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Shama Churn Mitter and ors. Vs. Wooma Churn Haldar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal36
AppellantShama Churn Mitter and ors.
RespondentWooma Churn Haldar
Cases ReferredLessee of Rodd v. Archer
Excerpt:
landlord and tenant - notice to quit--bengal tenancy act (viii of 1885)--suit for ejectment--notice including some land of which the defendant is found to be not in possession. - .....limitation, denial of the plaintiffs' right, denial of the notice, and a plea that a part of the land in dispute belonged to the defendant and had been held by him for twelve years, and that the defendant had acquired a right to the whole of the land in dispute by twelve years' adverse possession.2. the first court found for the plaintiffs upon all the questions raised, except one, namely, that as to the defendant's title by adverse possession to 1 3/4 cottahs of land out of the land in dispute, and it accordingly gave the plaintiffs n decree for the land in dispute excepting 1 3/4 cottahs.3. against this decree of the first court the defendant preferred an appeal, and the plaintiffs a cross-appeal. the lower appellate court has dismissed the plaintiffs' cross-appeal, holding that they.....
Judgment:

Banerjee, J.

1. This appeal arises out of a suit for ejectment upon a notice to quit. The defence was limitation, denial of the plaintiffs' right, denial of the notice, and a plea that a part of the land in dispute belonged to the defendant and had been held by him for twelve years, and that the defendant had acquired a right to the whole of the land in dispute by twelve years' Adverse possession.

2. The first Court found for the plaintiffs upon all the questions raised, except one, namely, that as to the defendant's title by adverse possession to 1 3/4 cottahs of land out of the land in dispute, and it accordingly gave the plaintiffs n decree for the land in dispute excepting 1 3/4 cottahs.

3. Against this decree of the first Court the defendant preferred an appeal, and the plaintiffs a cross-appeal. The Lower Appellate Court has dismissed the plaintiffs' cross-appeal, holding that they have failed to make out their title to 1 3/4 cottahs in regard to which their claim had been disallowed by the first Court, and it has decreed the defendant's appeal on the sole ground that the notice is bad in law, that is to say, bad because it includes some land which the defendant is found not to hold under the plaintiffs.

4. In second appeal it is contended for the plaintiffs-appellants that the decision of the Lower Appellate Court, so far as it decreed the defendant's appeal, is wrong in law, and that the notice, notwithstanding the defect found in it, was not so bad as to disentitle the plaintiffs to maintain a suit in ejectment upon the basis thereof.

5. We are of opinion that the plaintiffs' contention is sound. The notice requires the defendant to give up possession of 1 bigha and 5 chittacks of homestead land with tank, situate in the Bazar of Diamond Harbour, Pergunnah Mooragacha, Zillah 24-Pergunnahs, held under the plaintiffs as tenant-at-will. The notice does not set out the boundaries of the land. The only defect that has been found in the notice is that, whereas it states the area of the defendant's holding to be 1 bigha and 5 chittacks, the true area is 1 3/4 cottahs less. And the question is, whether that is a defect in the notice sufficient to justify our holding that the notice is bad in law. Considering that the error is only one in relation to the area, and is a very small error, and considering that the defendant never took any objection that he was misled by reason of this defect in the notice, we think it would be wrong to hold that a defect like this is sufficient to vitiate the notice. To bold that any trifling error in the statement of the area vitiates a notice to quit, would be to throw an unnecessary difficulty in the way of parties seeking ejectment upon service of notice, and to require them to measure their lands and to set out the areas with a degree of accuracy which the ordinary purposes of life do not render it necessary for them to observe. As was remarked by Mr. Justice Patteson in Doe d. Williams v. Smith (1836) 5 A. and E. 350 it is not required that a notice should be worded with the accuracy of a plea. The view we take is supported also by the eases of Doe d. Cox 1(1803) 4 Esp. 185; 6 Revised Rep., 850] and Doe, Lessee of Rodd v. Archer (1811) 14 East. 245; 12 Revised Rep. 509.

6. The judgment of the Lower Appellate Court is, upon the question of the validity of the notice, therefore, in our opinion, wrong in law, and must be set aside, and the case sent back to that Court in order that the other questions raised in the appeal of the defendant before that Court may be disposed of. Costs will abide the result.


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