Naharullah Patwari vs Madan Gazi and others

Macpherson, J.—This is a suit to eject an under-raiyat. The first Court decreed the suit. The Lower Appellate Court has dismissed it on the ground that the notice u/s 49 of the Tenancy Act was insufficient. It appears that the notice which was one requiring the defendant to quit at the end of the year Chait 1298, was served on the 28th Assin 1298, and the suit was brought on the 30th Baisak 1300. Sec. 49 provides :--An under-raiyat shall not be liable to be ejcted by his landlord, except (a) on the expiration of the term of a written lease; (b) when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. The defendant in this case does rot hold under a written lease. The Subordinate Judge apparently holds the notice insufficient because it did not require the defendant to quit the land at the time when the landlord could first bring his suit in ejectment. The section does not prescribe any period of notice or that the suit shall not be brought until the expiry of a certain time after expiry of the period of notice. The effect of the section seems to be that the landlord Can serve a notice to quit at any time in the course of the year but that he shall not eject the raiyat until the end of the agricultural year next following the year in which the notice to quite it served, that is to say, the under-raiyat must, under any circumstances, get a full year expiring at the end of the agricultural year from the time when the notice is served. The legislature advisedly seems to have refrained from fixing any period of notice and the section was probably framed, as it is framed with the view of doing away with all questions of the reasonableness or otherwise of the notice, it being considered sufficient to intimate the landlord''s intention of determining the tenancy and leaving the law to operate so that the raiyat, if he chooses to remain on the land, shall not be ejected until a certain time had expired after the notice was served. The circumstances, that the landlord has called upon the tenant to quit at a time when he could not compel him to do so, does not, we think, vitiate the notice. A notice to quit without specifying any period would be open to the same objection on the ground that it was the notice to quit at once. In the absence of any provision either as to the period or the form of the notice and having regard to the form in which the section is drawn, the construction, which the Subordinate Judge has put upon it, cannot, we think, be supported.

The notice was in our judgment a sufficient notice under the law, and that feeing so, the decision of the Subordinate Judge must be reversed and the decision of the Munsiff restored.