1. This is a suit brought to recover possession of a mauza and for incidental relief, on the allegation that the plaintiff is the proprietor, zemindar and holder of Lachmipore estate of which this mauza forms part. It is said that the mauza was held by the defendant's father under several mustagiri settlements, and has now devolved on them.
2. By way of defense it is pleaded that the plaintiff has no title, that the defendants have a permanent right, and that in any case the suit for recovery of possession cannot succeed for want of proper notice. The plaintiff's title is established: no further question arises in this suit upon that. Both the lower Courts had decided against the plea of permanent right. The first Court held that no sufficient notice to determine the lease had been given, and on that ground it dismissed the suit, but at the same time incorporated in its decree what in effect is a declaration that the defendants have not a permanent right. The lower appellate Court considered that sufficient notice had been given, and, therefore, passed a decree in plaintiff's favor. On appeal to the High Court Mr. Justice Lal Mohan Doss held that the notice given was insufficient. He 'dismissed the suit, and declining to go into the question of the permanency of the defendant's holding, he restored the decree of the first Court. This decree was not, therefore, in conformity with his judgment, because the decree of the first Court asserted the permanent right on which the learned Judge, Mr. Justice Lal Mohan Doss, in the course of his judgment, declined to decide. On appeal before us the principal question has been as to whether notice was necessary, and if necessary then whether proper notice had been given. It has been contended that notice was not necessary, because there was a disclaimer which relieved the plaintiff from any difficulty that he might otherwise have been under, by reason of the non-efficiency of the notice. But this declaimer on which the plaintiff relies was not prior to suit, but is an inference to be drawn from what is said to be a denial of title, in the written statement in this suit. Even if the written statement be treated as a denial of title still I am of opinion that that did not relieve the plaintiff of the obligation to give notice, if notice was required. In favor of the view that there was a disclaimer which rendered notice unnecessary, reliance has been principally placed upon a decision of Sir Charles Sargent in Gopalrao Ganesh v. Kishor Kalidas (1). I doubt whether the point really arose in that case, for it appears from a passage in the judgment of the Subordinate Judge, as reproduced in the report of that case, that in view of the pleadings and the conduct of the suit the defendant could not properly have been allowed to rely on the absence of notice. But in any case that decision cannot now be regarded as establishing the proposition that a denial of title made in the written statement for the first time absolves the plaintiff from the necessity of giving notice. This, I think, is to be gathered from the subsequent decisions of the Bombay High Court. In Purshotambapu v. Dattatraya Rayaji (2) Sir Charles Sargent recognised that there were other decisions which were opposed to his determination, and in that case in particular Sir Charles Sargent says : It is not necessary to express an opinion on that view of the rights of the parties in the general case, as here the defendant No. 4, who is the real defendant, having purchased the third defendant's interest, not only alleged by his written-statement that his alien or was a permanent tenant, but also that the defendant No. 3 had not received legal notice to quit; meaning that, even if he were only a yearly tenant, as allegedly the plaintiff, the latter had not given him the legal notice, and could not recover in ejectment. Having thus pleaded an alternative defence, as he was entitled to do, the defendant cannot, 'we think, be regarded as having consented to the contract of yearly tenancy being treated as cancelled.' Now, in this case there is this alternative defence, and an issue has been raised on that basis, so that it is clear that even according to Sir Charles Sargent's own decision in Purshotambapu v. Dattatraya Rayaji his previous decision would not aid the plaintiff's contention. The matter does not rest there. In Vithu v. Dhondi 15 B. 407 Mr. Justice Telang puts the doctrine of disclaimer on its proper footing. He there recognizes the distinction' between a disclaimer operating as a waiver of the requisite notice in a tenancy determinable by notice and disclaimer operating by way of forfeiture in the case of a fixed lease : and he goes on to decide that ' even if there had been any disclaimer, its occurrence after the institution of the suit would prevent the plaintiff from succeeding without proof of legal notice to quit.' In Dodhu v. Madhavrao Narayan Gadre 18 B. 110 at p. 114 Sir Charles Sargent recognised the authority of Vithu v. Dhondi 15 B. 407 so that it is clear that Dr. Rash Behary Ghose's argument as far as it is based on Sir Charles Sargent's decision in Gopalrao Ganesh v. Kishor Kalidas C.R. 527 has lost the foundation on which it once rested. There are cases in the Madras High Court to which our attention has been directed by Dr. Rash Behary Ghose, and in particular the cases reported in Chindambaram Pillai v. Sabapathi Pillai 1 M.L.J. 218 and Kizhakkinyakath Abdulla Naha v. Karuthamakkakath Moidin Kutti 17 M.L.J. 287. Those cases, no doubt, as they stand, support the proposition for which he contends, that is to say, that a denial of title in the written statement is a sufficient waiver of notice; but the first of those cases purports to rest on Sir Charles Sargent's decision in Gopalrao v. Kishor C.R. 527 and the second merely to follow the first; whereas, we find, on the other hand, that in a more recent decision reported in Peria Karuppan v. Subramanian Chetti 31 M. 261 a different view is taken. Turning to the Calcutta authorities we find that the cases in Frannath Shaha v. Madhu Khulu 13 C. 96 and Nizam-ud-din v. Mamtaz-ud-din 28 C. 135 are opposed to the plaintiff's contention in this case, though it must be conceded that the language used in the judgments in those cases does not mark the distinction between the waiver of notice in relation to a tenancy determinable by notice and the forfeiture of a lease for a fixed term. Then if we turn to the English authorities on which, after all, these Indian cases rest it is clear, on the authority of Doedem Lewis v. Cowdar 1 Cromp. Mes. Ros. R. 398 that a denial of title after suit does not amount to a waiver of the notice to which the tenant is ordinarily entitled. Whether or not there can be a waiver of notice by a denial in the written statement in these tenancies to which the Transfer of Property Act applies, it is not necessary now to decide : but the conclusion to which I now come is that the first point argued before us on behalf of the plaintiff, that is to say, that there has been disclaimer of the plaintiff's title which did away with the necessity of notice, fails.
