1. The facts in this case are somewhat complicated. ,But for the purposes of this second appeal the facts which emerge are these.
2. The plaintiffs are now and at the date of the suit were the owners of the land in suit. They sued to eject the defendants. Out of the defendants those with whom we are concerned are defendants Nos. 1 and 3 who are in occupation of the land. They claimed to be there as permanent tenants. They appear to have been or they pretended to be uncertain as to who was their landlord, but that uncertainty is now removed. If they are tenants, their landlords are the plaintiffs. They claimed .that they were permanent tenants, and this fact certainly emerges, that they are either permanent tenants or annual tenants, and in either event they are entitled to notice.
3. The trial Court came to the conclusion that the tenancy had not been legally determined by proper notice and dismissed the suit.
4. The plaintiffs appealed to the District Court, and the District Court held that as to half the land the defendants were permanent tenants and could not be evicted. As to the other half the Court held that they could be evicted and made a decree accordingly.
5. It is the defendants who have appealed here. The plaintiffs, through notice was served on them, did not put in an appearance. The facts which I have to accept are that as regards the half of the land of which they are not permanent tenants the defendants are tenants apparently holding under an annual tenancy, and I think there can be no doubt that as such they are entitled to notice before eviction. The Judge in appeal said : 'In all these circumstances I do not think any previous notice was necessary.' It is rather unfortunate that the point was not dealt with a little more fully, because the circumstances are numerous and somewhat complicated. But, as I have said, they result in this : that the defendants were holding as tenants, and as tenants, it seems to me, they were entitled to notice. In the case of Vithu v. Dhondi I.L.R (1890) Bom. 407 we have a discussion of the question whether an assertion by a tenant that he is a permanent tenant whereas in reality ho is only an annual tenant is a denial of the landlord's title such as to make eviction without notice lawful mean of course eviction by order of the Court. The discussion resulted in an expression of opinion that was not very definite. But though not very definite, it was undoubtedly to the effect that in such a case notice could not be dispensed with. I cannot take that decision as a binding authority, because of its tentative character. But it seems to me that it was right. It seems to me that where you have a tenant who is in the ordinary course of events entitled to notice, he cannot be lawfully evicted without notice, merely because he asserts that his tenancy is of one type although it turns out to be of a different type. The necessity for the notice is an incident of tenancy and it seems to me that as it attaches to a tenancy whether annual or permanent, it cannot be dispensed with although the tenant may assort that he is a permanent tenant, whereas in reality ho in only an annual tenant.
6. For that reason it seems to me that the decision of the first Court is correct and that the decision of the appellate Court in this matter of notice was incorrect.
7. I need not trouble myself to discriminate between facts which have been found by the first Court and facts which have been found by the appellate Court. The result, under the law applicable to the case, is that the suit has to be dismissed, because the suit is a suit to recover possession and the plaintiffs are not entitled to recover possession. They are not entitled to recover possession of half the land, because as to that halt' the defendants Nos. 1 and 3 are permanent tenants. They are not entitled to recover possession of the remaining half, because whatever the nature of their tenancy, the defendants have not been served with a proper notice.
8. The appeal is therefore allowed, and the suit is dismissed with costs throughout.