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Bidhumukhi Dabea ChowdhraIn and anr. Vs. Kefyutullah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal93
AppellantBidhumukhi Dabea ChowdhraIn and anr.
RespondentKefyutullah
Cases ReferredBadha Gobind Koer v. Bahhal Das Mukherji
Excerpt:
landlord and tenant - ejectment-- notice to quit, what is reasonable--second appeal, what constitutes a question of law open upon. - .....determine the tenancy of a tenant not having occupancy right.3. the notice given was a two months' notice served on the 26th of the month of pous. it, therefore, expired on the 26th falgun. the first court held that the notice was insufficient on this ground. 'notices were indeed served, but their terms did not expire at the end of the year. i therefore find that the notices were not served according to law, and therefore the tenants cannot be evicted under such a notice.'4. the lower appellate court held that the notice was insufficient because it said: 'on going through the notice served by the plaintiffs, i find that it was a notice for two months served; it was given on the 26th day of pous, hence the time allowed by the notice expired on the 26th day of falgun. on a perusal of.....
Judgment:

Wilson and Beverley, JJ.

1. This is an appeal from a decision of the Subordinate Judge of Sylhet, affirming the decision of the Munsif of Habigunge. The suit was to eject a tenant from his holding. Various questions arose in the case. Ultimately it was held as a matter of fact in both Courts that the defendant was a tenant not entitled to occupancy right, but a tenant liable to be ejected on proper notice.

2. One of the issues raised was, whether notice had been served upon the defendant, sufficient to determine the tenancy of a tenant not having occupancy right.

3. The notice given was a two months' notice served on the 26th of the month of Pous. It, therefore, expired on the 26th Falgun. The first Court held that the notice was insufficient on this ground. 'Notices were indeed served, but their terms did not expire at the end of the year. I therefore find that the notices were not served according to law, and therefore the tenants cannot be evicted under such a notice.'

4. The lower Appellate Court held that the notice was insufficient because it said: 'On going through the notice served by the plaintiffs, I find that it was a notice for two months served; it was given on the 26th day of Pous, hence the time allowed by the notice expired on the 26th day of Falgun. On a perusal of Section 106, Act IV of 1882 (that is, the Transfer of Property Act) I find that the notice to eject a tenant holding for one year should be for a term of six months, and that the last day of that term should correspond with the last day of the year. That being so, the notice under consideration being contrary to the above section, was in my opinion illegal.'

5. The ground taken by the first Court, viz., that the notice must necessarily, and as a matter of law, terminate with the year, is opposed to the most recent authorities. It is enough to refer to the case of Jagut Chunder Rai v. Rupchand Chango I.L.R. 9 Cal. 48 : 11 C.L.R. 143 and to Badha Gobind Koer v. Bahhal Das Mukherji ante. p. 82. In this latter case the law on the subject is discussed in some detail, and the judgment negatives the view that it is absolutely necessary that a notice showed terminate at the end of the year. The notice must be in respect of the date of determination of the tenancy, as well as in all other respects a reasonable notice.

6. Then, again, the ground taken by the lower Appellate Court is not correct for an obvious reason. Notice was given on the 26th Pous in the year 1288 B.S. (1881-82), and it expired on the 26th Falgun in the same Bengali year, and the Transfer of Property Act did not come into operation until a subsequent date. The Act, therefore, cannot affect the case, even assuming that the section referred to, viz., Section 106 of the Transfer of Property Act, could apply to such a holding as the one in question. But we think that the decree should be sustained on another ground. A notice must be a reasonable notice. Prima facie, no doubt, it is a question of fact whether a notice under the circumstances of a particular case is reasonable, and one to be dealt with by a Court dealing with facts and not by this Court on second appeal. But, on the other hand, it is a question of law for this Court to determine on second appeal whether there is evidence before the Court on which a Court could properly arrive at any given conclusion of fact. If there be no evidence which can properly support a finding, we ought not to send the case back in order that the lower Court may consider the question. In the present case notice was served on the 26th Pous to quit on the 26th Falgun. The plaint alleged that cultivation begins in the month of Falgun. The written statement denied that in terms, and stated substantially that cultivation begins in the month of Pous. In the grounds of appeal filed in the lower Appellate Court, the plaintiff admitted that cultivation begins in the months of Magh and Falgun, and that those are the months for letting out. It is admitted that there is no evidence on the record to throw further light on the question. Under those circumstances, we think that it would be impossible to hold that a two months' notice given on the 26th Pous, and ending the 26th Falgun, could be a reasonable notice to the defendant for him to turn out of that holding in time to allow somebody else to come in, and cultivate in the month of Magh, or in time to enable the defendant to have a reasonable chance of obtaining some other holding before cultivation begins. We think, therefore, that on this ground, although not on the grounds stated by the lower Courts (in which we are unable to agree) the notice is not a reasonable notice.

7. The appeal will be dismissed with costs.


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