1. This second appeal comes before us from the decision of the Second Subordinate Judge of Patna, dated 13th July, 1917. The suit was instituted by the Chairman of the District Board of Patna against the defendant, who is a minor, to recover possession of three khatas two dhurs of land situated in the Mauzah Nohta, on the Futwa Road.

2. It would appear that the defendant's father obtained from the District Board two plots of land in the Mauza of Nohta for the purpose of a homestead and erecting thereon a dwelling house. The first plot containing one khata 2 dhurs was leased by the District Board to Pharangi Singh, father of defendant 1, under an indenture of lease, dated 9th November, 1896; the rent reserved was Re. 1-2-0 per annum; and the rent so reserved was to be paid annually on 31st March in each year. The second parcel of land containing 2 khatas was demised to Pharangi Singh by the District Board under an indenture of lease, dated 27th January, 1898, the rent reserved being Re. 1-8-0 per annum; the reserved rent was payable annually on 31st March in each year. The aforesaid leases contained no stipulation with regard to the time of the duration of the demise. The leases merely embodied a term providing that upon notice being given by the District Engineer on behalf of the District Board, the lessee or his representative for the time being would vacate possession of the demised premises and hand over possession of the same to the District Board; but the period of time with respect to the term of the notice required to be given for the termination of the respective leases was not specified. It is not denied that Pharangi Singh, the father of the defendant, did in fact build a pucca house upon the three khatas two dhurs of land demised by the above-mentioned leases at considerable cost, and that these premises in fact constituted his homestead. It is sought now in this suit to recover possession of the demised premises; and to compel the defendant at his own cost to remove the pacca house erected thereon. The terms of the respective leases are somewhat unusual and apparently harsh in their provisions. On 15th June, 1914 notice to quit was served by the District Engineer on behalf of the plaintiffs upon defendant 1, requiring him to vacate possession of demised premises within one month from the date of the serving of notice. It is alleged that on 14th July, 1914, the mother of the defendant applied to the District Board to allow her son and herself to remain in possession of the demised premises during the rainy season of the year 1914. This request, it is alleged, the District Board agreed and on 1st February 1915 the District Engineer on behalf of the plaintiff applied by letter to the defendant requiring him to vacate the premises forthwith; but no fresh notice to quit in accordance with the provisions of both leases was served on 1st February 1915 or at any time subsequent to 14th July, 1914, when the Board consented to allow the defendant and his mother to remain on in possession. The defendant failed to deliver possession in accordance with the terms of the request contained in the aforesaid letter of the District Engineer whereupon the plaintiffs instituted the suit on 6th April, 1916.

3. The learned Munsif dismissed the suit, holding that no notice to quit had been served upon the defendants in accordance with the requirements of the lease; and that accordingly no demand had been made to justify the plaintiffs' claim to recover possession of the demised premises in a suit framed for ejectment. On first appeal to the Second Subordinate Judge of Patna, the learned Subordinate Judge reversed the decision of the Munsif and held that the suit was maintainable; that the notice required by the leases to be served had been served; and that the plaintiffs were entitled to possession of the demised premises; and accordingly he gave a decree in accordance with the terms of the plaintiffs' claim. From the decision of the learned Subordinate Judge this second appeal has been preferred to this Court. For the purpose of resisting the plaintiffs' claim in this suit Mr. Bay on behalf of the defendant has urged four separate contentions; and they may be summarized as follows: (1) That the defendant by virtue of Section 182 of the Ben. Ten. Act, has acquired occupancy rights in the two plots of land demised by the respective leases of November 1896 and June 1898; and that consequently he is not liable under these circumstances to be ejected therefrom by virtue of the proceedings in this suit, notwithstanding the provisions expressly contained in the aforesaid leases. (2) That the notice in fact served by the District Engineer on behalf of the plaintiffs on 15th June, 1914, demanding that the defendant should vacate and surrender possession of the demised premises within a month therefrom, was a notice which was invalid in point of law; the tenancy being in the nature of a yearly tenancy; subject to the payment of the yearly rent. (3) Mr. Ray contends that upon the evidence the learned Judge was wrong in holding that there was “good and real service” of the notice to quit, and (4) it is contended there was no reply given to the notice served, nor was any request made by the mother of the defendant for permission to remain in occupation of the demised premises during the rains of 1914, as alleged by the plaintiffs, and that consequently the notice to quit, if served, was in law waived. On the four arguments addressed to us the first two involve questions of pure law; and if either of these first two arguments be well founded, then it becomes immaterial to consider the mixed questions of law and fact involved in the 3rd and 4th arguments put forward by Mr. Ray on behalf of the defendant.

4. Before dealing with the first argument presented for our consideration it is right to mention a matter that is not in dispute that the defendant (and his father before him) were settled raiyats in respect of other lands in the village of Nohta, apart and distinct from the lands in suit. This fact is not really in controversy; nor do we see how it well could be, having regard to the documents in the case which clearly show that at the time the premises in suit were demised the defendant's father was in possession of other lands in the village of Nohta as a raiyat; and that the lands which formed the subject-matter of the demise were merely acquired for the purpose of creating a homestead adjoining the raiyati lands of which the defendant's father at the time was the possessor; and which raiyati lands were held under a different landlord to the lands in suit. Therefore it is contended that, inasmuch as the plaintiff is a settled raiyat of other lands within the village of Nohta, the demised premises, being merely homestead lands, are, in the absence of local custom and usage to the contrary, controlled as to their tenure, rights and incidents by the provisions of the Bengal Tenancy Act; and that the defendant by virtue of the conjoint effect of Ss. 21 and 182 has acquired occupancy rights therein.

