1. We are unable to agree with the District Judge that because the lease-deed 'prescribes no time', therefore, it should be regarded as a permanent lease. The fact that the lessee and his assigns have been allowed to continue to occupy the lease site for 60 years cannot create a permanent lease right and cannot have any legal bearing on the construction of exhibit Z See Sivatha Muthu Asari v. Revd. J.N.H. Mesguita 19 Ind. Cas. 824 : 24 M.L.J. 642 : (1913) M. W N. 480 : 13 M.L.T. 513. We are clear that Exhibit Z can only be treated as creating a monthly tenancy. (See Section 100 of Act IV 1882).
2. On the question of the right to compensation and the amount thereof the lower Appellate Court has not given findings and we request it to submit findings on the following issues:
1. Whether the trustees of the temple by their conduct afforded hope and encouragement to the defendant and hi predecessors-in-title that the latter would not be ejected without a reasonable return for the expenditure incurred by them in building upon the plaint site. See Dattatraya Rayaji Pai v. Shridhar Narayan Pai (1892) P.J. 348 : 17 B.p 736.
2. If the above issue is found in the affirmative, what sum is the defendant entitled to as compensation before he could be ejected.
3. Both sides will be at liberty to adduce further evidence. The time for submission of findings is three months from the date of receipt of records. Ten days will be allowed for filing objections.
4. In compliance with the order contained in the above judgment the District Judge of Trichinopoly submitted the following.
5. Plaintiffs got a decree in ejectment. Defendant appealed, and this Court gave him two months' time to pay up his arrears of rent in regarding his lease as a permanent one.
2. On second appeal the High Court held that there was no permanent lease but only a monthly tenancy and called for findings.
1. Whether the trustees of the temple by their conduct afforded hope and encouragement to the defendant and his predecessors-in-title that the latter would not be ejected without a reasonable return for the expenditure incurred by them in building on plaint site? and
2. What sum is defendant entitled to as compensation before ejectment?
3. As regards issue 2, I find Rs. 900 is the value of the house and defendant is entitled to that amount before ejectment, The Munsif found this was the proper valuation. In paragraph 6 of this Court's appeal judgment I agreed with him and have, therefore, given my finding on that point already. It is sufficient to repeat it here. The Munsif's figure is proper for the reasons given by.
4. As regards issue 1, this house-site was given on lease at low rent to defendant's predecessors 60 years ago and has been held at the same rent ever since. Defendant's predecessor built a terraced house on it 35 or 40-50 years ago and defendant who bought it in 1905 improved that property. Plaintiff, the landlord, has suffered this holding at low rent and building for 60 years and I hold that by this alone he encouraged defendant to believe that he could not be ejected without compensation. The actual terms of the lease say that as soon as a tenant fails to pay a month's rent he must remove his thatched roof and go. When we find that on land so held substantial buildings are erected and sold and this property changes hands at the same low rent for 60 years, the landlord has acquiesced in the improvements and either permanency of holding or compensation for ejectment. It is clear from exhibits A and XI and VII that in 1888 a dispute arose about other tenants doing what defendant's predecessor did and the temple landlord, then compromised and recognized the holdings as permanent. Defendant who is a recent purchaser says he relied on their compromises as showing that the holding he bought was also permanent. I think they gave him good reason to think so. A few old men are examined on each side, for defendant that the temple consented to his predecessor building the terraced house and for plaintiff, that he did not consent but objected. I reject all this evidence as worthless. Who is going to remember such matters for 50 years? It is clear that several tenants did make such improvements. Plaintiff questioned their acts and recognized their holdings as permanent. If he ever questioned defendant's predecessor in the same way, I believe he acquiesced in his acts. I think defendant had good reason' owing to the acts of plaintiff to consider ne had bought a permanent holding and that if he were liable to ejectment he would get compensation and I find that Rs. 900 is the value of his building.
5. This second appeal came on fur final hearing on the 13th of December 1915, after the return of the findings of the lower Appellate Court upon the issues referred by the Court for trial.
6. Mr. A. Krishnaswami Aiyar, for the Appellant.--In this case, the findings are called for on a mistaken supposition. At the time when such findings were called for, the decision in Perumal Gramani v. Mahamad Kasim Sahib (8) was not published. The law on that subject is changed.
7. [Seshagiri Aiyar, J.--How can we go back upon our order, when once the findings are called for on a certain supposition?]
8. Mr. A. Krishnaswami Aiyar.--There is no question of estoppel on a question of law. The decision in Perumal Gramani v. Mahamad Kasim Sahib 28 Ind. Cas. 840 is clearly in my favour.
9. [Seshagiri Aiyar, J.--Is that case reported in any other journal?]
10. Mr. V.R. Ponnusawmy Aiyangar amicus curi).--No. 1 reported it because it is a decision on a novel point of law.
11. Mr. T.V. Muthukrishna Aiyar, for the Respondents.--I admit that Perumal Gramani v. Mahamad Kasim Sahib 28 Ind. Cas. 840 is clearly against me, but can your Lordships go behind the order now? In this case the man has been in occupation for 60 years at the same rate of rent.
12. [Sadasiva Aiyar, J.--We cannot help it; the decision in Perumal Gramani v. Mahamad Kasim Sahib 28 Ind. Cas. 840 is clearly against you, we are bound by it.]
13. Following Perumal Gramani v. Mahamad Kasim Sahib 28 Ind. Cas. 840, we hold that the trustee cannot by his conduct make the trust liable to pay compensation to a tenant who builds on the leased site and who has not got a right of permanent occupancy. In the result the District Judge's decision will be set aside and the revised decision of District Munsif restored. The defendant will pay the plaintiffs' costs in the District Court. There will be no order as to costs in second appeal. The time granted to the respondent for removal of buildings in the District Munsif's decree will be extended till the expiry of two months from this date.