Mushtaq Ahmad, J.
1. This is a plaintiffs' appeal arising out of a suit for ejectment of the defendants and for recovery of Rs. 30 as damages for use and occupation.
2. The plaintiffs' case was that one Badrul Islam was the owner of the disputed site and the houses thereon, which, under a rent deed dated 31st December 1934, were occupied by the defendants on a yearly rent of Rs. 60. The land is situate in what is known as 'Sarai Badrul Islam in Qasba Nehtaur, district Bijnor.'
3. In April 1943, after the death of Badrul Islam, his heirs transferred the sardi to the plaintiffs who brought the suit as its present owners. Their main complaint was that the defendants had unlawfully settled in the sarai other persons and thereby made themselves liable to ejectment.
4. The defence taken was that, while Badrul Islam was the owner of the site, he was not the owner of the houses which had really been built by defendants l to 4 and 6 with the consent of the proprietor of the sarai. The defendants also denied execution of the rent note and their position as tenants and challenged the validity of the notice served by the plaintiffs.
5. The trial Court, finding in a very careful judgment that Badrul Islam was the owner of the houses also, that the deed of rent dated 31st December 1934 was genuine, and that the defendants by reason of their holding over after a valid notice of eviction were liable to be ejected, decreed the suit. The lower appellate Court reversed that decree except in regard to damages by holding that the defendants had only taken the site under the deed in question from the owner, having built the houses themselves, that there was no relationship of landlord and tenants between the parties, that the defendants were in possession as licensees, and that as such there was no question of a notice of eviction prior to the suit. On these findings the said Court, while affirming the decree of the trial Court with regard to damages, reversed it on the question of ejectment and disallowed that relief to the plaintiffs-appellants.
6. The question of ownership of the houses in suit depends primarily on the interpretation of the terms of the document dated 31st December 1934. The trial Court construed it as meaning that the houses belonged to the landlord and the lower appellate Court took it to indicate that they belonged to the defendants who had built them with the permission of the landlord. It would be desirable to quote the following passages from the document:
(1) 'Whereas an enclosure Sarai Kham...in which there are five houses facing north, four facing west and eight facing east....: owned and possessed by Moulvi Badrul Islam...we the executants have taken for the purpose of residence and living since 1st of January 1934....'
(2) 'Besides the houses now existing, if any other house would be built, the materials of that also after the vacation of the Sarai by the executants would be the property of the owner,' and
(3) 'If the executants, before the expiry of five years, vacate the Sarai, they shall not be entitled to take away the materials like thatches, rafters and pillars thereof.
7. Naturally, the plaintiffs relied on the first two passages and the defendants on the third. In the first recital it is clearly mentioned that there were 17 houses facing in different directions and all owned and possessed by the landlord which the executants of the deed were taking for the purpose of residence. The existence of these houses is also mentioned in Clause 2. There can thus be no doubt that on the date of the execution of the document these houses did exist, which means that they had already been constructed. The learned Counsel for the defendants-respondents argues that the houses had been built by the defendants even prior to the date of the rent note, inasmuch as the document mentions that the executants will have the rights of a tenant from 1st January 1931. In the first place, it is not probable that although the defendants were to go through an elaborate process of building as many as 17 houses presumably at a heavy cost, the execution of a document was to be delayed until after those houses had been erected. In the second place, it is also unlikely that the parties should not have clearly mentioned in the document that the houses were really the property of the executants of the deed. That being so, I am inclined to think that the houses were the property of the landlord, as they would presumably be, and that the houses, were also intended to be the subject of the tenancy under the deed of 31st December 1934.
8. The contention of the learned Counsel for the respondents with reference to Clause 3 quoted by me is that ordinarily there would be no recital authorising the landlord to take away the materials unless they belonged to the executants of the rent deed. This may be true in certain cases, but it is equally true that the landlord may insist on such a recital being entered in the deed as a pure measure of precaution. The fact that the prohibition in this case was confined only to the more easily removable materials undoubtedly suggests that the landlord did apprehend the removal of such materials at least and decided to provide against that contingency. Further, the argument has to be tested in the light of the clearer terms of the first two clauses which I have already discussed. If a possible interpretation of the words of Clause 3 destroys the literal meaning and effect of the first two clauses, which themselves admit of no doubt whatsoever, surely the latter must prevail. In this view, the finding of the trial Court that the first two clauses proved the landlord's ownership in the houses was correct, and it should have been accepted by the lower appellate Court.
9. The lower appellate Court having found that the houses in question had been built by the defendants with the landlord's permission held the defendants to be licensees and immune from ejectment. The basis for this finding not being sustainable in view of my interpretation of the rent deed it cannot stand, and we shall have to examine the status and obligations of the defendants from another standpoint.
10. It is true, as contended by the learned Counsel for the defendants, that a mere rent note or a qabuliat does not amount to a lease within the meaning of Section 105, T. P. Act. It was so held among others, in the cases of Nand Lal v. Hanuman Das 26 ALL. 368. But this alone does not decide the controversy in this case. The defendants having been found to, have executed the rent note of 31st December 1934 on the terms embodied therein they would be bound by those terms, although the landlord, who had not signed the document, would not be bound by them. Their possession in its inception was permissive and it retained that character throughout the period that they held it under their agreement with the landlord. The matter is stare decisis in view of the settled law in this Court. The cases in Bijai Narain Singh v. Sri-Maharaja Parbhu Narain Singh A.I.R. (1) 1917 ALL. 102, Mirza Mohammed Hasan v. Buddhu : AIR1988All32 , Ganga Sahai v. Badrul Islam A.I.R. (29) 1942 ALL. 330 and Peareylal v. Ramsarup : AIR1944All221 are clear authorities on this point The last but one of these cases is strikingly similar to the present case, the contention of the defendant there also that he was a licensee under circumstances as here having been rejected.
11. Indeed, the rent note having provided that the defendants shall be liable to vacate the houses on the expiry of five years without any right to remove their materials, the question of the initial ownership of the houses in this case is merely academic. They having agreed to this term are bound by it as a matter of their undertaking. In the case of Mirza Mohammad Hasan v. Buddhu : AIR1938All32 referred to above, the defendant in view of a recital in the rent note executed by him was ordered to be ejected from a house which he had himself built.
12. I have, therefore, come to the conclusion that this appeal must be allowed, the decree of the lower appellate Court set aside in so far as it refused the relief for ejectment and that of the Court of first instance restored. I order accordingly. The appellants will be entitled to their costs throughout.