1. This is a second appeal in a suit brought by the plaintiffs, Deo Nandan Pershad and others, to eject the defendant Meghu from some land. The plaintiffs are auction-purchasers at a sale for arrears of revenue. They allege that the defendant Meghu is a trespasser, having been inducted into the land by the former proprietor, Fudri Babu, at a time when his interest in it had passed away from him.
2. The learned District Judge has held that the defendant is a yearly tenant and as such entitled to a notice to quit, and as no such notice was given him he has dismissed the plaintiffs' suit.
3. The plaintiffs appeal and contend that the finding of fact has been arrived at in a wrong way, inasmuch as the Judge has not given due weight to the fact which he himself has found, viz., that the defendant was inducted into the land in 1307, when Fudri Babu, the defendant's lessor, had ceased to be the owner of the land, and further that the defendant being a mere tenant-at-will is entitled to no notice.
4. The first contention must prevail. The Judge has himself found that the plaintiffs purchased the land on the 26th June 1899, corresponding with the 13th Ashar 1306. Then the Judge has also found that the defendants' "occupation began in and with effect from 1307," that is, the following year. Hence the Judge should have held that the entry in the record-of-rights, which he relies on, was rebutted by these two facts, and the defendant cannot as against the plaintiff be regarded as a tenant of the land. It has further been pointed out that the District Judge is in error in saying that "from paragraph 8 of the plaint, it appears that the plaintiff-respondent made repeated demands on the appellant for the price as value of the half produce, i. e., for rent. He has thus been recognised as their tenant." The learned Judge has apparently misconstrued paragraph 8 of the plaint. In this paragraph, it is said "although the second party defendants were repeatedly requested to give up possession and to pay the produce of the disputed land or the price thereof, but they did not pay any heed to it, and hence necessity arose to the plaintiffs for this suit." There is here no admission of any demand having been made on the defendant for rent. The demand to give up possession is inconsistent with the intention imputed to the plaintiff by the Judge of recognising the defendant as their tenant. The demand to pay the produce of the disputed land or the price thereof, would seem, when coupled with the demand for possession to have been a demand for mesne profits or damages for use and occupation, but clearly not a demand for rent. The case must therefore be remanded to the Judge for a fresh finding in the face of "these facts as to the position of these defendants.
5. If he be found as regards the plaintiff to be a trespasser, then the question of the necessity of giving him a notice to quit does not arise. If, however, he be found to be a tenant, then it will have to be determined whether he is a yearly tenant or a tenant merely holding the land at the pleasure of the landlord. If the defendant is a yearly tenant, no doubt the ruling relied on by the Judge, viz., Sulatu Dass v. Jadu Nath Dass (1904) 8 C.W.N. 774, will apply. If, however, he is a tenant of inferior status, it will have to be considered, whether he is entitled to a written notice at all. The appellant's pleader relies on the case of Ram Narain Sahu v. Maangru Urao (1900) 4 C.W.N. 792. But this was a case the cause of action in which arose in a district where Act I of 1879 (B.C.) is in force; and it may be said that that judgment was never intended to, and does not lay down that, where the defendant is a tenant, the tenancy has not to be determined before the institution of the suit for ejectment. In that case, the tenancy of the defendant had been determined by a verbal notice to quit given him by the manager of the Maharajah of Chota Nagpur, and the defendants disregarded that notice and held on to the land, knowing well of the settlement of the land with the plaintiff.
6. The case is remanded to the lower Appellate Court for a fresh decision, having regard to these observations. Costs will abide the result.
Mookerjee, J.
