Aidew Sandique vs R.R. Bharadai

Deka, J.—This appeal is on behalf of the plaintiff arising out of a suit for rents as well as for eviction of the defendant from a house that was let out to the defendant in 1947. The defendant contested the suit on the ground that there was, no proper notice to quit. The learned Munsiff held that the writing whereby the tenancy was created was dated 24-11-1947 and as such a notice requiring the defendant to give vacant possession by the end of June 1950 was not a valid notice according to the terms of Section 106 , T.P. Act, and he refused to pass a decree for eviction. There was a decree for arrears of rent.

On appeal by the plaintiff against the judgment of the learned Munsiff refusing the decree for eviction, the learned District Judge, U.A.D. held that the learned Munsiff was wrong in holding that the tenancy commenced with effect from 24-11-1947 where as the document itself made it clear that the tenancy started from 1-12-1947 and it was a monthly tenancy terminable by the end of a month of the Gregorian Calendar.

According to the learned District Judge, the tenancy could have, been terminated by a notice which required vacant possession by 30-6-1950 has was done in plaintiff case. But on the other hand he held that the plaintiff having asked for delivery of possession the same date, it could not be, construed that the notice was proper because with a view to deliver possession on the 30th June the defendant was lay implication required to leave the premises before the termination of the 30th June, that is, before the month of the tenancy came to an end.

I have examined the copy of the notice (Ex. 4) that was served on the defendant and in my opinion the learned District Judge was too strict in construing the same to hold that the plaintiff asked for possession before the termination of the English Calendar month. All that the plaintiff wanted was that the defendant should quit the land by the 30th June which act by itself'' would amount to delivery of possession to the plaintiff.

An independent act of delivery of possession to lessor is not essential in case of the lessee quitting the land under a lease, and as such, it cannot be construed that the intention of the plaintiff was that the defendant should give up possession before the midnight of 30-6-1950. Nor does it appear from the record that the defendant understood it to be otherwise.

Mr. Barua for the appellant in support of his contention relied on the Privy Council case reported in--''Harihar Banerji v. Ramshashi Roy'' AIR 1918 PC 102 (A), wherein it is held that the notices to quit though not strictly accurate or consistent in the statements embodied in them may still be good and effective in law; the test of their sufficiency is not what they would mean, to a stranger ignorant of all the facts and circumstances touching the holding to which they purr port to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, they are to be construed not with a desire to find fault in them which would render them defective but to make such use of them as may be possible--(ut res magis valeat quam pereat).

In this case, it would have served the intention of the notice if the defendant would have vacated the land by the 30th June and in this view, I cannot say that there was really anything repugnant to the provisions of Section 106, T.P. Act, in the notice that was served on the defendant. The learned District Judge took a literal view of the words used in the notice and did not seem to consider the real implication there of nor did he construe it liberally.

In this view of things, I set aside the order of the lower appellate Court and direct that the decree for eviction be passed against the defendant. Since the appeal is not opposed, there will be no order as to costs in this Court and the defendant is given one month''s time to vacate the house in question. The appeal is allowed with costs in the subordinate Courts.