PRATAP NARAIN DEO Vs. HARIHAR SINGH

JUDGEMENT

(1.) This is a suit brought to recover possession of a mouzah and for incidental relief, on the allegation that the plaintiff is the proprietor, zemindar and holder of Lachmipur estate of which this mouzah forms part. It is said that the mouzah was held by the defendant's father under several mustagiri settlements and has now devolved on them.

(2.) By way of defence it is pleaded that the plaintiff has no title, that the defendants have a permanent right, and that in any case the suit for recovery of possession cannot succeed for want of proper notice. The plaintiff's title is established, and both the lower Courts have decided against the plea of permanent right. The first Court held that no sufficient notice to determine the lease had been given, and on that ground it dismissed the suit, but at the same time incorporated in its decree what in effect is a declaration that the defendants have not a permanent right. The lower Appellate Court considered that sufficient notice had been given, and therefore passed a decree in the plaintiff's favour. On appeal to the High Court, Mr. Justice Lal Mohun Doss held that the notice given was insufficient. He dismissed the suit, and declining to go into the question of the permanency of the defendants holding, he restored the decree of the first Court. This decree was not, therefore, in conformity with his judgment, because the decree of the first Court asserted the permanent right on which the learned Judge, Mr. Justice Lal Mohun Doss, in the course of his judgment declined to decide. On appeal before us, the principal question has been as to whether notice was necessary, and if necessary, then whether proper notice had been given It has been contended that notice was not necessary, because there was a disclaimer which relieved the plaintiff from any difficulty that he might otherwise have been under, by reason of the insufficiency of the notice. But this disclaimer on which the plaintiff relies was not prior to suit but is an inference to be drawn from what is said to be a denial of title in the written statement in this suit. Even if the written statement be treated as a denial of title, still I am of opinion that this did not relieve the plaintiff of the obligation to give notice, if notice was required. In favour of the view that there was a disclaimer which rendered notice unnecessary, reliance has been placed principally upon a decision of Sir Charles Sargent in Gopalrao Ganesh V/s. Kishor Kalidas (1885) I.L.R. 9 Bom. 527. I doubt whether the point really arose in that case, for it appears from a passage in the judgment of the Subordinate Judge, as reproduced in the report of that case, that in view of the pleadings and the conduct of the suit the defendant could not properly have been allowed to rely on the absence of notice. But in any case that decision cannot now be regarded as establishing the proposition that a denial of title made in the written statement for the first time, absolves the plaintiff from the necessity of giving notice. This, I think, is to be gathered from the subsequent decisions of the Bombay High Court. In Purshotam Bapu V/s. Dattatraya Rayaji (1886) I.L.R. 10 Bom. 669, Sir Charles Sargent recognised that there were other decisions which were opposed to his determination, for in the course of his judgment he said: "It is not necessary to express an opinion on that view of the rights of the parties in the general case, as here the defendant No. 4, who is the real defendant, having purchased the third defendant's interest, not only alleged by his written statement that his alienor was a permanent tenant, but also that the defendant No. 3 had not received legal notice to quit; meaning, that even if he were only a yearly tenant, as alleged by the plaintiff, the latter had not given him the legal notice and could not recover in ejectment. Having thus pleaded an alternative defence, as he was entitled to do, the defendant cannot, we think, be regarded as having consented to the contract of yearly tenancy being treated as cancelled." Now, in this case there is this alternative defence, and an issue has been raised on that basis, so that it is clear that even according to Sir Charles Sargent's own decision in Purshotam V/s. Dattatraya (1886) I.L.R. 10 Bom. 669, his previous decision would not aid the plaintiff's contention. The matter does not rest there. In Vithu V/s. Phondi (1890) I.L.R. 16 Bom. 407, Mr. Justice Telang puts the doctrine of disclaimer on its proper footing. He there recognises the distinction between a disclaimer operating as a waiver of the requisite notice in a tenancy determinable by notice and a disclaimer operating by way of forfeiture in the case of a lease for a fixed term; and he goes on to decide that even if there had been any disclaimer, its occurrence after the institution of the suit would prevent the plaintiff from succeeding without proof of a legal notice to quit. In Dodhu V/s. Madhavrao Narayan Gadre(1893) I.L.R. 18 Bom. 110, Sir Charles Sargent recognized the authority of Vithu V/s. Dhondi (1890) I.L.R. 15 Bom. 407, so that it is clear that Dr. Rashbehary Ghose's argument, so far as it is based on Sir Charles Sargent's decision in Gopalrao Ganesh V/s. Kishor Kalidas (1885) I.L.R. 9 Bom. 527, has lost the foundation on which it once rested. There are cases in the Madras High Court to which our attention has been directed by Dr. Rashbehary Ghose and. in particular the cases of Ghidambram Pillai V/s. Sabapathi Pillai(1891) 1 Mad. L.J. 218 and Kizhakkinyakath Abdulla Naha V/s. Karuihamakkakath Moidin Kutti (1907) 17 Mad. I,. J. 287. These cases, no doubt, as they stand, support the proposition for which he contends, that is to say, that a denial of title in the written statement is a sufficient waiver of notice. But the first of those cases purports to resit on Sir Charles Sargent's decision in the case of Gopalrao Ganesh V/s. Kishore Kalidas (1885) I.L.R. 9 Bom. 527 and the second merely to follow the first; whereas, we find on the other hand that in a more recent decision reported in the case of Peria Karuppan V/s. Subramanian Chetti (1908) I.L.R. 31 Mad. 261 a different view is taken. Turning to the Calcutta authorities we find that the cases of Prannath Shaha V/s. Madhu Khulu (1886) I.L.R. 13 Calc. 96 and Nizamuddin V/s. Mamtazuddin (1900) I.L. R..28 Calc. 135 are opposed to the plaintiff's contention in this case, though it must be conceded that the language used in the judgments in those cases does not mark the distinction between the waiver of notice in relation to a tenancy determinable by notice and the forfeiture of a lease for a fixed term. Then if we turn to the English authorities on which after all these Indian cases rest, it is clear on the authority of Doedem. Lewis V/s. Cawdor (1834) 1 Cromp. M. &. R. 398 that a denial of title after suit does not amount to a waiver of the notice to which the tenant is ordinarily entitled. Whether or not there can be a waiver of notice by a denial in the written statement in those tenancies to which the Transfer of. Property Act applies, it is not necessary now to decide; but the conclusion to which I now come is that the first point argued before us on behalf of the plaintiff, that is to say, that there has been a disclaimer of the plaintiff's title, which did away with the necessity of notice, fails.

