M.M. Dutt, J.
1. This appeal is at the instance of the defendant and it arises out of a suit for eviction.
The case of the plaintiff is that the defendant, who had been a tenant under him in respect of the suit premises, is a defaulter in payment of rent and that he has been using the suit premises for a purpose other than for the residential purpose for which it was let to him. It is alleged that the plaintiff determined the tenancy of the defendant by the service of a notice to quit directing him to quit and vacate the suit premises on the expiry of the last day of September, 1963, on these allegations, the plaintiff had prayed for eviction of the defendant from the suit premises.
2. The defendant has contested the suit by filing a written statement. He has denied the allegation of default and also the allegation that he has been using the suit premises for a purpose other than for the purpose of dwelling for which it was let to him. It has been further alleged by the defendant that the notice to quit was not served upon him and that the same was insufficient to terminate the tenancy. The case of the defendant is that his tenancy commenced on and from February 14, 1960, and as such, the notice to quit having sought to determine the tenancy on the expiry of the last day of September 1963, is illegal and invalid in law.
3. The defence of the defendant against delivery of possession was struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1953, inasmuch as he failed to comply with the provisions of Section 17 (1) or Section 17 (2) of the said Act. The learned Munsif, however, found that the defendant was a defaulter in payment of rent. He also found that the defendant has been using the premises for the purpose of his office although the same was let to him for residential purpose. On the question of notice, the learned Munsif found that the same was served upon the defendant, but he found that the notice to quit was insufficient inasmuch as the tenancy of the defendant commenced on February 14, 1960, and not on the 1st day of a month of English calendar. In view of his finding that the notice to quit was invalid, the learned Munsif dismissed the suit. There was an appeal by the plaintiff against the judgment and decree of the learned Munsif. The only point that was argued in the appeal on behalf of the plaintiff was as to the legality of the notice to quit. The learned Additional District Judge, 3rd Court, Alipore, came to the finding that although the tenancy commenced on and from February 14, 1960, there was an alteration in the month of the tenancy by mutual conduct of the plaintiff and the defendant. He has pointed out that the plaintiff realised rent for the broken period of the month of February, 1960 and thereafter, be had been realising rent month by month according to English calendar month and not from the 14th of a month to the 13th of the next month as held by the learned Munsif. The notice was accordingly held to be legal and valid. Upon the said findings, the learned Additional District Judge reversed the finding of the learned Munsif holding that the notice was illegal and invalid and decreed the suit for eviction.
4. In this appeal Mr. Joy Gopal Ghose, learned Advocate appearing on behalf of the appellant, has repeated the same contention as made on behalf of the appellant before the learned Additional District Judge, He has placed reliance on a Bench decision of this Court in Carrara Marble and Tarrazo Co. Ltd. v. Chani Chandra, : AIR1957Cal357 . It has been held in that decision that alteration of the month of a tenancy may be proved either by direct evidence by proving a new arrangement by which the month of the original tenancy was expressly altered or by circumstantial evidence showing that whereas formerly rent used to be realised from the middle of one month to the middle of another, subsequently rent for the broken period of this calendar month was either paid or adjusted and rent was paid from month to month according to English calendar. Further, it has been held that, if rent used to be realised from month to month according to English calendar both during the period when the monthly tenancy ran from the middle of one month to the middle of another and during the period when the monthly tenancy coincided with English calendar month, the mode of realisation is inconclusive. In my opinion, in the instant case the learned Additional District Judge has rightly held that there has been an alteration in the month of tenancy of the defendant. Although the tenancy commenced from February 34, 1960, the parties mutually agreed to the payment of rent for the broken period of the month of February and thereafter, month by month according to English calendar month. This decision, therefore, does not help the contention of Mr. Ghose. The learned Additional District Judge has referred to a passage from Foa's 'General Law of Landlord and Tenant', 8th Edition, page 603. It has been observed that where a tenant, who enters in the middle of a quarter by agreement, pays a proportionate rent for the broken quarter and afterwards on the regular quarter days, the tenancy is deemed to commence with the first of such quarter days which follows his entry, and notice to quit must be given accordingly. This observation also finds support from the statement of the law as made in Woodfall's Law of Landlord and Tenant, 25th Edition, --Article 2242 at page 1049. It is stated there that when the nature of a tenancy falls to be inferred from the mode of payment of rent, and the facts are that the tenant entered in the middle of a quarter, and paid rent for the broken period ending with that quarter, and subsequently paid his rent from quarier to quarter, his tenancy will be considered as running not from the original date of entry but from the quarter day to which he paid up, and notice to quit should be given accordingly. It has been further observed that, if he has not paid any rent, the tenancy will be deemed to have commenced on the day when he entered, and notice to quit at that time will be good. In the instant case also it has been already pointed out that the rent for the broken period Was paid and thereafter, the rent was being paid according to English calendar month. In another Bench decision of this Court presided over by P. N. Mookerjee, J. in Baidyanath Bhatacharjee v. Nirmala Bala Devi, : AIR1957Cal649 , it has been held that the manner or mode of payment of rents is an important element or factor to be considered on the question as to the month of tenancy. In view of the principles of law stated herein above, J affirm the finding of the learned Additional District Judge that the tenancy of the defendant was according to English calendar month and not from the 14th of a month to the corresponding day in the next month as contended on behalf of the appellant or as found by the teamed Munsif.
5. Mr. Ghose has also argued that there is no finding of the lower appellate court as to the service of the notice to quit. It may be recalled that the defence of the defendant was that the notice to quit was not served upon him. The learned Munsif, however, came to the finding that it was served upon the defendant although it came back undelivered with the endorsement of the postal peon 'left'. This finding of the learned Munsif was not challenged before the lower appellate court and as such, there was no occasion for the lower appellate court to come to any finding on the point: The appellant cannot in this appeal reopen the question as to the service of the notice. He should have argued the point before the lower appellate court as it is a point involving determination of facts.
6. In the result, the judgment and decree of the lower appellate court are affirmed and this appeal is dismissed. But, in view of the facts and circumstances of the case, there will be no order as to costs.
Let the records be sent down as early as possible.