Tottenham and Agnew, JJ.
1. The plaintiff in this case is the putnidar of a taluk called Nundipur, from which he seeks to eject the defendant. It appears that the estate formerly belonged to one Ramlochun Ghose, who, in 1203 (1796), sold it by a kobala to one Komola Kant Koer. Komola Kant Koer was succeeded by Baidya Nath Koer, whose name was recorded as proprietor. The property remained in the possession of the Koers up to the year 1270 (1863), when it was sold for arrears of revenue, and purchased by one Sham Lal Ghose, and the Koers were ousted. The defendant was then a minor. His guardian Nobin Chunder Koer subsequently brought a suit to recover possession of the property against Shama Sundari Dasi, the guardian of Onath Bundhu Ghose, the heir of Sham Lal Ghose. This suit was referred to arbitration, and the arbitrators by their award found that six bighas of lakheraj land were excluded from the plaintiff's claim; but that the rest of the lakheraj land, including all the lands in dispute in the present suit, belonged to him, and that the mal lands also belonged to him, and in 1280 (1873) he was put into possession.
2. In 1283 (1876) the estate was again sold for arrears of revenue and was purchased, free from incumbrances, by the Maharajah of Burdwan, who let it in putni to the present plaintiff. The plaintiff alleges that the lands now in dispute are mal lands within the zamindari, and that they were held by Sham Lal in nijjote. On the 26th Magh 1286 (8th February 1880) the plaintiff served the following notice to quit on the defendant:
You are in possession of 43 bighas without any legal grounds. You have no right or title to occupy the said land, and I am entitled to eject you from it. You are therefore informed that you must within thirty days of the service of this notice on you, quit the land, or you may, if you like, enter into an engagement with me and execute a kabuliat with me, agreeing to pay a proper rent. If you do not do either, I shall institute a suit to eject you.
3. The present suit was instituted on the 13th Assar 1287 (26th June 1880).
4. The defendant stated that the zamindari consisted of 36 plots, of which plots 1 to 11 belonged to a holding in the name of Komola Kant Koer; that plots 12 to 19 were originally held by one Gunga Gobind Koer who sold them to Baidya Nath Koer on the 6th Falgun 1222 (1816) in the benami name of Madhub Ghunder Koer. At that time it is alleged by the defendant that Gunga Gobind Koer had acquired a right of occupancy in these plots, and the defendant contended that, as he and his ancestors had held possession of these plots for more than twelve years, he had acquired a right of occupancy in them. Plots 20 to 36, the defendant stated, were lakheraj lands.
5. The Subordinate Judge dismissed the suit. He held that the decree in the arbitration suit did not operate under Section 13 of the Civil Procedure Code as a bar to the present suit, but he held that the plaintiff had recognized the relation of landlord and tenant existing between himself and the defendant as to plots 1 to 19, and that the defendant had a right of occupancy in those plots; and further that the plots 20 to 36 were the defendant's lakheraj.
6. District Judge modified this decree. He held that the decision in the arbitration suit did not operate as res judicata, and was not admissible in evidence against the plaintiff'. He further held that the defendant had not acquired a right of occupancy in the lands claimed by him as mat, and he reversed the Munsif's decree on this point.
7. The first question that arises is as to the sufficiency of the notice. For the plaintiff it was contended in the first place that the defendant was a trespasser, and that therefore no notice at all was necessary. Apparently before the putni was granted the Maharajah received rent from the defendant. And after the putni was granted the plaintiff served the defendant with notice of enhancement, but nothing further was done. The District Judge finds that the defendant never attorned to the plaintiff or paid him rent. We think, however, that the tenancy acknowledged by the Maharajah continued, and that the defendant cannot now be treated as a trespasser.
8. We were not referred to any precise authority on the question as to what notice a tenant not having a right of occupancy is entitled to. It was argued for the defendant that three months' notice must be given, and that the notice must be to quit at the end of the month of Cheyt. We do not think that the cases to which we have been referred bear out this argument. In Janoo Mundur v. Brijo Singh 22 W.R. 548 all that was decided was that such a tenant is entitled to a reasonable notice to quit, and that the notice served being a three months' notice was reasonable. But it does not decide that a less notice is unreasonable. And in Surjomonee Dossee v. Pearee Mokun Mookerjee 25 W.B. 331 it was decided that where the holding of a ryot is of such a nature that he cannot be ejected without a reasonable notice to quit at the end of the year, he is entitled to have a suit for ejectment dismissed on the ground that he has had no such notice. This case also does not decide what is a reasonable notice.
