished as to a part and subsisting as to the rest. I accordingly dismiss the appeal with costs.