Chapman and Mullick, JJ.
1. The appellant (sic) raiyat. He sued the defendant, who is an under-raiyat in ejectment. The learned Judicial Commissioner has in appeal dismissed the appellant's suit upon the ground that the provisions of Section 41 of the Chota Nagpur Tenancy Act have not been complied with. That section provides that non-occupancy raiyats shall not be ejected, except upon certain grounds, and the learned Judicial Commissioner holds that an under raiyat has at least the rights of a non-occupancy raiyat. This view is in our opinion erroneous. It is clear from the definitions in Section 4 of the Act that an under raiyat must for the purposes of the Act be treated as belonging to a class of tenants quite distinct from the class of non-occupancy raiyats. It is true that there is no provision in the Act dealing separately with the class 'under-raiyate' defined in Section 4, but that does not do away with the effect of the definitions in Section 4, which is that where the Act refers to non-occupancy raiyats the reference must not be taken to include under-raiyats. It is only those provisions of the Act which deal with tenants generally that can be applied to under-raiyats.
2. The result is that, for the purpose of deciding the questions raised by a suit for the ejectment of an under-raiyat by a raiyat, the Court can have regard only to the relations established between the parties either by contract or by custom. Where there is evidence of a lease (oral or written), the matter must be decided by reference to that evidence. Where there is no evidence of a lease, the tenancy would no doubt be ordinarily held to be a tenancy from year to year (Section 106, Transfer of Property Act, by analogy), the year for this purpose being held to be the agricultural year. It is also necessary to bear in mind that, before a suit in ejectment of a tenant of any kind can rightly succeed, it must be shown that the tenancy has been terminated. But there is no statutory provision that the tenancy of an under-raiyat in Chota Nagpur can be terminated only by a notice in writing.
3. In the present case ii may be taken that the under-raiyat is a tenant from year to year: The appellant asserted that he asked the defendants to give up possession in Pous of the previous year. This assertion was not denied in the written statement, and no point in connection with the sufficiency of the notice was raised in either of the Courts below. No custom of right to notice for any particular period was ever alleged, and it was never suggested that the time given to quit was unreasonably short, or that the period of the notice did not expire with the periodic year of the tenancy. We take it, therefore, that the tenancy was terminated before the suit was brought. The appellant was, therefore, entitled to succeed. The appeal is allowed. The judgment and decree of the learned Judicial Commissioner is set aside. The suit is decreed with costs in all Courts. The appellant is entitled to khas possession.