9. In Jubraj Roy v. Mackenzie 5 C.L.R. 231 the notice, was to quit within thirty days at a time when the crops were ripening. The Subordinate Judge held that the notice had been given at an improper time and his decision was affirmed. Sir Richard Garth, C.J., said: 'I think the notice should have been a reasonable one to terminate the tenancy at the end of the fresh year. The Subordinate Judge probably knows better than we do what would be a reasonable notice to quit in that part of the country.' Prinsep, J., said: 'It is unfortunate that the law should not have defined when a tenant, having no permanent right, can be called upon to vacate his holding, and what notice should be given to him; but I think that, following the rule for notice of enhancement, the notice served on the 25th February and giving thirty days' notice has neither been served at a proper time of the year, nor has it given a sufficient time. I do not mean to say that a notice, to quit may not be served at any time during the year, but it must give a 'sufficient interval to the tenant to vacate, and if served in the middle of the 'year when it would disturb all cultivation, it would not be a proper notice, unless it gave a time for leaving the tenure when the cultivation shall have come to an end.' In Ram Button Mundul v. Netro Kally Dassee I.L.R. 4 Cal. 339 a ten days' notice was held to be insufficient. The question was also considered in the cases of Prosunno Coomaree Debea v. Rutton Bepary I.L.R. 3 Cal. 696 and Jugat Chunder Bai v. Bup Chand Gkango I.L.R. 9 Cal. 48 : 11 C.L.R. 143 and in both of these cases, the Court abstained from laying down any precise rule. In the first case Sir Richard Garth, C.J., say's: 'The truth is, that the terms of a holding as between landlord and tenant must always be matter of contract either express or implied. If they enter into an express agreement of tenancy either written or verbal, such agreement generally defines the terms of his holding. If, on the other hand, a tenant is let into possession without any express agreement, and pays rent, he becomes a tenant-at-will, or, from year to year; or in other words, holds by the landlord's permission upon what may be the usual terms of such a holding by the general law, or by local custom, and in such a case he is, of course, liable to be ejected by a reasonable notice to quit.' In the other case the Court (McDonell and Field, JJ.) said: 'What is reasonable is a question of fact which must be decided in each case according to the particular circumstances, and the local customs as to reaping crops and letting land.' In this last mentioned case the notice expired within seven days of the close of the year, and it was not held to be bad upon that account.
10. There is not, therefore, so far as we are aware, any authority for the proposition that a notice to quit to a ryot other than an occupancy ryot must terminate at the end of the cultivating year, and must be a three months' notice. The cases do not, it seems to us, go further than this, that such a ryot is entitled to a reasonable notice to quit, to such a notice as will enable him to reap his crop; and that what is a reasonable notice is a question to be decided in each case upon a consideration of the particular circumstances, and the local customs as to reaping crops and letting land.
11. In this case an issue was raised as to whether the notice was reasonable. The Subordinate Judge did not come to any finding on the issue, but the District Judge says that no evidence was given to prove that the condition of the crops on the land or the custom of the country was such that the defendant was entitled to a longer notice, and he finds that the notice was reasonable. Under, these circumstances we do not think we should interfere with his decision on this point.
12. The next ground of appeal was that the lower Court was in error in refusing to admit as evidence against the plaintiff, the judgment and award in the arbitration suit. In order that a decree in a previous suit may operate in a subsequent suit as res judicata the previous suit must have been between the same parties or persons through whom they claim. Then the question is whether an auction-purchaser at a sale for arrears of revenue can be said to claim through the defaulting proprietor? The case of Tara Prasad Mittra v. Ram Nrisingh Mittra 6 B.L.R. Ap. 5 : 14 W.R. 283 to which we were referred on behalf of the appellant, is not we think an authority to show that he does. It is an authority for saying that the purchaser of a putni tenure sold at the suit of the landlord is not entitled to set at naught all decisions arrived at against the defaulting putnidar, and that he can only acquire rights higher than an ordinary purchaser by private contract to the precise extent to which such privileges are conferred by express terms of law. That is to say, he is not entitled to claim the extraordinary privileges conferred by the Revenue Sale Law upon an auction-purchaser at a sale for arrears of revenue. And the case of Moonshee Buzloo Rahaman v. Pran Dhan Dutt 8 W.B. 222 is a distinct authority against the appellant. There the Court said: 'The plaintiff, as purchaser of the rights of Government in the taluk, is not privy in estate to the defaulting proprietor. He does not derive his title from him, and is bound neither by his acts nor by his laches. This is the doctrine, which, with reference to the sale laws and to public policy as regards the Government revenue, our Courts have invariably enforced and adopted in all these cases. The plaintiff, as auction-purchaser, is bound by no limitation which would not bind or affect the Government.' We think, therefore, that the District Judge was right in refusing to admit the proceedings in the arbitration suit as evidence against the plaintiff.
