1. This appeal arises out of a simple suit in ejectment filed by the plaintiffs-appellants, for recovery of possession of the disputed lands situated in Barpalli, in Sambalpur District, from the defendants who are described as 'sub-tenants' under the C. P. Tenancy Act. The plaintiffs' claimed the right to eject the defendants, as the latter were in arrears of rent due for the years 1942-43 and 1943-44 at Rs. 21/- a year. It is not denied that the defendants are recorded as 'subtenants' in the successive Settlements. But the claim made on 'their behalf is that they have acquired a permanent occupancy right in the disputed lands by reason of their long occupation extending; for over fifty years, at a uniform rent of Rs. 10/- and that they, were not liable to be evicted. The Trial Court held that the defendants had failed to prove their case of permanent tenancy and granted a decree in ejectment to the plaintiffs, subject, however, to the payment of compensation in respect of some improvements said to have been made by the defendants. The learned Subordinate Judge, on appeal differed from the finding of thelearned Munsif, and held that the defendants were not liable to eviction as, in his view, they had acquired a right of permanent tenancy in the lands by paying a uniform rate of rent for at least sixty years, for the disputed land, and as the landlord had never attempted to eject them or their predecessor at any time before. He accordingly allowed the appeal.
2. The circumstances relied on by the defendants in support of their case are : (i) that the origin of the tenancy is unknown; (ii) that they have been paying a uniform rent for over half a century; (iii) that the tenancy has devolved from father to sou for generations; and (iv) that no attempt had been made by the landlord to eject the tenants during this period. It had further been argued that the defendants' forefather had put up a tank for irrigating the lands and that fact alone, besides supporting their case of permanent tenancy, would entitle them to recover compensation from the plaintiffs for 'improvements'.
3. The C. P. Tenancy Act classifies tenants in.Section 3 as 'absolute occupancy tenant, 'occupancytenant', 'village service tenant', 'sub-tenant' and'ordinary tenant'. So far as the district of Sambalpur is concerned, there are no absolute occupancytenants, and the tenancy rights are not as complicated as in many other districts of the CentralProvinces. 'Village service tenants' and tenants ofhome farm or bhogras have occupancy rights butall other sub-tenants of land have only a precarioustenure. The sub-tenants of bhogra acquired theright by agreement with the gaontia and the rentarranged between them is fixed by contract. Theordinary form of sub-tenancy of raiyat land orbhogra land is by way of an usufructuary mortgageknown as 'chirol.' These subtenants are also looselyknown as 'sikimi' tenants, and are recorded as suchin the khatians prepared by Settlement officerswhich show the name and other particulars of thesub-tenant and the rent paid by him. No separatesikimi khatians are prepared for the sub-tenants. Incases where they had acquired a permanent right,as in the case of bhogra plots, and where this isproved, the fact is noted in the remarks columnof the khatian. The rights of these sub-tenantsand their status is defined in Chap. 6, C. P. TenancyAct. A sub-tenant is defined as one who is notan occupancy tenant, nor an absolute tenant andwho holds land from another tenant. His tenureis regulated by contract between him and hislandlord, and the period of his tenancy cannot extend beyond one year under Section 60 of the Act. Incertain areas, however, in which the local Government may declare Section 61 to be in force, (sic) acquirethe status of an ordinary tenant. It is clear therefore that so far as the Act is concerned it confersno right of permanent tenancy on a sub-tenant ofraiyati land.
4. It is also well settled that permanence of tenancy is not a universal and integral incident of an under raiyat's holding. If such a right of permanent tenancy is claimed it must be established.
As was laid down by the Judicial Committee in 'SETHURATNAM IYER V. VENKATACHALAM', 47 Ind App 76 this must be done 'by proving a custom a contract or title and possibly by other means'. In the present case there is no custom either alleged or proved.
