- (1.) THIS is a second appeal by the plaintiff in a suit for ejectment and arises in the following circumstances :
(2.) THE appellant Sheobuxsingh instituted the present suit on 7th of May, 1957 in the court of the Munsif, Sikar on the allegations that the defendant Paras Ram took a shop of the plaintiff on rent on 19th October, 1955 on a rent of Rs. 7/- per month for a period of six months. It was alleged that the rent fell in arrears and by Asad Sudi 5, Svt. 2013, Rs. 39/- remained due for which he executed a document. Of this amount, the defendant was alleged to have paid Rs. 26/- and Rs. 13/- were still due. It was then alleged that the rent from Asad Sudi 5th, Svt. 2013 to Baisakh Sudi 5, Svt. 2014 for a period of 7 months had also become due. It was alleged that a notice was given to the defendant on 28th March, 1956 to vacate the premises within one month and to pay the amount, but this was not complied with. THE plaintiff claimed Rs. 62/- as arrears of rent up to Baisakh Sudi 5, Svt. 2014 (corresponding to 4th May, 1957) and prayed for ejectment. THE suit was contested on various grounds. THE trial court gave a decree for the arrears of rent, but declined to grant the relief of ejectment on the ground that the notice was not valid according to law. THE plaintiff filed an appeal, but the same judgment was upheld. THE plaintiff has come in second appeal. It was argued by learned counsel for the appellant that no notice was necessary in the present case as the period of tenancy agreed upon by the rent note was only for six months. This argument has no force. In the first place, the ejectment was not claimed on the ground that the period of tenancy had ended. In the second place, the plaintiff not only did not treat the defendant as trespasser after the expiry of six months, but had claimed rent right up to 4th May, 1957, i. e. a few days before the suit. Although the tenancy which started on 19th October, 1955 came to an end after six months, a new tenancy came into existence by conduct of the parties, viz. the defendant continued to occupy the shop and went on paying rent thereof and the plaintiff landlord accepted such payment of rent and treated the defendant as his tenant. It was next contended that the tenancy started on 19th October, 1955 and the notice of ejectment was given on 20th March, 1955 asking the defendant to vacate in a month's time. The two courts did not hold this notice to be valid, because the tenancy which started on 19th of a month ended on the 18th of the next month and the notice which was given on the 20th to vacate in a month's time purported to ask the tenant to vacate on the 19th. As the date of termination of the tenancy was 18th and not 19th, it was held that if was not in accordance with sec. 106 of the Transfer of Property Act. If the matter had rested there, I would have had no hesitation in holding the notice to be valid, because a tenant is entitled to remain in occupation till the last minute of the month of his tenancy and the tenant, if he vacated on the early morning of 19th, it would have been a due compliance. It is not necessary that as the dare changes by the middle of night that should be the time when a tenant should quit. I find on the record, however, other reasons why the notice relied upon by the plaintiff is not valid. The notice was produced by the defendant and the date is so written that it can be read both as 20th of March, 1957 or 28th of March, 1957. The plaintiff in his plaint has mentioned the date of the notice) which he gave to be 28th March, 1956. This, therefore, is the correct date. If the defendant mentioned the date of the notice to be 20th March, 1957, in his list of documents, he could be under a mistake, for, as stated above, the dare could be read both as 20th or 28th March. The postmark on the notice shows that it was posted on the 2nd April, 1957 and delivered to the defendant on 4th April, 1957. The date of posting is nearer to 28th than to 20th. If the correct date of the notice be taken to be 28th of March, 1956 mentioned in the plaint, as it should be, the whole argument of the plaintiff that he had given notice for the termination of the tenancy on the 19th of the month falls on the ground. Another ground and which is a more appropriate ground for holding the notice to be invalid is that although the date of the tenancy is mentioned as 19th of October, 1955, that date corresponds to Asoj Sudi 4, Svt. 2011 as mentioned in the rent note. The tenancy, however, was not from month to month according to the English Calendar but was agreed upon according to the Hindi Calendar. The rent note is on a printed form and that form provides for payment of rent month by month according to the Hindi Calendar. The rent note is on a printed form and that form provides for payment of rent month by month according to the Hindi Calendar or the English date and one of them had to be scored out. It has not been scored out, but the plaintiff has claimed the rent to be due according to the Hindi month in his plaint as mentioned in the earlier part of the judgment. The tenancy would, therefore, be deemed to be month to month according to the Hindi Calendar. It has been held in several cases that the words "month to month" or "year to year" mentioned in sec. 106 T. P. Act can be Hindi year or the Bengali year or the English year, as the case may be. Reference may be made to Raja Beharilal Nath vs. Kailas Chandra Dutt (1), Kesoram Poddar vs. Banamali Dey{2) Ahmed Alt Biswas vs. Jyotsna Kumar Bandopadyay (3), and Haridas Tapadar vs. Sailendra Chandra De (Minar) (4 ). There is no doubt that in the present case the tenancy was from month to month according to the Hindi Calendar and the notice according to sec. 106, in the absence of a contract to the contrary, should have been for vacating on the date on which the monthly tenancy expired. As the monthly tenancy in the present case started on the Sudi 4th of a month, it ended on the Sudi 3rd of the succeeding month and on the same Hindi date of the succeeding months. The notice which was given on the 28th of March or even if it be taken to have been given on 20th of March, expired on a date which did not coincide with the end of the monthly tenancy. The 28th of March was Chait Vadi 12th and 20th March was Chait Sudi 5th. The notice purported to call upon the defendant tenant to vacate in a month's time, i. e. , on Baisakh Vadi 12th or Baisakh Vadi 5th, if the date of the notice be taken to be 28th or 20th of March, 1957 as the case may be. Such notice was invalid. There is no force in this appeal. It is accordingly dismissed with costs. . ;