7. This is an appeal on behalf of the plaintiffs in an action for ejectment of the defendants. The plaintiffs alleged that on the 26th June 1899, they had purchased at a sale for arrears of revenue, an estate named Rampur Bhimal and they were entitled to obtain possession of the lands in dispute from the defendants, who were placed in occupation by the defaulting proprietors shortly after the sale. They further, alleged that they had demanded possession from the defendants, but to no purpose. On the other hand, the defendants succeeded in obtaining a decision from the Settlement Officer on the 10th June 1902, that they were tenants from year to year of these lands, which had been recorded as the private lands of the proprietors. I he defendants resisted the claim on various grounds, amongst which it is sufficient to mention three, namely, that the lands in question formed their ancestral ryoti holdings, that they had been recognised as tenants by the plaintiffs after their purchase at the revenue sale, and that whatever their status might be, they could not be ejected without a notice to quit. The Subordinate Judge found upon the evidence that the defendants were trespassers as they had been set up as tenants by the defaulting proprietors after the revenue sale, and in this view of the matter, he gave the plaintiffs a decree for ejectment. Upon appeal, the District Judge held that the defendants were tenants from year to year without a right of occupancy, and that as no notice had been given, the suit must fail. The plaintiffs have appealed to this Court, and on their behalf the decision of the District Judge has been challenged substantially on three grounds, namely, first, that the defendants are not tenants and are not entitled to any notice to quit, secondly, that if the defendants came in originally as trespassers they have not been subsequently recognised as tenants by the plaintiffs, and, thirdly, that as the lands in dispute are the proprietors' private lands, the defendants, even if tenants, are mere tenants at will, and are not entitled to any notice to quit.
8. In support of the first point taken on behalf of the appellants, it is pointed out that, although under section 103b. of the bengal tenancy act, every entry in a record-of-rights, duly published is to be presumed to be correct, the presumption is a rebuttable one, and that in the present case, the presumption has been amply rebutted by the facts found by the District Judge himself. The facts found are these: the plaintiff purchased the estate, within which the lands in dispute are situated, on the 26th June 1899, and consequently their purchase took effect from the previous last day fixed for payment of revenue (see act xi of 1859, sch. a). The defendants were inducted into the lands by the defaulting proprietors after the sale, and the occupation of the defendants began in, and with effect from the Fasli year 1307, i.e., with effect from the 20th September 1899. It follows consequently that the occupation of the defendants in its inception was that of trespassers, and the District Judge ought to have held that the presumption of correctness, which attaches to an entry in a finally published record-of-rights, had been fully rebutted by the facts established by the evidence.
9. In support of the second contention urged on behalf of the appellants, it is argued that there has been no recognition of the defendants as tenants by the plaintiffs. As pointed out by my learned brother, the District Judge has clearly misunderstood the scope and the effect of the eighth paragrahh of the plaint. The plaintiffs merely allege that they repeatedly requested the defendants to give up possession, and to pay the produce of the disputed land or the price thereof during the period of their occupation. This can hardly be regarded as a demand for payment of rent; but even if it be treated as a demand for rent, it is of no assistance to the defendants. A mere demand for rent is not sufficient to create the relationship of landlord and tenant, which is a matter of contract assented to by both parties. If A finds B in occupation of his land, and, being quite willing to treat him as tenant, makes a demand for rent, the demand for rent is at most an offer of a tenancy, and a tenancy is not necessarily constituted, unless B accepts the offer and attorns to A. This is amply supported by the cases of Evans v. Elliot (1838) 9 A. & E. 342; 48. R.R. 520, and Towerson v. Jackson (1891) 2 Q.B. 484, which show that the offer is not binding, unless it is accepted, and the mere fact that such an offer has been made, and the person to whom the offer has been made has continued in possession, cannot be evidence of assent. It is clear, therefore, that the facts found by the District Judge are not sufficient to support his conclusion that the defendants had been recognised as tenants by the plaintiffs.
