Piggott, J.:— In this suit the plaintiff sought the ejectment of the defendant from a certain house, on the ground that the defendant was a tenant of the same and that his tenancy had been terminated, by a lawful notice duly served. The suit was resisted on various grounds, but in the date of service, I must take the Court para. 5 of his written statement the defendant pleaded that he had received no notice from the plaintiff, “and according to law she is not entitled to have the house vacated.” The first Court framed four issues, the second of which raised the question whether the notice alleged by the plaintiff to have been issued “was legal.” The learned Munsif came to a finding against the plaintiff on another point and did not determine this issue. There was an appeal to the Court of the District Judge, and as that Court upheld the order of the Court of first instance, the question of the notice alleged by the plaintiff to have been issued was not decided. The case having come before this Court in second appeal, the defendant contended that, even though this Court should decide against him on any of the points determined in his favour by the two Courts below, the question whether the tenancy found to have existed between the parties had or had not been terminated by the service of a valid notice would still have to be decided before the appeal could be finally disposed of. This contention appeared to me obviously correct and I accordingly remitted an issue in the following terms:
“Prior to the institution of this suit had the plaintiff, Mt. Seoti Bibi, duly given to the defendant, Doctor Jagannath Prasad, a notice, in respect of the tenancy alleged by her to exist, sufficient to determine the same?”
2. The lower appellate Court has now returned a finding to the effect that there had been a service of a notice on the defendant, but that this notice was not sufficient in law to determine the tenancy. Objection has been taken to this finding under O. 41, R. 26 of the CPC, and I have to see whether this objection is maintainable. I must take the facts as found by the lower appellate Court.
3. The notice in question was issued on 28th December 1915. It has not been expressly found on what date the notice was tendered to the defendant, which tender has been held to amount to legal service of the notice. The said notice was written upon a post card, which it has been found was offered to the defendant and refused by him. I think the Court below was right in holding that the presentation of the post card to the defendant was sufficient under these circumstances to give him notice of its contents. As regards below to have, found that it took place-within a day or two of the 28th December 1915. It will be sufficient for the purpose of determining the question of law raised, if I understand the Court below to have found that service must have taken place at least on 31st December 1915. The notice directed the defendant to vacate the house on or before 31st January 1916, so as to allow the plaintiff to enter into possession of the same by the 1st February 1916. The Court below has found that the defendant was holding on a monthly tenancy, terminating on the 26th day of each successive month according to the Hindi calendar. This is a finding of fact binding upon me in second appeal. The 26th day of the Hindi month Pous was 15th January 1916, and the 26th day of ensuing month of Magh was 14th February 1916. On these facts the Court below has held that the notice was not valid in law, as it did not expire with the end of a month of the tenancy. The contention on behalf of the appellant now is that the notice was served at least 15 days before 15th January 1916 and that, inasmuch as it called upon the defendant to vacate the house on or before 31st January 1916, it did by implication also call upon him to do so on or before 15th January 1916, and should therefore be held to have complied with the requirements of the law. There is a clear authority for the proposition that, if a lessor gives to a lessee holding on a monthly tenancy a notice expiring with the end of a month of the said tenancy, it does not matter if more than 15 days notice is given, but this is not the question now before me for determination. The notice in this case required the tenant to vacate the house on or before 31st January 1916 and by implication permitted him to remain in the house until that date. I am unable under these circumstances to regard the notice as fixing a period which expired on 15th January 1916. None of the authorities to which I have been referred in argument on behalf of the appellant has in my opinion any clear bearing upon this point. I must hold therefore that the finding of the lower appellate Court on the issue remitted by me is correct. I dismiss this appeal with costs.
JUDGMENT
4. In our opinion the decision of the learned Judge of this Court is quite correct and we therefore dismiss this appeal with costs.
V.B/R.K
5. Appeal dismissed.