1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Panton in a suit for ejectment.
2. The claim was decreed by the Court of first instance That decree was reversed by the Subordinate Judge and his decree for dismissal of the suit has been maintained by the Court.
3. It is perfectly plain that the Courts below have got lost in a maze of phraseology which has no application to the admitted facts of this case. The defendant is not a cultivator and the tenancy was not created for agricultural purposes. Consequently, it cannot be maintained for a moment that the defendant is an under raiyat or a raiyat, within the meaning of the Bengal Tenancy Act, and his liability to ejectment does not depend upon the provisions of that Statute. The defence that the plaintiff had no title has completely failed and it has been found that the land is held by the defendant under the plaintiff. The plaintiff served notice to quit on the defendant on the 24th March, 1321 (7th February 1915) and asked the latter to vacate the land from the first day of the following year (14th April 1915). To determine whether, on this notice, the plaintiff is entitled to a decree for ejectment, two questions have to be investigated, first, what is the nature of the tenancy held by the defendant; and, secondly, if it is a terminable tenancy has it been terminated by a legal notice to quit. As regards the nature of the tenancy, whether it is monthly or yearly, has to be considered. It is well settled that the mere fact that rent is paid annually is not conclusive proof that the tenancy is annual: Durgi v. Goberdhan Bose 24 Ind. Cas. 183 : 20 C.L.J. 448 : 19 C.W.N. 526; Gobinda Chandra Saha v. Dwarka Nath Patita 26 Ind. Cas. 962 : 20 C.L.J. 455 : 10 C.W.N. 489 and Aklu v. Emaman 33 Ind. Cas. 899 : 44 C. 403 : 20 C.W.N. 1005. The Court below will consequently investigate this matter first. If it is found that the tenancy was annual the notice was manifestly insufficient and the suit will stand dismissed. On the other hand, if it is found that the tenancy was monthly, the notice was ample and the suit will be decreed.
4. The result, is that the appeal is allowed, the decree made by Mr. Justice Panton in affirmance of that of the District Judge set aside and the case remitted to the Court of first instance to be re-tried, having regard to the above observations, on such evidence as the parties may find it necessary to adduce.
5. Costs will abide the result.