Shaik Sona Ullah vs Troylukho Nath Goraie and others

This was a suit for ejectment upon notice to quit. The Court of first instance held that the notice was bad by reason of the land being agricultural. The Appellate Court has come to a different conclusion, and has remanded the case to the Court of first instance for trial on the merits.

The present appeal is by the Defendant.

It appears that the notice in question was issued by the Plaintiff upon the Defendant on the 7th Assin 1298, allowing him, the Defendant, fifteen days'' time to quit. The Defendant contended that the notice was bad in law, because he was entitled to a longer notice before he could be called upon to quit: and he said that he was a person who was in occupation of the land for upwards of twenty years, and therefore had acquired a right of occupancy. The land which is the subject-matter of this suit is described by the parties as garden land; but what is the true character of the land, whether it is land let out or used for agricultural or horticultural or any other purpose, the evidence does not distinctly show. The Munsif, however, relying upon the evidence of a single witness, was of opinion that the land was agricultural, and held that fifteen days'' notice was bad under sec. 106 of the Transfer of Property Act, and accordingly dismissed the suit. The Appellate Court, upon a consideration of the evidence, came to a different conclusion. It appears, however, that the evidence of both sides upon the question as to what is the true character of the land in question was not taken by the Munsif.

There is one other matter to which we think we ought to call the attention of the Court below, namely, that the notice in this case, which was served upon the Defendant, is a notice which apparently expired in the middle of the month. The second part of the sec. 106 of the Transfer of Property Act runs as follows:--"And a lease for 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. "With reference to this provision the question to which one ought to address himself is what in any given case is "the end of a month of the tenancy." If the end of a month of the tenancy in, this case was the 23rd Assin 1298 (15 days from the 7th Assin), the notice would be a good notice, otherwise not, and in this connection we might as well call the attention of the Court below to the case Bradley v. Atkinson ILR 7 All. 899. The case will be remanded to the Court of first instance to take all the evidence that the parties may desire to adduce, and then come to a decision as to whether the notice served on the Defendant is a good notice in law. Costs will abide the result.