S.R.M.A.R. Ramasami Chettiar v. Kathan Ambalagaran

1. The District Judge has disposed of these suits simply on issue 6 which runs thus:

“Are the defendants entitled to notice to qnit? If so, have defendants had proper notice?”

2. He has found both points in defendants' favour.

3. This finding would not be; conclusive of the plaintiff's right to the first relief sued for (viz., a declaration that the defendants have no occupancy right), a point which appears to have escaped the notice of the learned District Judge.

4. Apart from this it seems to us that his finding cannot be accented. The first point for consideration is, whether the defendants were entitled to notice before eviction; and in this connexion our attention is drawn to paras. 10 and 11 of the plaints, in which it is stated that the plaint lands are held subject to the performance of purakudi service and that by reason of the defendants' neglect or refusal to perform such service, their rights in the lands have been determined; i.e, they have rendered themselves liable to eviction without notice. This plea appears to have been, if not altogether lost sight of, at least observed in the lower Courts; and has certainly not been considered by the learned District Judge. He has simply dealt with the argument pressed on him by the plaintiff's vakil in his Court, which was based on Section III of the Transfer of Property Act, and has disposed of it with reference to the strict wording of that section which, we may remark, is inapplicable to the present case.

5. Again, in disposing of the second question of the sufficiency of the notices given (supposing notices to be necessary) the learned District Judge appears to us to have applied the rulings quoted without regard to the distinctive facts of the present case. In the most important case referred to, Kalianasundaram v. Egnavedeswara(1), it was held that fifteen days' notice in the middle of the cultivating season was insufficient, but if, as is contended by the respondents, the notices in the present cases were given after the harvest, for the year had been completed, that fact would make a best difference and deprive the ruling last mentioned of most of its value. This distinction appears to have been overlooked by the District Judge.

6. We must therefore set aside the decree of the District Judge and his finding on issue 6 and remand the appeal for disposal according to law. In coming to a fresh decision on the first part of issue 6 he should have regard to the following points:

(1) Whether the defendants' tenancy was of the kind referred to in paras. 10 and 11 of the plaint.

(2) Whether they neglected or refused to perform such service as they were bound to render.

(3) Whether by such neglect or refusal they rendered themselves liable to eviction without notice.

7. Costs will be provided for in the District Judge's decree.

S.N/R.K

8. Appeal allowed.