Patna High Court
Nandu Mahton vs Bholu Mathton And Anr. on 13 November, 1929
Equivalent citations: 123IND. CAS.609, AIR 1930 PATNA 143
JUDGMENT Macpherson, J.
1. This second appeal is preferred from the decision of the Judicial Commissioner of Chota Nagpur who, reversing that of the Munsif decreed the suit of the present respondents which was for ejectment of the appellant from four plots in village Siram.
2. In the Record of Rights respondent No. 1 is entered as the raiyat of the holding and the appellant as under-raiyat of the four plots thereof numbered 800, 806, 807 and 391.
3. The respondents sued the appellant for ejectment from plot No. 391 on the ground of misuse of it and that suit was eventually dismissed by the Appellate Court in June, 1925, on the view that this appellant was entitled to hold the under-tenancy until the respondents had paid up a sum of Rs. 32-13-0 which the appellant had paid to save the holding from sale in execution of a rent-decree.
4. The respondents next gave notice on 26th August, 1925, by the registered post to the appellant that they had deposited the sum; mentioned with their Pleader who would pay it to him, and demanding possession of the four plots within a month. Possession not having been given, the suit out of which this appeal has arisen was instituted on 23rd December, 1925.
5. The Munsif held that the notice was not sufficient and dismissed the suit. In appeal, however, the learned Judicial Commissioner held that the defendants being well aware of the plaintiffs' intention to terminate the tenancy the notice was in the circumstances, not insufficient.
6. The first point taken is that a civil suit did not lie. Now under the Chota Nagpur Tenancy Act as recently amended the suit will lie in the Civil Court only if the relationship of landlord and tenant does not subsist. The plaint sets out that the tenancy having been duly terminated no longer exists. Accordingly the suit lies in the Civil Court though, of course, it is liable to dismissal if the averment of the termination of the tenancy is not substantiated.
7. It is then urged that notice being insufficient the tenancy has not been terminated. It is clear that the learned Judicial Commissioner was under the misapprehension that the previous suit for ejectment related to the whole under-raiyati tenancy whereas it related to plot No. 391 only. The previous proceeding as such, therefore,' gave the appellant no indication that the whole tenancy was to be terminated. The only consideration accordingly is whether the notice of 26th August, 1925, which was tendered on 1st September, was adequate in the circumstances of the particular case to terminate the tenancy. Now the land of the under-raiyati tenancy consists both of dan and of taur and obviously the crop, as the learned Munsif has pointed out must have been standing at least on the paddy lands on 1st October. It is only necessary to state this fact to show that the notice of one month given in the middle of the agricultural season was altogether unreasonable. A termination of the tenancy then would involve the loss of the crop which the under-raiyat had put down when he was a tenant not under notice to quit. It is ordinarily necessary that a notice purporting to terminate a tenancy of agricultural land should either ask for possession at the end of the agricultural year or at least when the crop of the year has already been harvested or perhaps before it has been put down. Different considerations might arise if a crop is deliberately sown or planted in spite of the notice of the, intention of the landlord to terminate the tenancy but no such conditions are present in this instance. The Munsif's view was clearly correct that the notice being unreasonable in the circumstances of the case was not effective to terminate the under-raiyati tenancy of the appellants. The tenancy has not terminated and the suit, being deliberately brought in the Civil Court on the allegation that it has, must fail.
8. The appeal must, therefore, be allowed with costs here and in the lower Appellate Court the order of the Munsif is restored and the suit is dismissed.
Kulwant Sahay, J.
9. I agree.