P L D 1963 Dacca 318 (PLP)

(b) . . . . . . . . . . . . . (c) on the ground that the term of his lease has expired, when he holds the land under a written lease ; (d) on the ground that the tenancy has been terminated by his landlord by six months notice expiring at the end of the agricultural year, when he holds the land otherwise than under a written lease" Mr. Ahmadur Rahman Khan, the learned Advocate for the appellant submits that the present case falls under clause (c) of section 65 inasmuch as the under‑raiyati lease in respect of the suit land was created by a written lease, namely, the kabuliyat Exh.

1. The said kabuliyat, dated the 2nd Ashar, 1343 B. S. was for a period of 1 year only. Thus the written lease expired several years before the institution of the suit. It appear that the defendants were holding over as under‑raiyats after the expiry of the written lease. That being so, the present case is covered by clause (d) of the said section 65.

7. Mr. Ahmadur Rahman Khan then submits that even if this case falls under the said clause (d), the tenancy was duly terminated by six months' notice as required by that clause. Exhibit 4 is the copy of the ejectment notice served on the defendants by post. The lower Appellate Court found on evidence that the notice, though sent by post, was duly served on the defendants. This finding of fact is not challenged in this appeal. Although the learned Subordinate Judge held that the ejectment notice was duly served on the defendants, he was of the view that the service of notice by post was insufficient for the purpose of ejectment. In this regard, he expressed his view in the following words: "But the notice was served through post. In view of the ruling reported in 2 C W N 225 notice through post is invalid. If we read rule 2 framed under the Sylhet Tenancy Act and compare it with the aforesaid ruling the conclusion is obvious that notice by post is insufficient for the purpose of ejectment. The suit, therefore, should be dismissed on this ground". Mr. Ahmadur Rahman Khan contends that the learned Subor dinate Judge erred in law in holding that service of ejectment notice by post is insufficient. His submission is that when the notice was served on the defendants, the mere fact that the notice was served by post cannot render such service insufficient. His further submission is that the ruling relied on by the learned Subordinate Judge relates to a case under the Bengal Tenancy Act and as such, it cannot apply to the present case which is one under the Sylhet Tenancy Act.

8. The Sylhet Tenancy Act itself does not provide for the mode of service of ejectment notice. But the mode of service of such notice has been prescribed by the rules made under that Act. Rule 2 of the said Rules which alone is relevant here is as follows: "

2. Where no other mode of service of notice is provided by the Act or by these rules, service shall be effected in a manner provided for the service of summons on a defendant under the Code of Civil Procedure, 1908, if the notice is addressed to one or more persons occupying or owning the same holding or tenure; and if it is addressed to a number of persons occupying or owning different holdings of tenures in the same village, the notice shall b e served in the manner provided for the service of summons on a defendant under the Code of Civil Procedure, 1908, or by proclamation and beat of drum and by posting it, in the presence of not less than two persons on some conspicuous place in the village, and also by fixing it up in the village office, if any, where the rent is usually paid. In the case of uninhabited villages, the posting of the notice shall be made in the nearest inhabited village: Provided that, where the person to be served is a minor, notice shall be served on the minor and also on his or her legal guardian or on his or ‑her guardian ad‑Iftem appointed by the Court for purposes of service on an application by the persons asking for service of notice." The sufficiency or otherwise of the service of the ejectment notice by post depends upon whether the rule quoted above is directory or mandatory. This is conceded by the learned Advocate for the sole opposing respondent No. 3.

9. When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. If a mandatory enactment is not strictly complied with, the thin done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial, so far as relates to the validity of the thing done, whether the previous of that enactment are strictly complied with or not. (See Craies on Statute Law, fifth edition, pages 240‑41). There is no general rule as to when an enactment is to be considered mandatory and when merely directory, and it is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purpose of the enactment to be construed. Although rule 2 of the rules made under the Sylhet Tenancy Act prescribes that the service of notice shall be effected in the manner provided for the service of summons on a defendant under the Code of Civil Procedure, the real purpose of that rule is to secure the service of all notices coming under that rule, including the notice of ejectment under section 65 (d) of the said Act. The purpose of that rule will be achieved if the required notice is actually served on the person concerned, although the service, thereof may not be effected exactly in the prescribed manner. In such view of the matter, the provisions of the said rule 2 should be construed as directory. In the present case, the notice of ejectment was, no doubt, served by post and not exactly in the manner as prescribed by the said rule. But the fact remains that the ejectment notice though sent by post, was actually delivered to the defendants as held by the lower Appellate Court. Hence, the service of the ejectment notice in the present case, though affected by post, is valid and sufficient, the same having achieved the real purpose of the said rule

