C.C. Ghose, J.
1. This is an appeal against a judgment of my learned brother Mr. Justice Pearson dated the 1st February 1926, by which he decreed the plaintiffs' claim for rent aggregating to a sum of Rs. 1511-14-0 and for ejectment from premises No. 1, Raja Brojendra Narain Roy Street, against the defendant Kesoram Poddar.
2. The facts, shortly stated, are as follows : It appeal's that the property in question is one of several parcels comprised in a lease for 25 years from the 23rd July 1919, granted by the Maharajah Sir Manindra Chandra Nundy on the 29th July, 19.19, in favour of three persons who are described as the Kallas. On the 22nd December 1919, there was an assignment of the lease by the then original lessees to the present defendant Kesoram Poddar. The premises in question were busti lands and the defendant Kesoram shortly after the last mentioned date proceeded to divide the said busti lands into two portions, one of which was called the eastern portion and the other the western portion. The eastern portion was let out to two tenants named Kamini Dasi and Benode Behari Ghosh. As regards the western portion to which the present suit relates, it appears that Kesoram retained possession thereof and it is said that he erected thereon a pucca house at considerable expense. On the 7th April, 1923, Kesoram assigned in his turn the said lease dated the 29th July 1919, to one Bhagwandas Kalla. It appears that after the last mentioned assignment of the lease, Kesoram Poddar became a tenant or sub-lessee of the premises comprised in the said original lease. On the 30th September 1923, Bhagwandas Kalla, the last assignee, assigned in his turn, the said lease to the present plaintiffs who became also entitled to the arrears of rents due from the tenants in actual occupation of the lands.
3. It appears that at no time from the date when the defendant Kesoram became tenant of the said western portion of No. 1 Raja Brojendra Narain Roy Street, did he pay any rent whatsoever for the same and in this suit the present plaintiffs are seeking to recover from the defendant a sum of Rs. 1511-14-0 being the rent due from the 7th April 1923 up to the end of the Bengali month, Magh 1331. The rent is calculated at the rate of Rs. 68 per month. So far as the claim for rent is concerned, there was and is no dispute and at the trial before Mr. Justice Pearson, the defendant did not resist it.
4. So far as the claim for ejectment is concerned, it appears from the defendant's written statement that he wanted to raise the pleas that the said western portion was excluded from the operation of the assignment of the 7th April 1923, and that the notice to quit which had been given by the plaintiffs' solicitor on the 9th January 1925, was bad in law and that in those circumstances the plaintiffs were not entitled to any decree for ejectment.
5. At the hearing before us, the question of the invalidity or otherwise of the notice to quit has been urged and two further points have been taken, namely, (1) that the plaintiffs being minors at the time when the assignment of the 30th September 1923, of the lease in their favour was executed by Bhagawandas Kalla, they had acquired no title whatsoever to the property in question and (2) that having regard to the fact that the defendant, Kesoram Poddar, after he had obtained an assignment of the lease from the Kallas on the 22nd December 1919, had erected a pucca house on the said western portion at considerable expense, no decree for ejectment could be awarded against him unless the plaintiffs were prepared to pay compensation to him.
6. As regards the second of these points, it is one which is clearly unsustainable. The plaintiffs were the lessors of the defendant Kesoram Poddar. He had at torned to them as a tenant and it did not and does not lie in his mouth to question in any manner whatsoever the title of his lessors. It may also be noticed in passing that it is not a point which was taken at the trial before Mr. Justice Pearson, nor one taken in the memorandum of the appeal.
7. As regards the third point, namely, whether the defendant was entitled to compensation, it appears that the pucca house in question had been erected on the western portion of the said premises before the defendant became a tenant under Bhagawandas Kalla. It was not a house or a pucca structure which was erected after the defendant had become a tenant of the premises and while the landlord stood by. In these circumstances the assignment of the 7th April 1923, must be taken to have included, among others, the pucca house which had already been erected by the defendant on the western portion of the premises. It is a little difficult, therefore, to understand how any claim by the defendant for compensation can possibly arise. The third point, therefore, must be negatived.
8. There remains, therefore, for consideration the question of the invalidity or otherwise of the notice to quit. The argument which has been represented to us is this. It is said that Kesoram became a tenant of the western portion of the premises in question from the 7th April 1923 and that, therefore, the notice to quit which had been given by the plaintiffs' solicitors calling upon the defendant to vacate the premises by the end of Magh 1331, B.S., was not a valid notice to quit because the tenancy was not one according to the Bengali calendar but was one from month to month from the 7th April 1923. It is further urged that assuming for the sake of argument that rents were payable according to the Bengali months, it could not be inferred therefrom that the tenancy itself was one which was or could be regulated by the Bengali months.
9. Now, the defendant did not go into the witness box. It is said that at the time of the hearing before Mr. Justice Pearson he was ill and could not adduce any evidence. Be that as it may, the materials before Mr. Justice Pearson consisted of the various documents referred to above and the notice to quit and of the reply thereto. In the notice to quit a claim was put forward that the plaintiffs were entitled to recover rent up to the end of the Bengali month of Magh 1331. In reply to the notice to quit which is printed at p. 21 of the paper-book, it was stated on behalf of the defendant that he was agreeable to pay the rent claimed. Prom these two documents it would appear that the defendant at that time, viz., on the 20th January 1925, did not, and was not minded to raise any question whatsoever that the rents were not payable according to the Bengali month. The matter, however, does not rest there. From an examination of the assignment of the arrears of rent dated 5th September 1924, (being a document to which Kesoram was a party) it appears that in respect of various premises included in the original head lease which had vested in the plaintiffs, rents were being paid by the tenants according to the Bengali months (see, in this connexion Schedule, Part II, statement of arrears of rent due to Bhadra 1330 B.S. at p. 77 of the paper-book.) It is true that in respect of one or two tenants mentioned in the said schedule, months according to the English calendar are mentioned. There were originally on the western portion of the premises in question two tenants named Dallu Singh and Gaya Prosad Singh into whose shoes Kesoram had stepped in.
10. As stated above, rents were due from Kesoram from the date when he attorned as tenant, namely, 7th April 1923. In that list there is also mentioned that the tenants on the eastern portion, namely, Kamini Dasi and Benode Behari Ghose, had to pay certain rents up to the month of Bhadra, 1330. The list itself is a statement of arrears of rent up to the end of Bhadra, 13S0 B.S., showing that rents were collected according to the Bengali months. It appears also from the documents printed at pp. 37, 46, 61 and 63 of the paper-book that rents payable to the head lessor were regulated by the Bengali months. In these circumstances it would not be, in my opinion, a violent assumption to hold that rents in respect of the premises comprised in the head lease and in particular in respect of premises No. 1 Raja Brojendra Narain Roy Street, had to be and were paid according to the Bengali months. It is said, however, that although the rents might have been paid according to the Bengali months, it does not follow that the tenancy was are which was regulated by the Bengali months. As stated above, there is no oral evidence in this case. Whatever evidence there was on the record is documentary and on the evidence it has not, in my opinion, been made out that the tenancy in this case was one which was not regulated by the Bengali months, but one which-was regulated by the English months.
11. On a consideration of all the circumstances of the case, I am driven to the conclusion chat the tenancy in this case was one which was regulated by the Bengali months and that the notice to quit calling upon the defendant to vacate the premises by the end of the month of Magh 1331, was a valid and proper notice to quit. That being so, the last point slso must be negatived and in my opinion this appeal fails and must be dismissed with costs.
12. I agree.