Iqbal Ahmad, J.
1. This is a plaintiffs appeal and arises out of a suit for possession of two houses by ejectment of the defendants and for Rs. 17 on account of arrears of rent. The plaintiffs' case was that the houses in dispute belonged to them, that the defendants were in possession of the same as the plaintiffs' tenants and that the tenancy was determined by means of a notice sent by the plaintiffs to the defendants which notice the defendants refused to accept. The defence to the suit was that the houses in dispute belonged to the defendants, that they were not the plaintiffs tenants and that they were in adverse possession of the house in dispute and the site for more than 12 years.
2. The trial Court held that though the site of the houses in dispute belonged to the plaintiffs, the houses were built by the predecessors-in-title of the defendants, and that from the circumstances of the case, it was reasonable to presume that
the tenure is permanent and that the plaintiffs are not entitled to oust the defendants from the land on any account.
3. It further held that the defendants were liable to pay the amount claimed by the plaintiffs on account of arrears of rent and accordingly passed a decree for that amount and dismissed the suit with respect to the possession of the houses in dispute.
4. Both parties were dissatisfied with the decree of the trial Court with the result that the plaintiffs filed an appeal against that portion of the decree that was against them, and the respondents filed a cross objection maintaining that they were in adverse possession of the site of the houses In dispute and were not liable to pay any rent to the plaintiffs. The lower appellate Court held that the site of the houses in dispute belonged to the plaintiffs and was given to the defendants' ancestors for building purposes, and the houses in dispute were built by the defendants' ancestors more than 60 years prior to the institution of the suit, and that the defendants were not liable to be ejected from the houses. It further held that there was no substance in the plea of adverse possession urged by the defendants and that the defendants were liable to pay the rent claimed by the plaintiffs. On these findings it dismissed both the appeal and the cross-objection.
5. The decrees of the Courts below are assailed by the learned Counsel for the plaintiff-appellants on the ground that the Courts below have erred in law in presuming a permanent tenancy simply from the fact that the houses in dispute, which are kachcha houses, were built more than 60 years ago, and it is argued that, in view of the provisions of Section 106 of the Transfer of Property Act, the defendants should have been presumed to the holding under a lease from, month to month that was terminable on the part of the lessor by 15 days' notice expiring with the end of a month of the tenancy. In support of this contention reliance has been placed by the learned Counsel for the appellants on the oases of Mohim Chandra Sarkar v. Anil Bandhu Adhicary  9 C.L.J. 362, Baroda Prasad Burman v. Prosonna Kumar Das  16 C.W.N. 564 Syama Charan Pal v. Kailash Chandra Pal  58 1.C. 189 and Afzal-un-nisa v. Abdul Karim  47 Cal. 1.
6. It has been held in the first two cases, noted above, that the mere facts that a lease of land was given for dwelling purposes and that the lessees were allowed to construct buildings that were neither masonry buildings nor buildings of a permanent character and were allowed to remain in possession of the land on payment of rent for a long periods are not in themselves enough or sufficient to raise the presumption that the tenancy was a permanent one. In the case of Mohim Chandra Sarkar v. Anil Bandhu Adhicary  9 C.L.J. 362, the circumstance that the lessee was not allowed to erect masonry buildings or to cut down trees was pointed out by the learned Judges as a circumstance indicating that a permanent lease was not intended. According to the decision in the case of Baroda Prasad Burman v. Prosonna Kumar Das  16 C.W.N. 564, if the house built by the lessee is of a permanent character, that is to say, a masonry dwelling house, the tenancy is to be presumed to be a permanent one. But if the building is not of a substantial character the lease must be presumed to have been a lease from month to month. Mr. Justice Boys while issuing notice in the present appeal observed that:
I do not myself, subject to anything which I might hear further, appreciate the difference between a case where a tenant has erected kachcha buildings or kachcha pucca buildings or pucca buildings and I do not see where any line could be drawn.
7. With all respect to the learned Judges of the Calcutta High Court I am unable to agree with them that the nature of a lease granted for building purposes is to depend on the character of the building actually constructed. If the origin and the nature of a tenancy is not known, and if it ia proved that a land was let for building purposes and a building was actually constructed on the same, and remained in occupation of the lessees for a long number of years, these facts, in the absence of anything pointing to the contrary conclusion, should be enough to lead to the presumption that the tenancy was a permanent one. A kachcha house is also a building of a permanent character, vide, Nasir-ul-zaman Khan v. Azim-ul-lah  28 All, 741. It may be that a pucca building is a building more permanent than a kachcha one but the mere difference in the degree of permanence cannot alter the nature of the tenancy. The fact that a kachcha house has been in existence for a period of more than 60 years, and has passed by succession to the heirs of the lessee, who originally built the house, may be: enough to lead to the presumption that the lease, is a permanent one. If I am right in holding that a kachcha house is a building of a substantial character I am unable to distinguish the present case from the case of Gungadhur Shikdar v. Ayimuddin Shah  8 Cal. 960, and I am, with all respect unable to discover the ground on which that case was distinguished by the learned:Judges of the: Calcutta High Court, who decided.the case of Baroda Prasad Burman v. Prosonna Kumar Das  16 C.W.N. 564
8. It has been held in the case of Syama Charan Pal v. Kailash Chandra Pal  58 1.C. 189, that: where the origin of a tenancy is unknown, and the tenancy was for residential purposes, and the original tenant and his successors have been in occupation for over 60 years and the tenancy was treated by the landlord as heritable, the tenancy must be presumed to be a permanent one. It is true that in the case of Afzal-ul-nisa v. Abdul Karim  47 Cal. 1, one of the various facts, from which the presumption of a permanent tenancy was drawn, was the fact that a pucca house had been built upon the land leased, but it was never decided by their Lordships of the Privy Council that if the house built had been a kachcha one, such a presumption could not be drawn. It may also be noted that the lease in the present case having been granted before the passing of the Transfer of Property Act is not governed by that Act, vide Padmanabaya v. Ranga [1911} 34 Mad. 161.
9. Moreover, the judgments of the Courts below can be supported on another ground. There is no reason why, from; the facts found, it should not be presumed that there was a license granted by the predecessors-in-title of the plaintiffs to the predecessors-in-title of the defendants to build houses on the site that belonged to the plaintiffs' predecessors-in-title. If there was a license granted for the purpose mentioned above, the licensees having erected a work of a permanent nature on the site, the license cannot in view of; the provisions of Section 60 of the Easements Act be revoked.
10. I am not prepared to hold that in the present case the lower appellate Court, on the facts found, was not justified in holding that the tenancy was a permanent one and that the defendants were not liable to ejectment.
11. I may also point out that the case-or which the plaintiffs came into Court, viz.,. that they were the owners of the houses in dispute has been definitely found to be-false by both the Courts below.
12. For the reasons given above, I dismiss, the appeal with Costs.