13. Then it was argued that the District Judge was wrong in holding that the defendant had not acquired a right of occupancy in the lands claimed as mal, viz., plots 1 to 19. As to plots 1 to 11, which were purchased by Komola Kant Koer in 1203, it was argued that the defendants had been wrongfully evicted in 1270 by Sham Lal Ghose, and that on the authority of Luteefunissa Bibee v. Pulin Behari Sein W.R.R.B. 91 and Mahomed Gazee Chowdry v. Noor Mahomed 24 W.R. 324 the period during which he was so evicted would not be such an interruption of his possession as would prevent him from acquiring a right of occupancy, and that he was entitled to compute such period towards the twelve years required to establish the rights. And as to plots 12 to 19 which had been sold in 1222 by Gunga Gobind Koer to Baidya Nath Koer in the benami name of Madhub Chunder Koer, it was argued that Gunga Gobind Koer had acquired a right of occupancy before the sale to Baidya Nath who was the proprietor, and that this right of occupancy remained in abeyance, and came into force again after the sale to the Maharajah of Burdwan in 1283.
14. Now as to plots 1 to 11 it is clear that any right acquired by the occupant of land cannot be affected by a wrongful eviction. The question then is, whether the defendant was occupying as ryot at any time before the purchase by the Maharajah. In 1283 Komola Kant Koer became the zamindar of these plots. He was not a ryot. And the case of Boolchand Jha v. Lutlwo Moodee 23 W.R. 387 shows that a zamindar cannot, by cultivating his-own land, acquire right of occupancy. That right is given to one who occupies as a ryot only; Woomanath Teworie v. Koondum Tewarie 19 W.R. 177. Therefore up to 1270, when the zamindari was first sold for arrears of revenue, no right of occupancy could have been acquired in respect of those plots. In 1280 the defendant was restored to possession, and could only have been restored to the rights which be had when dispossessed, namely, those of a zamindar. If he had not begun to acquire a right of occupancy when dispossessed, the period during which he was evicted cannot be counted towards the acquisition of such a right.
15. Then as to plots 12 to 19, the District Judge held that the alleged right of occupancy acquired by Gunga Gobind Koer merged in the zamindari right when Gunga Gobind sold to Baidya Nath in 1222. It was argued on the authority of Woomesh Chunder Goopto v. Rajnarain Roy 10 W.R. 15 that the doctrine of merger does not apply in this country.
16. It is not, however, necessary to consider this point. It is not clear that what Gunga Gobind sold was a right of occupancy. But assuming that it was, we think that upon the sale it came to an end. The sale was to the zamindar. The right of occupancy is one given to a ryot only, and it continues only so long as the ryot pays rent on account of the land he' holds. The zamindar cannot pay rent to himself, and if, as already pointed out, a zamindar, cannot by cultivating his own land acquire a right of occupancy, it is difficult to see how such a right can be kept alive when the zamindar obtains possession of the land in respect of which the right accrued.
17. Then it was argued that the tenure was kept alive as the purchase was made in the benami name of Madhub Ghunder Koer. But the reasons already given for coming to the conclusion that a right of occupancy cannot be kept alive unless there is some person occupying the land and paying rent to the zamindar, apply, we think, equally to a benami purchase. There is no evidence to show that Madhub Chunder Koer was more than a mere benamidar, that he ever occupied the land and cultivated it, and paid rent to the zamindar. We think, therefore, that the defendant has failed to prove that he has any occupancy rights in the lands claimed as mat.
18. The appeal must therefore be dismissed with costs.
19. The cross appeal is dismissed without costs.