BARODA PRASAD BURMAN Vs. PROSONNA KUMAR DAS

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the plaintiffs to eject the defendants from a piece of homestead land measuring 21/2 haras after service of notice to quit. The Court of first instance found that the notice had been duly served but that it was bad in law, and it further held that the tenancy was a permanent one and, therefore, the plaintiffs were not entitled to get a decree for ejectment but were only entitled to a decree for rent. On appeal, the lower Appellate Court has found that the notice to quit was duly served and that the notice was valid in law, and on these points, no argument has been addressed to us at the hearing of this appeal, The lower Appellate Court has farther found that, as the land was let out for the building of a dwelling house on it, it must be presumed that the tenancy was a permanent one. On these findings, the Subordinate Judge has confirmed the judgment and decree of the first Court and has dismissed the suit.

(2.) The plaintiffs have appealed to this Court and, in this appeal, the only question which has been raised is whether the tenancy under the terms of the lease by which it was created is a permanent tenancy or not. The kabuliat executed by the defendant No. 1, who is one of the original, lessees and by the father of the defendant No. 2 who is the other lessee has been translated and we have had it before us. The document, after setting out the title of the lessor, goes on to say; "we, the lessees, having prayed for taking kasra malguzari settlement of the homestead lands of Sonatun Chang, etc., etc., for dwelling in the same, you granted us a pattah in respect of the said homestead lands at a jama of total Rs. 3." The description of the settlement is that which would apply to an ordinary lease for a year or for a term of years. There is nothing in the description to indicate that the lease was to be permanent or heritable. The document goes on to say that the lessees "shall raise houses on the homestead lands and dwell in the same and pay rent annually to the Sarkar." In fact, the lease, in its terms, appears to be nothing more than an ordinary yearly lease of a piece of homestead land for the purpose of building a house on it for dwelling purposes. There is no suggestion in the lease itself that the house is to be of a permanent character; that is to say, a masonry dwelling house and the fact that no salami appears to, have been paid at the time when the lease was granted seems to us to support the conclusion that the intention of the lessor was merely to grant a yearly lease of the land.

(3.) On behalf of the respondents, however, it has been urged that this lease must be interpreted to be a permanent lease because it was a lease for building purposes: and in support of this view, we are first referred to a decision of this Court in the case of Juhooree hall Sahoo v. Dear 23 W.R. 399 That was the case of a lease granted to an European pensioner. The judgment is not very clear as to what style of house was built on the land after the lease had been granted; but from the fact that the house was surrounded by a wall, the building appears to have been of a permanent character and would seem to have been a masonry building, or something of that description. In the present case, it is to be observed that the lease was granted on the 16th Bhadro 1283, B.S., corresponding to 31st August 1876; that is to say, that the lessees or their successors-in-interest have been in occupation for the last thirty years or more. The learned Pleader for the respondents relies on this circumstance as well as on the fact that the land was let out for building purposes to support the conclusion that the lease was a permanent lease. The mere fact, however, that the lessees have been allowed to remain in possession of the land on payment of rent for a long period would not in itself be sufficient to support the conclusion that the lease was in its inception a permanent lease; and the most that the respondents are able to say with regard to the second point, namely, that the lease was for building purposes, is that, from the time that they obtained the lease, they have spent Rs. 500 in throwing earth, planting trees and making corrugated iron sheds. It cannot, therefore, be said in the present case that the expense incurred by the defendants in building the house is of a very extravagant nature. From the fact, as appears from the written statement, that Rs. 500 was the total amount spent during thirty years, it is evident that the expenditure is certainly not very large.