- (1.) THIS is a Civil Second Appeal in a suit for ejectment and arrears of rent. In the trial court the plaintiffs were Chhitarlal and his two sons, Roshanlal and Lakshmi Narain, but after the filing of the appeal Chhitarlal died, and his legal representatives have been brought on record. The suit relates to a shop and a room over it, situated at Surajpole in the city of Udaipur which, according to the plaintiffs, was given on lease at Rs. 22/- per mensem to the defendants, and the defendants had executed the rent note (Ex. 3) on 25th September, 1951. The plaintiffs claimed ejectment of the defendants on several grounds which need not be mentioned as the lower appellate court has dismissed the suit of the plaintiffs solely on the ground that notice for determination of tenancy was not in accordance with law. On 21. 5. 1960, the plaintiffs served a notice on the defendants terminating their tenancy on and from 30. 6. 1960. The lower appellate court has taken the view that the tenancy commenced on 25. 9. 1951, and as it was a tenancy from month to month, it could be properly terminated by 15 days' notice expiring with the end of the month of the tenancy i. e. by 15 days' notice expiring on the 25th day of any month and not on 30. 6. 60. Before the lower appellate court, the plaintiffs had raised the contention that the date of commencement of tenancy had been altered by agreement on 4. 6. 58. On that day the old account of rent due till 31. 5. 58 was squared up and Rs. 145. 12. 9 were debited to the account of the defendants in the account books of the plaintiffs, and according to the plaintiffs, the tenancy from that date commenced on 1. 6. 58. An entry to that effect was made in the khata (Ex. 1) which was in the handwriting of Mohanlal himself. It is necessary to refer to the relevant part of the entry (Ex. 1) that has been the subject matter of interpretation by the lower appellate court: [kkrk 1 lk- fd'kuykyth firk tks/kjktth vxzoky dk leor~ 2015 dkrkjh[k 4-6-58 165aaa½aaa miyk [kkrk jk ckdh ys. kk fdjk;k jk v[khj ebz lu~ 58 rda vc fdjk;k 1-6-58 ls pkyw jgsxka There is no controversy on the point that Rs. 145. 12. 9 on the debit side in Ex. 1 represented the rent due up to 31. 5. 58. In Ex. 1 it is further mentioned that henceforward the rent shall continue from 1. 6. 58,
(2.) VC fdjk;k 1-6-58 ls pkyw jgsxk-----** According to the plaintiffs, these words meant that henceforward the tenancy was to remain current from 1. 6. 58, while according to the defendants, the date of commencement of the tenancy was not changed, but the rent was to be paid from the 1st of June, 1958. The use of the word Vc** (now) also corroborates the statement of Chhitarlal plaintiff on this point. In the context it has been used, it signifies that there was some change, and that change according to the plaintiffs, was that the date of commencement of tenancy was altered to 1st June 1958. No doubt that in Ex. 1 the word 'rent' has been used and not tenancy. Nonetheless, the context in which this word is used coupled with the word Pkyw** signifies that there was not only change in the date of payment of rent, but also in the date of tenancy. It has now to be examined as to what is the effect of such change. The nearest case on the point is Doe Dem Savage vs. Stapleton (1 ). In that case a party took possession of premises on the 1st of August, and at the Michaelmas following paid the half quarter's rent, and continued afterwards to pay quarterly, on the usual feast days. In that case, Park, J. approved the following observations of Lord Ellen borough in the case of Doe as. Johnson 6 Esp. 10, and applied them to the case before him: "if the tenant comes in the middle of a quarter, and he afterwards pays his rent for that half-quarter, and continues then to pay from the commencement of a succeeding quarter, he is not a tenant from the time of his coming in, but from the succeeding quarter day. " The learned Judge of the lower appellate court has relied on Carrara Marble and Terrazo Co. Ltd. vs. Charu Chandra Guha (2) for the proposition that in the case of a monthly tenancy, the date of the tenancy may very well be different from the date according to which rent is realized. The Madras High Court in the case of Arunachella Chettiar vs. Ramish Naidu (3) has observed that: "it is also a widespread practice to make the monthly letting to coincide with the calendar month. " Similar observations are contained in Lala Ramjilal vs. Secretary of State (4 ). The cases of the Madras High Court and the Oudh Chief Commissioner's Court may be distinguishable on the ground that they gave judicial recognition to a practice. This distinction was drawn by the Calcutta High Court in Carrara Marble and Terrazo Co. Ltd. vs. Charu Chandra Guha (2), referred to by the learned Judge of these two appellate courts. But their Lordships of the Calcutta High Court have further proceeded to observe that: "alteration of the month of a tenancy may be proved either by direct evidence by proving a new agreement by which the month of the original tenancy was expressly altered or by circumstantial evidence showing that whereas formerly rent used to be realised from the middle of one month to the middle of another, subsequently the rent for broken period of this calendar month was either paid or adjusted and rent was paid from month to month according to English calendar. " These observations apply in the instant case inasmuch as there is a circumstantial evidence to show that on 4th June, 1958 rent for earlier period up to the end of the month of May was debited and rent was made payable from 1st June, 1958. In this view of the matter, the finding of the lower appellate court that the notice served by the plaintiffs on the defendants was not valid is not correct. Other matters which arose in the appeal before the lower appellate court were not decided by the court and the case is to be remanded to that court for decision of this matter. As a result of the aforesaid discussion, the judgment and decree dated 7. 7. 1961 of the Additional Civil Judge, Udaipur are set aside, The case is remanded to him for decision in accordance with law on the other points arising in the appeal. Costs of this appeal shall be borne by the parties. .;