The origin of the tenancy being unknown the question of contract does not arise. Nor is it the case of the defts. that they were on the land even before the tenancy between themselves & the plffs'. ancestors was created. No title can therefore be inferred. All that we now have is that the defts. have been in possession for over fifty years & that during this period the rent has remained unchanged, & the question is as to whether this fact by itself would be sufficient to entitle them to acquire permanent occupancy rights. It is nou uncommon in this country that landlords allow their tenants to remain in occupation, for long periods so long as they are loyal & continue to pay their rent regularly. The mere fact that the delts, have been in occupation for over fifty years would not necessarily import that there was a contract that they should be in occupation for ever, on the other hand, it may be noted that in two successive Settlements the defts. have been recorded as sikimi tenants or sub-tenants & this fact alone would militate against any presumption of permanence of tenancy. None of the cases cited by the learned counsel for the resps. is really of any assistance as those cases related to grants of land for building purposes or where special circumstances existed, such as the putting up of permanent structures with the consent of the landlord; but in agricultural tenancies it is well settled that it is for the tenant to establish that he acquired a right of permanency either under custom, or through, a grant. In 'MAGNIRAM v. KASTHUR BHAI', 49 Ind App 54, the decision turned upon the construction of the grant & it cannot be a guide for the decision of the case before us. On the other hand, the cases reported in 'SEENA PENA v. CHOKA-LINGAM', 31 Ind App 83 and 'SECRETARY OF STATE v. LUCHMESWAR SINGH', 16 Ind App 6 would go to show that no such inference of permanency is permissible either from long possession or payment of a uniform rent. It is not the business of the pltff. to explain the nature of possession; it is the business of the defts. to show that his possession leads to the inference of perpetual tenancy. I am, therefore, not satisfied that the defts. have discharged the onus that lay upon them of proving that they have acquired a right of permanent tenancy in respect of the suit lands. The statute is definitely against such a contention; & no contract or grant having been proved the plffs. are entitled to a decree.
5. It was next contended that the defts. are entitled to compensation for the cost of a tank known as 'Burla Tank' which had been put up on the suit lands by their forefathers. Sections 31 to 34 C. P. Tenancy Act, which deal with improvements & compensations therefor, clearly show that it is only the occupancy tenant or the ordinary tenant who is entitled to make improvements & that the sub-tenant has no such right. Section 32 relied on by the defts. clearly does not cover the costs of improvements made by a sub-tenant & he is not entitled to compensation for any such improvements. But as the plff. did not challenge the finding of the trial Ct. directing the appointment of assessors to fix compensation under S. 33, C. P. Tenancy Act, either by way of appeal or by way of cross-objection in the appellate Ct the finding of the trial Ct. on the question of compensation must be taken to have become final & binding as between the parties.
6. In the result the plffs. are entitled to a decree for eviction as prayed for in the plaint but subject to the payment of compensation. The judgment of the learned Subordinate Judge is set aside & that of the trial Ct. is restored. This appeal is allowed with costs.
7. The lower appellate Court has dismissed the plffs. suit on the ground that
'the defts. have acquired a right of (permanent) tenancy in the lands as they are paying rent at a uniform rate for at least, sixty years; if not more, & as the landlord never attempted to eject them or their predecessors at any time.'
In cases of this kind the question is not one of acquisition of the limited right of permanent tenancy by adverse possession as the learned Subordinate Judge seems to think. It is not as though there is any proof of an original invalid grant of a permanent under-lease under which the defts'. predecessors have entered into possession & in respect of which they may be said to have acquired prescriptive rights. The only question is whether the facts above noticed by the learned Subordinate Judge are enough to raise the presumption of a lawful grant of a permanent under-tenancy in favour of the defts.' predecessors. It may be that as the learned Subordinate Judge says, that, prior to the enactment of Section 60 of the C. P. Tenancy Act of 1898, there was no statutory prohibition against such permanent under-leases. But it appears likely that. Section 60 is only a statutory recognition of the customary law in this behalf as then understood aS pointed out by the P. C. in 'SETHURATNAMIYER v. VENKATACHALAM', 43 Mad 567 'permanence is not a universal & integral incident of an under raiyat's holding.' It would, appear to be much more exceptional so in Sambalpur land-tenures. The facts therefore which may give rise to a presumption of lost grant of permanent under-tenancy in such cases must be of an exceptional nature. I agree that the facts proved in this case are not enough to enable us to come to any such conclusion in favour of the def is particularly having regard to the fact that in the last two successive statements the defts.' predecessors have been recorded as 'sikimi' tenants.
8. The lower appellate Ct. was also inclined to think that the deft, could not be ejected since there was no valid notice to quit. The point, however, has not been raised in the written 'statement of the deft. & he is not entitled to raise it for the first time in second appeal See 'SURATSINGH v. MT. RANI', 59 Ind Cas 46 (Nag).
9. I agree, therefore, that the appeal is to beallowed with costs & that the decree of the trialCt. is to be restored. The trial Ct. will, afterassessment of the compensation as per the directions in the decree of the trial Ct. & the paymentthereof fix proper time for delivery.