JUDOONATH GHOSE Vs. SCHOENE KILBURN AND CO
HIGH COURT OF CALCUTTA
SCHOENE KILBURN AND CO
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(1.)I think that both the lower Courts have taken an erroneous view of the law in this case. In the Munsif's Court two issues were raised: first, whether the defendants did relinquish the land; and, secondly, whether the relinquishment was good in law. With regard to the first point, which was a question of fact, the Munsif found that the defendants had relinquished the land, and that they had given the notice to quit, upon which they relied. And upon the second point, namely, whether the notice was good in law, the Munsif found that it was, holding, apparently, that a lessee, under a lease of this kind, was at liberty, after due notice to his landlord, to relinquish his lease, and that upon relinquishing it, and holding no further possession of it, his obligation was at an end.
(2.)The Subordinate Judge appears to me to be rather doubtful about confirming the view of the law which the Munsif had laid down. He says: "That the defendants gave three months' previous notice of their intention of relinquishing the holding, and afterwards actually relinquished, the same, has been satisfactorily proved. Plaintiff could not prove that the defendants occupied the land after relinquishment." Then he goes on to say (by way, as it seems to me, of making himself secure whether his view of the law was right or no): "It appears that the plaintiff brought this suit after more than a year; his long silence to make any objection may be considered as his accepting the relinquishment, for if he did not do so, he could have given defendants a notice that he would not accept. I, therefore, think that he must have consented to the relinquishment."
(3.)It has been boldly argued before us, on behalf of the respondent, that the Munsif was right, and, indeed, that both Courts were right, (if the Subordinate Judge intended to agree with the Munsif), in saying that the tenant, under a lease of this character, had a right to relinquish the land at his option, whenever he pleased, upon giving due notice to his landlord; and it was also contended, that, whether that was so or not, the notice of relinquishment being proved to have been given, the facts of the case justified the Subordinate Judge in finding that the landlord, the plaintiff, had consented to the relinquishment.
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