KEDAR NATH SADHUKHAN Vs. MADHU SUDAN DAS

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for ejectment. The case for the plaintiffs was, that the defendants held as tenants and that they are tenancy which was of a terminable character had been duly terminated by the service of notice to quit. The Court of first instance held that the tenancy was permanent and dismissed the suit. Upon appeal the Subordinate Judge has held that the tenancy was terminable and had been duly terminated before the institution of this suit. On the present appeal, the conclusion of the Subordinate Judge upon each of the two points in controversy has been assailed on behalf of the appellant.

(2.) As regards the nature of the tenancy, the Subordinate Judge has found that the tenants have been in occupation for more than 40 years, and that during this period the rent has been paid at a uniform rate. The Subordinate judge however, has held that long possession and uniform payment of rent are not by themselves suffiicent to justify the finding that the tenancy was permanent from its inception. We are of opinion that the view taken by the Subordinate Judge is well-founded.

(3.) Our attention has been drawn to the decision in Shoroshi Charan Ghoze V/s. Bhagloo Sah 57 Ind. Cas. 877 : 32 C.L.J. 85 as also to the judgment of the Judicial Committee in Surendra Nath Roy V/s. Dwarka Nath Chakravarty 30 Ind. Cas. 877 : 24 C.W.N. 1 : (1919) M.W.N. 811 (P.C.); neither of these cases is of real assistance to the appellant. We have not in the present case the very material elements which existed in the decisions to which our attention has been invited, namely, that the land had been let out for purposes of residence, that it had been so occupied, that there had been instances of transfer and succession, and finally, that structures had been erected on the land. In these circumstances it is impossible for us to hold that the view taken by the Subordinate Judge as to the terminable character of the tenancy is erroneous in law.