3. The next point is as to whether sufficient notice was given. The learned Additional Subordinate Judge considered that sufficient notice was not given. The District Judge, on the other hand, thought that there had been the requisite notice. The facts are that 18 days' notice was given, and it was a notice for the determination of the tenancy neither with the year of the defendant's tenancy nor with the end of the Fasli year. In order to determine what notice would be right, we must first see what the lease was. It has been described to us by the plaintiff as a middleman's lease pure and simple. The document has been placed before us, and we are unable to accept that view. In certain aspects it must be regarded as a lease for agricultural purposes, and so it does not come within that part of Section 106 of the Transfer of Property Act which provides that a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.' The state of the authorities on the Question of notice cannot be regarded as satisfactory; and all that we are able to say, sitting as a Division Bench is that there must be a reasonable notice, and that the notice need not necessarily determine the tenancy at the end of a year. But it will be for the final Court of fact, in each case, to determine what is reasonable notice having regard to all the circumstances, and whether it would not be reasonable, in the circumstances of the particular case, for it to determine with the year; and that is a matter which appears to us has not been sufficiently considered by the District Judge. Possibly the authorities were not within his reach. Even in relation to a middleman's lease, pure and simple, it has been said by Mr. Justice Norman in Bunwaree Lall Roy v. Mohima Chunder Koonal 13 W.R. 267 'that the principle which applies to the case of ryots applies to the case of middlemen, and that the latter cannot be turned out by the zemindar without a reasonable notice, notice which we are disposed to think should expire at the end of the year.' And the learned Judge gives his reasons for this view. Then there is a decision which certainly is deserving of attention and respect in the case of Kishori Mohun Roy Chowdhury v. Nund Kumar Ghosal 24 C. 720 where Sir Francis Maclean, C.J., discussed the question as to the notice to which a tenant is entitled before he can be ejected. It may be that as yet there is no-definite rule of law applicable in the case, where as here the tenancy does not come within the operation of the Transfer of Property Act. It has been said and said truly, that the tendency of the law is to narrow the field of uncertainty, and the growth of law in various directions points to the substitution of the fixed for fluid, and although it cannot be said that any fixed rule has beer established by the cases to which I have referred, I think they show a tendency in that direction, that is to say, as to the length of notice and the time at which the notice should expire, and the lower appellate Court may we'll have regard to this tendency when it comes to determine, as it must, the question whether or not in all the circumstances of this case reasonable notice has been given, reasonable, that is to say, both in length and as to the time at which it is to come into effective operation.
4. There only remains one other point to be noticed, and that is the dispute between the parties as to whether the defendants had a permanent right incapable of determination by notice. The matter has been discussed in considerable detail by the first Court. Though the District Judge purports to come to the same conclusion, his treatment of the subject cannot be accepted as satisfactory or indeed as a compliance with Section 574 of the Code of Civil Procedure. The matter in dispute is one of great importance to the parties and deserving of a far fuller discussion than the learned District Judge has bestowed upon it: and we cannot accept the few lines in which he has disposed of this part of the case as a judgment in accordance with the law. It is quite true that this question of the permanency of the tenure as decided unintentionally by Mr. Justice Lal Mohan Doss has not been made a subject of appeal to us, but Dr. Rash Behary Ghosh very properly has allowed this question to be raised : as he felt that it would be merely taking advantage of a mistake--and unwitting mistake--on the part of the learned Judge, Mr. Justice Lal Mohan Doss, if that question were not discussed here: and, it is for this reason that we have gone into the question as to how far the District Judge has satisfactorily dealt with the topic of the permanency of the tenure. It is impossible for us in second appeal to deal with this matter on the materials before us. At the same time we feel that after the prolonged litigation and the expense and trouble it has involved, it would be most undesirable to shut out this question seeing that both parties desire it to be determined in this suit.
5. What we, therefore, must do is to reverse the judgment of Mr. Justice Lal Mohan Doss and set aside the judgment of the District Judge, and we send back the case to the lower appellate Court in order that it may be determined whether the permanent right pleaded and set up by the defendants has been established, and, if that has not been established, then whether reasonable notice has been given entitling the Court to hold that the tenancy has been determined. Those are the only points that now remain for discussion in the case, and they must be dealt with by the lower appellate Court where the case must be heard and determined in the light of the foregoing remarks.
6. The costs of the High Court throughout will abide the result.
7. This judgment, it is conceded, will govern the other appeals Nos. 92 to 94.