10. The third ground taken on behalf of the appellants is that, assuming that the defendants have been recognised as tenants by the plaintiffs, inasmuch as the lands in suit are the private lands of the proprietors, they are not entitled to any notice to quit. In support of this proposition, reliance is placed upon the decision of this Court in Ram Narain Sahu v. Maangru Urao (1900) 4 C.W.N.792. In my opinion, the case to which reference is made does not support the broad contention advanced on behalf of the appellants. In the first place, it must be observed that the provisions of Chapters V and VI of the Bengal Tenancy Act are not inapplicable to all teoancies in proprietor's private lands; they do not apply, only when it is proved that the land is held under a lease for a term of years, or under a lease from year to year; this is clear from Section 116 of the Act, as explained in Sheo Nandan Roy v. Ajodh Roy (1899) I.L.R. 26 Calc. 546 and Masudan Singh v. Goodar Nath (1905) 1 C.L.J. 456. In the second place, upon general principles, a suit for ejectment of a tenant cannot be maintained, unless the tenancy has been determined, that is, unless there has been a previous notice to quit or a demand for possession. When a person has acquired possession of the lands of another, which he continues to retain and when the holding is not for a fixed or determinate time, a manifestation of intention is required before the tenant can be called upon to surrender possession to the owner. This appears to be based upon the principle, that ejectment can be brought only for unlawful or tortious detention; when possession of land has been acquired by the consent of the owner, such possession cannot ordinarily be deemed wrongful until, at least, after a demand for possession has been made. A refusal to surrender, or a non-compliance with the demand, furnishes the gist of an action for the recovery of the land, and the occupant may then be regarded as a wrong-doer. If, therefore, the entry was not wrongful in its inception, or has not become so subsequently, if there is privity between the parties with respect to the premises sought to be recovered, the right of the owner to institute proceedings to dispossess the occupant, arises only after a notice to quit has been given or a demand for possession has been made. This view is perfectly consistent with the case of Ram Narain Sahu v. Maangru Urao (1900) 4 C.W.N. 792, in which, as my learned brother has just explained, it was never intended to rule that a tenant could be ejected without a previous demand for possession. That case only lays down that, where there is no statutory provision for the determination of the tenancy by a written notice to quit, a verbal notice to quit or demand for possession is sufficient. This appears to be reasonable and accords with the rule of the Common Law of England, that the notice to quit, whether given by tenant or the landlord, need not be in writing; a verbal notice is considered sufficient, especially where the lease is verbal I see Doe v. Crick (1805) 5 Esp. 196; 8 R. R. 848, Roe v. Pierce (1809) 2 Camp. 96; 11 R.R. 673, Smith v. Birmingham Gas Company (1834) 1 A. & E. 526 ; 40 R.R. 358, and Bird v. Defonvielle (1846) 2 Car. & Kir. 415. Of course, it would be otherwise if there is statutory provision for a written notice to quit, or the contract between the parties provides for such written notice. It was contended by the learned vakil for the appellants, that the plaint in this case contained an allegation of a demand for possession previous to suit, and as this was not denied in the written statement, the allegation ought to be held quite sufficient. As pointed out, however, by their Lordships of the Judicial Committee in Anundmoyee Chowdhoorayan v. Sheeb Chunder Roy (1862) 9 Moo. I.A. 287, the strict rule that averments not traversed must be taken to be admitted, is not applicable to pleadings in Indian Courts; consequently, the plaintiffs are not relieved from the necessity of establishing the truth of their averment. It has further to be observed that, whether a mere demand for possession is enough in this case, or whether the defendants are entitled to a notice to quit, verbal or written, must depend upon their status. If they are tenants from year to year, the rule laid down in Sulatu Dass v. Jadu Nath Dass (1904) 8 C.W.N. 774 would apply. If, on the other hand, the status of the defendants is that of a mere tenantat-will, a demand for possession would be sufficient. Whether the defendants are tenants-at-will or not, would depend upon the terms of the agreement between the parties; if the parties intended that the tenancy should be terminable at the will of either party, the position of the defendants would be that of tenants-at-will. Upon this question, however, there is no finding, by the District Judge, and it is not possible to deal with the matter finally in second appeal.
11. On these grounds, I agree with my learned brother that this, appeal must be allowed, the decree of the District Judge reversed, and the case remitted to him for further consideration.