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TMI Blog1918 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned up to the service of the aforesaid notice to quit. The second set of defendants consists of three limited companiestwo milling companies, numbered 8 and 9 respectively; Andrew Yule (Limited), timber merchants, the managing agents of the two first-named companies, and numbered 10, and a firm named Amrita Lal Ghose and Sons, numbered 11. These latter defendants, Nos. 8, 9,10, and 11, are stated to be the sub-tenants of the principal defendants, and being in the possession of the above-mentioned piece of land are made pro forma defendants. In the third paragraph of the appellants' case it is in effect stated that the only questions in the case which have up to the present been decided arefirst, the question whether, assuming that the principal defendants were the tenants of the plaintiffs, of the aforesaid piece of land from year to year, the notice to quit alleged to have been served upon them was sufficient and proper in form ; and, second, the question whether it had been duly served. The Munsiff in whose Court the suit was filed decided both these questions in favour of the defendants, and on this ground dismissed the suit. His decision was reversed upon appeal by the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t suit to recover a sum of ₹ 3:14 : 10 arrears of rent due to the deceased Rammoya Roy. 8. In the second paragraph of the plaint in the former suit it is stated that the plaintiffs have been in possession of about six cottahs of bastu land, mentioned in the schedule, situate in the said village of Char Ramkrishtopur, on payment of the prescribed annual rent of 25 rupees thereof as Sarbararkars of an annual gar mourashi, thika tenant under the plaintiffs, ₹ 12: 8 annas being annually paid by them separately by four instalments to the plaintiff. The statement that the rent of 25 rupees a year issued out of six cottahs of land is undoubtedly inconsistent with their claim in the present suit, in which they allege that it issues out of a holding about 2 bighas 2 1/2 cottahs in extent. It is not, however, more inconsistent with their present claim, than is the defence put in by the defendants inconsistent with the admission they made before the Subordinate Judge, to the effect that they were in possession of a holding belonging to the plaintiffs formerly occupied as tenant by one Ramnidhi Manjhi, and that this rent of 25 rupees issued out of the holding, whereas the defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Subordinate Judge and High Court, and to prefer the present appeal to this Board on two points, one of which, the proper service of the notice, is technical and unmeritorious. It is not pretended that the plaintiffs are estopped by these proceedings and documents. But the strangest argument that could well be addressed to any legal tribunal has been founded upon by them and pressed on behalf of the principal defendants. It is this that the plaintiff's deliberately and for some indirect object narrowed their notice to quit to what they know was a small portion of the holding for which their tenants paid them rent, in order that having got possession of this portion, they might treat the companies occupying the remainder of the holding as trespassers. If they knew the law, as they must be assumed to do, they must have been well aware that a notice to quit calling upon the tenants of a holding to quit a portion of it is absolutely bad, and they must have known also that this design could not be accomplished unless the ejectment founded on the notice was so framed as to obtain secure possession of the portion mentioned in the notice and no more, and that the action could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, the lands comprised in the jumma in the immediately preceding paragraph mentioned as monthly tenants under the principal defendants. This paragraph refutes absolutely the suggestion that all the plaintiffs seek to recover is the 6 cottahs of the jumma in the occupation of Amrita Ghose and Sons. What is sought to be recovered is all the lands occupied by all the pro formd defendants, and not merely the portion occupied by any one of them. The contents of the succeeding paragraph lead to the same conclusion. It appears to their Lordships that in the face of this pleading it is perfectly plain that what the plaintiffs in this suit seek to recover is possession not of a jumma 6 cottahs in extent, nor yet a portion, 6 cottaha in extent, of a larger jumma, but the whole jumma described as formerly held by Ramnidhi Manjhi, for which he and the principal defendants after him paid an annual rent of 25 rupees, and which is in actual occupation of the formal defendants. 15. The written statements filed by the principal and pro formd defendants suggest the same conclusion. From paragraph 12 of the latter it appears that in the month of May 1900 the principal defendants entered into an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the lands in suit are not confined to a jumma of 6 cottahs bearing an annual rent of 25 rupees; that they never had possession of a jote of 6 cottahs, nor ever paid rent in respect of such a jote; that the lands in suit are not confined in a jote jumma of 6 cottahs at an annual rent of 25 rupees, alleged by the plaintiffs in their plaint to be recorded in the name of Ramnidhi Manjhi; and further that if there be any such jote of 6 cottahs recorded in the plaintiffs' serishta, the principal defendants never had any connection with it or interest in it. 19. In paragraph 12 of the written statement they repeated the assertion already mentioned that the 2 bighas 2 1/2 cottahs for which they pay 25 rupees is ancestral property acquired in the way already described, but not a particle of evidence was given by the defendants at the hearing to sustain any . one of the averments contained in this paragraph. Nor was any evidence whatever then given to sustain the accusation that the plaintiff's harboured the stupid and fraudulent design attributed to them in framing their notice to quit in its actual form. The form of their pleading repels the idea. This is a vital matter, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff. On the 28th September, 1822, the plaintiff served upon the defendant a notice, dated the 27th September, 1822, to quit this house and this land at Lady Day next or at the end of your current year. Lady Day next would be the 25th March, 1823, and the current year of the tenancy would be the 4th August, 1823, but acting on the above-mentioned principles it was held to be a good notice to quit on Lady Day, 1823, i. e., the 25th March, 1823. Abbott C. J. in delivering judgment said: There is one rule of construction in cases of this nature, which in no less sound than ancient, namely, to give such a sense to ambiguous words, us will effectuate the intention of the parties. Applying that rule to this ease, it appears to me that the words 'at the end of your current' year' may he understood to mean the end of the current, year ending at the ensuing Lady-Hay. The words, I think, are plainly applicable lo the current year Lady-Day, 1823 23. Bayley J. said:- We are to look at the intention of the landlord. When general language is used which is open to donht, the rule is to make it sensible, not insensible. The state of the defendant's holding shows it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cels described by name at 861., reserving to either party power to determine the lease at the end of fourteen years on giving two years' previous notice. It was held that a notice by the landlord to the tenant to quit Town Barton, c, agreeably to terms of the covenant between us on the expiration of the fourteen years of your term was sufficient. 