CHANDI CHARAN NATH Vs. SRIMATI SOMLA BIBI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for ejectment. On the 20th February 1891 the plaintiff granted an under raiyati lease to the defendant. The lease was not for any specified term, but was described as a barsana patta (yearly lease). The grantor stated that she had a raigati interest in the land under a grant from her superior landlord, dated the 26th November 1838; and the grantee was enjoined to have an entry made in the Survey and Settlement Record that the grantor possessed a raiyati right and the grantee himself a harsana right. On the 12th April 1911 the plaintiff served a notice upon the defendant calling upon him to quit the land at the end of six months. On the 14th August 1911, she instituted the present suit to eject the defendant who had not left the land in spite of the notice to quit. The Court of first instance dismissed the suit on the ground that the tenancy was permanent and was valid and operative as between grantor and grantee. Upon appeal, the Subordinate Judge held that a permanent lease registered in contravention of Section 85(2) of the Bengal Tenancy Act was of no effect, and that the defendant was consequently liable to be ejected on service of notice to quit. The suit was accordingly decreed and that decree has been affirmed by Mr. Justice Newbould.

(2.) On a perusal of the lease, it is obvious to me that it was not intended to be and is in no sense a permanent lease. It is throughout described as a lease from year to year. The case appears to have been argued in the Courts below on the erroneous assumption that it was a permanent lease, because the interest was treated as heritable. No question, consequently, arises whether a permanent lease registered in contravention of Section 85(2) of the Bengal Tenancy Act is ineffectual for all purposes between grantor and grantee, a question which has led to some divergence of judicial opinion in this Court, nor is it necessary to consider the question of the applicability of the doctrine of estoppel to this case, for here both the parties knew and stated explicitly that the grantor was a raiyat Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 20 C.W.N. 1340 : 24 C.L.J. 541 : 44 C. 771. If, then, we assume that the lease was operative between lessor and lessee, obviously this furnishes no answer to the claim for ejectment, for it is of the very essence of an annual tenancy that it is terminable by the landlord on notice to quit. Ordinarily, the landlord has to give a six months notice ending with a year of the tenancy, but in the case of agricultural tenancies of the description now before me, the provision for notice is to be found in Section 49 of the Bengal Tenancy Act. That section contemplates two classes of oases, namely, first, where an under- raiyat holds under a written lease for a specified term, and, secondly, where an under raiyat holds either without a written lease or under a written lease which is not for a specified term Raj Kumari Debi v. Barkatulta Mandal 12 Ind. Cas. 161 : 39 C. 278 at p. 283 : 14 C.L.J. 407 : 16 C.W.N. 6. The defendant is an under-raiyat of the second description Mohendra Nath Sepai v. Parbutty Charan Dass 8 C.W.N. 136; Komaruddi v. Sreenath Chowdhury 8 C.W.N. 136 and Indugazi Doctor v. Chandra Kali Sundrani 8 C.W.N. 139. The landlord has complied with the requirements of Section 49(b). The notice was served just before the expiry of 1272 M.S., the tenant was bound to quit by the end of 1273, that is, on the 13th April 1912, and the suit was instituted some months later. The only possible objection which can be taken to the notice is that it called upon the tenant to quit at the end of six months from the date of its service, but as pointed out by Jenkins, C.J., in Harifulla Gain v. Benode Behary Mondol 19 Ind. Cas. 557 : 17 C.W.N. 932 Section 49 prescribes no form of notice nor has it given any indication as to the length of notice, and the Chief Justice added that it would be deplorable to introduce into matters of this kind the intricacies of English Law as prevailing in the Presidency Towns. The under- raiyat is protected from ejectment until the end of the agricultural year in which a notice to quit is served upon him by his landlord, and this indicates the time when it becomes obligatory upon him to leave. I am of opinion that the tenancy in this case was terminable, was, in fact and in law, validly terminated by a notice under Section 49 (6), and the plaintiff was, at the date of, the institution of the suit, entitled to recover possession of the land from the defendant.

(3.) The appeal must accordingly be dismissed with costs. Beachcroft, J.