Lore Nath Gope vs Petambar Ghose and Others

This appeal arises out of a suit brought by the Plaintiffs to eject the Defendant, Appellant, after notice from a holding which the Plaintiff alleged the Defendant held as an under-raiyat. The Defendant denied the service of the notice or that it was sufficient, and he alleged that the Plaintiff had abandoned their holding, and that he had obtained a settlement from the landlord. Ho also pleaded the statute of limitation against the Plaintiffs'' suit.

The Munsif held that the Plaintiffs had served the notice and that it was sufficient in law. He also found as a fact that the Defendant had not obtained a settlement from the zemindar or the ijaradar and he did not consider that the suit was barred. He accordingly made a decree in favour of the Plaintiff''s.

On appeal by the Defendant the Subordinate Judge has affirmed the judgment of the Munsif. The judgment of the Subordinate Judge is an extremely careful one, and states in specific terms the questions which were raised before him with the arguments. In the result the Subordinate Judge substantially agrees with the Munsif that the Plaintiffs'' suit was well-founded and he accordingly dismissed the appeal.

The Defendant has appealed specially to this Court and the case on his behalf has been argued by Babu Gobind Chunder Dey Roy with much ability. He has taken three objections to the judgment of the Subordinate Judge. In the first place he argues that the Subordinate Judge had not come to any express finding regarding the settlement alleged to have been obtained by the Defendant from the ijaradar, for if there was such a settlement the suit of the Plaintiffs would be affected by two years'' limitation, in other words ho says that the Subordinate Judge ought to be asked to find specially regarding the settlement. In the second place, he contends that the notice was not served in accordance with Rule 3 framed by the Local Government under the provisions of the Tenancy Act, inasmuch as the service was not made by proclamation and beat of drum; and thirdly, that one of the Plaintiffs at least had abandoned the land and therefore a settlement had been effected with the Defendant by the ijaradar.

As regards the first point, namely, the settlement put forward by the Defendant the Subordinate Judge is of opinion, in agreement with the Munsif that there is not a tittle of evidence that the Defendant took a pottah of the land from the malik and then he goes on to say :--" Granting for argument''s sake that an ijaradar of the malik in collusion with the Defendants made a settlement with them behind the back of the Plaintiffs, just after or before the service of the notice, the act of the ijaradar is not binding on the Plaintiffs." From that passage we understand the view of the learned Subordinate Judge to be in the first place, that in reality there was no settlement such as the Defendant alleged, that the whole act was collusive and of a fraudulent character, merely colourable in its nature; and secondly, that even if there was such a colourable and collusive settlement with the Defendant, it took place just after or before the service of the notice. No doubt in some of the cases it has been held that when a suit is brought by a person alleging that he is an occupancy raiyat to recover possession of a holding against a person who says that he has derived title from the landlord, the limitation applicable is that applicable to a suit against the landlord, but in this case, upon the finding of the Subordinate Judge, no question of limitation would arise. Admittedly if the alleged settlement was made just after or before the service of the notice, then the suit would seem to be within two years. On the other hand, if the settlement was merely colourable one and not made in reality then, as the Subordinate Judge finds, there is no ground for supposing that that would affect the title of the Defendant.

Then comes the question of notice. In the first Court the objection as to the sufficiency of the notice appears to have been based on the ground that the notice ought to have been served through Court. As at present advised, we think the Munsif rightly held that there is no rule requiring that the notice should be served through Court, and that what is really required is that it should be served in the same manner as is provided in the Code of Civil Procedure, and the Munsif finds that this was done. There was no question raised before the Munsif as has been now raised, that the notice should have been served by proclamation and beat of drum. When the case came before the Subordinate Judge, the point for determination, as stated by him, was whether the notice was legally sufficient and, dealing with that point, the Subordinate Judge says, " the next ground urged on behalf of the Appellant is that the notice in question is insufficient in that it was mentioned therein that the Defendant should quit at the end of Chaitra 1300 B.S." There is not the faintest suggestion here of the objection now taken that the notice ought to have been served in the particular way contended for and it is obvious that, for the purpose of holding whether this objection is well-founded or not, a variety of matters would have to be discussed and considered which we are precluded from doing, in second appeal. We think, therefore, that we ought not to entertain this objection. The third objection relates to the question of abandonment. The Subordinate Judge dealing with the question of fact has come to the conclusion that there was no abandonment. We cannot interfere with that conclusion of fact in second appeal. The appeal must therefore be dismissed with costs