5. This point was taken in both the lower Courts, but it does not seem to have received the consideration which it deserved; and it is hard to follow the reasoning of; the learned Munsif and the learned Subordinate Judge in dismissing this argument as unworthy of consideration. Section 21 of the Ben. Ten. Act, provides

“that every person who is a settled raiyat of a village within the meaning of the foregoing section shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.”

and S. 182 provides that

“when a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.”

6. Beyond all controversy the defendant and his predecessor-in-title held the demised premises as raiyats and apart from the other lands in the same village in respect of which they were settled raiyats. The uniform current of authority in the High Court of Calcutta from the year 1893 down to 1915, and up to the present time, has been in favour of giving Sections 21 and 182 of the Ben. Ten. Act, a wide and very liberal construction; and from the positive judicial decisions which have been pronounced, during the period mentioned, a clear rule of law is deducible, which decides that if a settled raiyat of lands in a village acquires other land as a raiyat, apart from the lands of which he is a settled raiyat, for the purpose of creating a homestead thereon, then he acquires occupancy rights in such lands even though the lands so acquired for the purpose of a homestead be not held under the same landlord as the lands in respect of which such tenant is a settled raiyat. Indeed in two cases, viz., the cases reported as Kripa Nath Chakravarti v. Sheikh Anu(1) and Harihar Chattopadhyaya v. Dinu Bera(2), the High Court of Calcutta have gone so far as to lay down that if a raiyat is a settled raiyat of one village under one landlord, and he acquires lands for the purpose of a homestead under a different landlord in a different village, that nevertheless by the operation of Sections 21 and 182 of the Ben. Ten. Act, he has occupancy rights in the lands so acquired by him for the purposes of a homestead. This decision is very far reaching and may under suitable conditions require further judicial consideration in this province.

7. The authorities cited in support of the argument addressed to us on behalf, of the defendant are reported as Kripa Nath Chakravarti v. Seikh Anu, Golam Mowla v. Abdool Sawar Mondal(3), Harihar Chattopadyaya v. Dinu Bera, Bhikariram Bhagat v. Maharaj Bahadur Singh(4), Iswar Chandra Dey v. Murari Lal Dutt(5) and Dina Nath Nag v. Sashi Mohan Dey Tarafdar(6).

8. In the case reported as Bhikariram Bhagat v. Maharaj Bahadur Singh the current of all the prior decisions is carefully reviewed in the judgment of the learned Judges that decided that case, and there is little room for doubt that the law is now perfectly well settled and that by the oursus curiac of judicial authority, laid down by the Calcutta High Court, we in this Court feel ourselves bound in cases where the facts are in pari materia with such current of authority, and more especially so in interpreting and construing an Act such as the Bengal Tenancy Act which applies to Bengal as well as to the Province of Behar, and formerly within the jurisdiction of the Calcutta High Court. Therefore in our opinion on the undisputed facts of this case notwithstanding the express terms and provisions of the respective leases of 9th November, 1896 and 27th June, 1898, the defendant has acquired in law, under the joint operations of Sections 21 and 182 of the Ben. Ten. Act, occupancy rights in the 3 kattas 2 dhurs of land demised and which were acquired for the purposes of a homestead in the village of Nohta on the Futwa road, and that consequently he cannot be ejected therefrom under the provisions contained in either of the leases aforesaid. In so far as the learned Munsif and the Subordinate Judge may have thought that the express provisions of the leases overrode the respective sections of the Ben. Ten. Act referred to, they were in error; because in our opinion the provisions of the leases were and are rendered nugatory and void by virtue of S. 178, sub-S. 3, Cl. A, of that Act, and no other conclusion is possible, founded on the ratio decidendi of the cases already cited, and in which this principle is clearly recognized. With regard to the argument as to the validity in point of law of the notice to quit, speaking for myself, I am of opinion that the argument addressed to us on behalf of the defendant is well founded. The tenancy or interest created by the leases, whatever it may have been, was in a sense at least a yearly one, to enure year by year until notice to quit was served determining the tenancy the rent that was payable, was payable yearly; and the contract made between the parties clearly contemplated a yearly liability for the discharge of the rent payable and to become due under the leases respectively.

9. In such cases the High Courts of India have held that the principles of English law apply where no specified term is fixed for the service of a notice to quit: and that inasmuch as the English law, founded upon the good sense of the Common law, requires that where no time is specified within which a notice to quit must be served, the law implies that at least a six months' notice must be given to determine a tenancy where the contract between the parties is a contract based upon a yearly tenure at a yearly rent. In the present case there, fore the notice to be a valid notice should have been served upon the defendant requiring him to deliver up possession of the demised premises within six months from the date of service of such notice. A month's notice was in fact admittedly only given; and in our opinion this notice was in sufficient in law to operate as a due and proper demand of possession to determine the interest of the lessees' in the demised premises under the terms of the above mentioned respective leases. The authorities in support of this contention are numerous and the law is well settled; and we apply the principles of English law to the facts of the present case. The cases cited will be found reported as Kishori Mohun Roy Chowdhry v. Nandkumar Ghosal(7), Ismail Khan Mahomed v. Jaigun Bibi(8), and Hemangini Chowdhrani v. Srigobinda Chowdhury(9).

10. Having decided these two points in favour of the defendant, it becomes unnecessary to consider the other two arguments presented to us on his behalf. We consequently are of opinion that the decision of the lower appellate Court was wrong in law and that the decree of the learned Subordinate Judge must be set aside and the decree of the Munsif dismissing the suit be restored for different reasons. The plaintiff will pay to the defendants their costs in all Courts.

V.S/R.K

11. Appeal allowed.