29. Lord Glenborough in delivering judgment said : The landlord must have intended to give such a notice to quit as the lease reserved to him the liberty of giving, and not a void notice to quit a part only, and so the notice is question must have been understood by the tenant. The notice to quit the Town Barton, where the mansion was, meant the Town Barton cum sociis, especially with reference to the lease, which only gave him power to determine the tenancy as to the whole of what was let together. 30. Le Blanc J. said : There being no power under the lease to determine the tenancy as to part only the notice to quit could have no operation at all unless taken, as it must have been intended, to apply to the whole. 31. Bayley J. said : We are to construe the notice to quit in such a way ut res magis valeat quam per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said, was 30 cottahs, the total quantity 2 bighas; that before 1900 the lands were khal (a closed channel) and patit: that to the east of the 2 bighas add there is no public pathway, but a private pathway, 6 to 10 feet wide, used by Andrew Yule and Co. solely : that to the east of that pathway lie the lands of the Port Commissioners; that these latter lands formerly belonged to his, witness's, predecessors, and were acquired by the Commissioners; that he did not include in the plaint this eastern pathway with the disputed land. 33. The witness Hira Lal Kar stated that he was gomashta for all the plaintiffs. He proved that ho received rent from the Banerjis for the plaintiffs and gave receipt for it, eight of which were apparently produced, proved, and marked Ex. A and Exs. B (1) to B (7). They have not been printed in the Appendix, as they ought to have been since they may describe the holding in respect of which the rent was paid and throw light upon the point in controversy. 34. Well, in the face of this evidence, it is not surprising that when the case came before the Subordinate Judge it is stated in his judgment that it was admitted on both sides that the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Boundaries. North : Ramkriahtopur Ghat Road. West: Jamai land of the late Thakurdas Banerji. South : Jamai land of the late Bhuban Mohan Banerji. East : Land included in the said towzi. 36. The question is what must that notice have conveyed to an ordinary reader, much less to tenants who were aware, an the principal defendants have admitted, that they held Ramnidhi Manjhi's holding. 37. The notice begins by stating that the bastu lands, bounded as below within the char of Ramkrishtopur, are lands bearing yearly jumma of 25 rupees standing in the name of Nidhi Ram, alias Ram Nidhi Manjhi. It is then averred that the principal defendants have been in possession of these lands on payment of rent at the aforesaid rate, taking dakhilas in the name of the said Nidhi Ram Manjhi, as thika tenants at will, of the said one jumma only under the plaintiffs. It is then averred that it is necessary for the plaintiffs to take khas posyesion of all the lands comprised in the jumma already mentioned. The principal defendants are then required to vacate that land, that is, all the land comprised in the aforesaid jumma, before a day named, and they are informed that on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 6 cottahs. 39. In their Lordships' view the erroneous statement of the contents of the jumma does not predominate over the description given of it in the earlier portion of the notice to quit. They have not the slightest doubt that the principal defendants wore perfectly well aware that the notice required the defendants, as the plaintiffs desired and intended that it should, to quit and deliver up possession of the entire jumma for which they for years paid the rent of 25 rupees. If anything additional were needed to convince one that this was so it would be the evidence of the only witness examined for the defendants. He says not a word about the principal defendants and their predecessor having from time immemorial had ancestral mokurari rights in the property containing 2 bighas and 2 cottahs bearing an annual rental of 25 rupees, not a word to the effect that although he got, as he admits, the notice to quit he did not understand that it referred to the whole jumma for which Nidhiram formerly and the principal defendants in succession to him paid this rent of 25 rupees per annum. Their Lordships are, therefore, clearly of opinion that the notice was a good notice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, signed by the addressee; a sixth addressed to Babu Jyotish Chandra Banerji, defendant No. 4, examined as a witness on behalf of his co-defendants, signed by himself; a seventh addressed to Babu Narayan Chandra Banerji, defendant No. 2, purporting to be signed on his behalf by Jogendra Nath Dey; and an eighth addressed to Babu Paran Chandra Banerji, defendant No. 3, purporting to be signed on the addressee's behalf by the same person, Jogendra Nath Dey. The defendant No. 4 in his cross-examination stated he did not know a person named Jogendra Nath Dey, but, strange to say, after the signatures of five of the principal defendants, including Narayan Chandra Banerji, Paran Chandra Banerji, and Jyotish Chandra Banerji to their written statement filed in the suit of the plaintiff's to recover rent instituted in July 1906, already referred to, appears the statement Satisfied from the statement of Jogendra Nath Dey. That was followed by something which is now illegible. It probably was the signature of some official before whom the defendants or their signatures to the written statement were identified or verified. 42. Hira Lal Kar stated that he left all the notices with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed to the plaintiffs, and which, if delivered in due course, would have been received in time to determine the tenancy. The plaintiffs called evidence to show the letter had never been received. The learned Judge presiding at the trial directed the jury that a notice to quit enclosed in a latter sent through the post was prima facie evidence that it had been received, and left to the jurjy the question whether it had, in fact, been received or not. The-jury found it had been received. On a motion fora new trial on the ground of misdirection, the Court, consisting of Cockburn G. J., Blackburn, Mellor and Hannen JJ., held that if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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