2. It is true, in a similar case, namely, the case of Tara Das Malakar v. Ram Doyal Malakar (2 C W N 125) a Division Bench of the Calcutta High Court held that the service of notice to quit affected by post and not in the manner provided in the Code of Civil Procedure could not be considered a good service of notice. But in that case it was not considered if the relevant rule made under the Bengal Tenancy Act was mandatory or directory. Therefore, the opinion expressed in the cited case is no authority for holding that the service of ejectment notice Affected by post is insufficient.

10. The learned Advocate for the respondent then contends that six months notice required by clause (d) of section 65 of the Sylhet Tenancy Act was not given in this case. The notice to quit was served on the 15th October 1955, which corresponds to the 28th Aswin, 1362 B. S. In that notice, the defen dants were asked to vacate the holding the expiry of the last day of Chaitra, 1362 B. S. Thus, clear six months notice was given to the defendants as required by clause (d) of the said section 65.

11. The next point urged on behalf of the respondent is that all rent‑receiving interests having been acquired under the East Bengal State Acquisition and Tenancy Act with effect from the 14th April 1956, the defendants became tenants directly under the Provincial Government in respect of the suit land under the provision of clause (e) of subsection (4) of section 3 of the said Act. This contention does not hold good on scrutiny, The tenancy, as already said, was terminated by six months notice with the expiry of the last day of Chaitra, 1362 B. S. The last day of Chaitra 1362 B. S. corresponds to the 13th April 1956. Thus, the tenancy was terminated by notice one day prior to the acquisition of rent‑receiving interests under the provisions of the said Act. When the defendant ceased to be under‑raiyat before the acquisition of rent‑receiving interests, the question of their becoming tenants directly under the Provincial Government in respect of the suit land under the provisions of section 3 (4) (e) of the East Bengal State Acquisition and Tenancy Act did not arise.

12. The last point urged on behalf of the respondent is that even if the tenancy was terminated one day prior to the acquisition of rent‑receiving interests the suit for ejectment is not maintainable in view of the provisions of that Act. In other words, it is contended that after the acquisition of rent‑receiving interests on the 14th April 1956, what remained with the plaintiff was a right to eject the defendants, but such right can no more be enforced by a suit. Also this contention is not sound. The possession of the suit land must in law be deemed to be with the plaintiff from the time of the termination of the defendants' tenancy. This view finds support from the decision of their Lordships of the Supreme Court in Civil Appeal No. 34 of 1948 an unreported decision. As soon as the tenancy was terminated by notice, the defendants became trespassers in respect of the suit land and the right to get possession thereof immediately vested in the plaintiff. It is true, certain sections, namely, sections 30,1 46‑B, 69 and 72 of the East Bengal State Acquisition and Tenancy Act have created bar to the jurisdiction of Civil Court, but none of those sections relates to a suit for ejectment like the present one. When the plaintiff became entitled to get possession of the suit land prior to the acquisition of rent‑receiving interests and when there is no bar, either expressed or implied, against the maintainability of a suit for ejectment, the suit is maintainable.

13. In the result, the appeal succeeds and is allowed. The judgment and decree of the lower Appellate Court are set aside. The plaintiff shall get khas possession of the suit land after evicting the defendants there from. The defendants shall remove the huts from the suit land within three months from the date of receipt of the records in the trial Court, failing which the plaintiff shall be entitled to get possession thereof by execution of the decree. Having regard to the question of law involved in this case, the parties are directed to bear their respective costs of this appeal. S. B./A. H.. Appeal allowed.