1. These are two connected appeals and arise out of two different suits instituted by the appellants in one case and the respondents in the other under the following circumstances:
2. The Original Suit No. 103 of 1925 was instituted on 2nd February, 1925, by Jokhu Kurmi and out of this the Appeal No. 1113 of 1926 arises. Suit No. 345 of 1925 was instituted by the appellants in Second Appeal No. 1120 of 1926. The memorandum of appeal however, is incorrectly drawn up and it describes the appellants as the defendants. The learned Counsel for the appellants has been permitted to correct that memorandum of appeal. The office will accordingly correct the first page of the paper-book and also the eatrie3 in the register of appeals.
3. The plaintiff in the earlier suit Jokhu Kurmi brought his suit on certain allegations which were subsequently changed. His original allegation was that he was in possession of a certain site and certain buildings thereon, adversely to the defendants in the suit, who are the zemindars, namely, the Tripathis of the village. Subsequently, the Court permitted him to amend the plaint, and the position taken in the amended plaint was that Jokhu Kurmi held the land under a license. Before this amendment was allowed by the Court the Tripathis filed the Suit No. 345 of 1925 with the prayer that Jokhu Kurmi might be ejected, inasmuch as he had denied the title of the Tripathis.
4. The two suits were tried together. The first Court held that the amendment had been properly allowed, that the plaintiff Jokhu was a licensee and his ancestor, under the license had executed a work of a permanent character and was not liable to be ejected. Some of the reliefs asked by Jokhu Kurmi were granted and others were refused. The suit of the Tripathis failed in its entirety and was dismissed.
5. Three appeals were taken before the District Judge and were heard by a Subordinate Judge. The learned Subordinate Judge dismissed all the three appeals. He was of opinion that the amendment had been properly allowed to Jokhu Kurmi, that the Tripathis were not at all prejudiced by the amendment, inasmuch as they were given a fresh opportunity to file a written statement, that it was not proved, as alleged by the Tripathis, that Jokhu's ancestors held the land under a service tenure, that the ancestor of Jokhu who built on the land was a licensee and that the licensee having erected a building of a permanent character on the land in pursuance of the license was not liable to be ejected.
6. In the two appeals it is contended that the amendment was improperly allowed by the Court of first instance, that having denied the zemindars' title, Jokhu was liable to be ejected and that there is no clear finding as to the nature of the building and that, therefore, the judgment was vitiated.
7. As regards the amendment of the plaint, I agree with the Courts below that it was open to the plaintiff to abandon the position that he had taken up, namely, that he was the proprietor of the land. The position then taken up was really an untenable position and if, after the amendment, the defendants were not taken by surprise and were given an opportunity to file a fresh statement to contest the fresh allegations, there has been no failure of justice. It is too late in the day to contend that the amendment should not have been allowed.
8. The denial of title does not operate to a forfeiture of a license. This was held in Akbar Ali Khan v. Shah Muhammad 40 Ind. Cas. 443 : 39 A. 621 : 15 A.L.J. 592.
9. Lastly, the question is whether the Courts below were wrong in holding that the work executed under the license was of a permanent character. Whether a work is a work of permanent character is a question of fact. Section 60, Clause (6) came to be interpreted by this Court in the case of Nasir ul-Zaman Khan v. Azimullah 28 A. 741 : 3 A.L.J. 765 : A.W.N. (1906) 216. Aikman, J., at page 743 decided that the words ' of a permanent character ' were used to distinguish it from work which was of a temporary nature. I entirely agree with this interpretation. The building which is erected for residential purposes and in which admittedly at least two generations have lived can be regarded only as a building of a permanent character. A building erected on mere bamboo posts or wooden posts to afford a temporary shed, say, to cattle, would not be a building of a permanent character. Where, therefore, a landlord permits a person who wants to settle on the land to erect a building which is meant for residence and permanent residence, the mere fact that it was built with mud would not make it a temporary building. It was argued that a building which costs only a few rupees would not be a building of a permanent character. But most of the houses of residents in villages do not cost much and having regard to the general property of the residents, nobody would expect that they would erect buildings at a considerable cost But the fact remains that these buildings, humble though they are, would be occupied, from generation to generation. Such buildings must be regarded as buildings of a permanent character.
10. The findings of the Court below are sufficiently clear and no fresh evidence as to the character of the building is necessary. A view of the plan attached to the plaint in the suit filed by Jokhu Kurmi will show that the building consists of at least three rooms and a courtyard surrounded by those buildings.
11. In the result both the appeals fail end they are hereby dismissed with costs.