Sheikh Nuroo v. Seth Meghraj Ramkaran Marwadi .

1. This is a defendant's appeal from a concurrent judgment of the First Additional District Judge, Nagpur. The suit was for possession of land marked as E F E L M in the map filed by the defendant and to recover Rs. 32 as rent. The defendant's plea was twofold: (1) that the portion marked in the map as A B C D E F G H I J was his ancestral property and that the lease was only in respect of the land A J K L M and (2) that the notice to quit served on him was invalid. Both those pleas were negatived in the Courts below with the result that the plaintiff's suit was decreed in full. The decision of the lower appellate Court is contested on these two heads of the judgment. As to the first point, namely whether the plaintiff granted a lease of the entire plot E P K L M or of a part of it, as contended by the defendant, the lower appellate Court has believed the evidence of P.W 1 and P.W 10. The question is one of pure fact and cannot be agitated again in second appeal. Even if I were to take a different view on the facts of the case, I would have no jurisdiction in second appeal to reverse or alter the finding of fact. This contention must therefore be ruled out.

2. As to the second contention, namely that the notice to quit was invalid, there is undoubtedly some room for addressing a plausible argument. The notice was issued on 13th June 1932. The question is whether it conforms to the terms of the notice prescribed by Section 106 of the Transfer of Property Act. It is common ground that the tenancy was one from month to month and that it commenced on the tenth of the month. My attention is invited to the terms of Section 110 of the Transfer of Property Act, and it is urged that the month of the tenancy would expire on the midnight of 10th July 1932.

3. It is true that in computing the time limited by lease of immoveable property the particular day from which the lease is to commence is to be excluded from computation. Thus computing the month to run from the 11th of that month, the tenancy would terminate on the 10th of the following month. In the notice the plaintiff called on the defendant to arrange to vacate the land by 10th July 1932. It is pointed out here on behalf of the appellant that the notice given here does not expire with the end of the tenancy but expires a day short of it, that is, on 9th July 1932. I cannot accede to this contention for the reason that in the notice was used the word “by” (10th of July) which according to the Shorter Oxford English Dictionary means “on or before” “not later than” and also “during”. That means that the word “by” does not exclude but includes 10th July. If that is the true construction, then the notice was such as provided clear 15 days' time which expired with the end of the tenancy. It was therefore quite in accordance with the requirements of Section 106 of the Transfer of Property Act. The second contention also fails. The result is that the appeal stands dismissed with costs.

V.B.B/D.S

4. Appeal dismissed.