(3.) The next point is as to whether sufficient notice was given. The learned Additional Subordinate Judge considered that sufficient notice was not given; the District Judge, on the other hand, thought that there had been the requisite notice. The facts are that 18 days notice was given, and it was a notice for the determination of the tenancy neither with the year of the defendant's tenancy nor with the end of the Fusli year. In order to determine what notice would be right, we must first see what the lease was. It has been described to us by the plaintiff as a middleman's lease pure and simple. The document has been placed before us, and we are unable to accept that view. In certain aspects it must be regarded as a lease for agricultural purposes, and so it does not come within that part of Section 106 of the Transfer of Property Act which provides that "a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 15 days notice expiring with the end of a month of the tenancy." The state of the authorities on the question of notice cannot be regarded as satisfactory; and, all that we are able to say sitting as a Division Bench is, that there must be a reasonable notice and that the notice need not necessarily determine the tenancy at the end of a year. But it will be for the final Court of fact, in each case, to determine what is reasonable notice having regard to all the circumstances, and whether it would not be reasonable in the circumstances of the particular case for it to determine with the year. Even in relation to a middleman's lease pure and simple, it has been said by Mr. Justice Norman in Bunwaree Loll Roy V/s. Mohima Chunder Koonal (1870) 13 W.R. 267, "that the principle which applies to the case of ryats applies to the case of middlemen, and that the latter cannot be turned out by the zemindar without a reasonable notice, notice which we are disposed to think should expire at the end of the year." And the learned Judge gives his reasons for this view. Then there is a decision, which certainly is deserving of attention and respect, in Kishori Mohun Roy Chowdhry V/s. Nund Kumar Ghosal (1897) I.L.R. 24 Calc. 720, where Sir Francis Maclean C.J. discussed the question as to the notice to which a tenant is entitled before he can be ejected. It has been said, and said truly, that the tendency of the law is to narrow the field of uncertainty, and the growth of law is towards the substitution of the fixed for the fluid. Although it cannot be said that any fixed rule has been established by the cases to which I have referred, I think they show a tendency in that direction, both as to the length of notice and the time at which the notice should expire; and the lower Appellate Court may well have regard to this tendency when it comes to determine, as it must, the question whether or not in all the circumstances of this case reasonable notice has been given-reasonable, that is to say, both in length and as to the time at which it was to come into effective operation.