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Biseswar Roy Vs. Pitamber Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal400,51Ind.Cas.44
AppellantBiseswar Roy;haran Mir and ors.
RespondentPitamber Nath and ors.;meharannessa Bewa and ors.
Excerpt:
transfer of property act (iv of 1882), section 106 - landlord and tenant--lease--rent payable yearly, whether makes lease from year to year--notice to quit, service of, mode of. - .....argued that the service was in accordance with law. on the other hand the respondents support the learned judge's view, and also urged that the notice was inadequate.6. as regards the length of notice, i think the learned subordinate judge was right. this is nothing to take the case out of the operation of the transfer of property act, and the mere fact that the rent was expressed as so much a year does not make the lease a lease from year to year. i hold, therefore, that the notice if served was adequate.7. regarding service the objection taken by the defendants is that there was no tender. the peon's report is that he found neither of the defendants at the house; he was told that the lady was indoors and that the boy had gone out to look after cattle, and then he beat a drum, read the.....
Judgment:

Walmsley, J.

1. These four appeals arise from one judgment which disposed of four appeals: those four appeals again arose from one judgment which disposed of four suits tried together.

2. All the suits were for ejectment after notice.

3. It will be convenient to deal first with Second Appeal No. 907. This arises from Appeal No. 29 and Suit No. 2102. It has been found that the plaintiff has a permanent mokurrari mourasi interest in the land. The defendants are a pardanashin lady and a minor boy, the heirs of a Mukhtear named Shahar Muhammad. The land from which the plaintiff wants to eject them is situated in the Municipality of Jamalpur, and a dwelling-house was built on it by Shahar Muhammad: he paid a rent of Rs. 3 a year, but he had no permanent interest. The plaintiff's case is that he caused a notice to be served on the defendants through the Civil Court on Bhadra 6th, 1321, calling upon the defendants to vacate the land in the following month of Aswin.

4. The first Court held that the notice was not sufficient and that the service was defective, while the lower Appellate Court differed as to the sufficiency of the notice but agreed that it was not properly served.

5. For the appellant-plaintiff it is argued that the service was in accordance with law. On the other hand the respondents support the learned Judge's view, and also urged that the notice was inadequate.

6. As regards the length of notice, I think the learned Subordinate Judge was right. This is nothing to take the case out of the operation of the Transfer of Property Act, and the mere fact that the rent was expressed as so much a year does not make the lease a lease from year to year. I hold, therefore, that the notice if served was adequate.

7. Regarding service the objection taken by the defendants is that there was no tender. The peon's report is that he found neither of the defendants at the house; he was told that the lady was indoors and that the boy had gone out to look after cattle, and then he beat a drum, read the notice aloud, and affiked a copy to a wall of the house. It appears, however, that there were servants present, but no attempt was made to tender the notice to the servants or to find the boy and tender the notice to him, and on a literal interpretation of the words of the section I must hold that the service was not good, for the drum beating and the affixing to a wall are of no avail unless tender or delivery is not practicable. The objection is very technical, but it must succeed, and the appeal must be dismissed with costs.

8. The other appeals raise different questions. The Courts below have held that the defendants hold their lands under one Hiramoni Devi, and that she has a ' bhogottar' interest as it is called. The learned Subordinate Judge refers to a solenamah, Exhibit A, and to the Record of Rights, and the argument for the appellant is that the statement in Exhibit A is not conclusive against the plaintiff, that it is of very little evidentiary value because it does not say that Hiramoni has a permanent right, and because the statement was made for the purpose of a particular suit and for consideration, and that the Records of Rights does not show the character of Hiramoni's tenancy.

9. It appears to me that the statement in Exhibit A cannot be whittled away on the grounds mentioned by the appellant: it is an important piece of evidence, and when the learned Subordinate Judge says that it binds the plaintiff he means that it is evidence against the plaintiff just as much as it would be against his lessor, not that it is conclusive against the plaintiffs. Then the Khatian clearly shows that Hiramoni is in possession: the special incident mentioned is that the interest is 'Jibitashatya;' but her interest is also described as 'Chirosthayi' and 'Nishkar'. I think the Court below is justified in holding that Hiramoni has a subsisting interest between the plaintiffs and the defendants, and that on that account the plaintiff cannot, at present, eject the defendants. It is not necessary to consider the position which will arise on the death of Hiramoni.

10. The appeals are dismissed with costs, there will be one set of costs in all the appeals.


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