1. This appeal is by defendant 2. The substantial point in dispute between the parties is whether the tenancy held by defendant 1 under the plaintiffs is permanent or not. The suit was instituted for ejectment after service of a notice to quit. The Munsif made a decree in favour of the plaintiffs on 30th May 1932. Both the defendants appealed. The lower Appellate Court dismissed the suit on the sole ground that the notice to quit was invalid. There was then a second appeal to this Court. The decree dismissing the suit was set aside and the appeal was ordered to be reheard on the merits. At the rehearing the Subordinate Judge came to the conclusion that the tenancy of defendant 1 is permanent and not temporary. He held however that the matter was res judicata between the plaintiffs and defendant 1. He accordingly dismissed the appeal of defendant 1 and allowed the appeal of defendant 2. The plaintiffs have now appealed to this Court. Two points have been urged in support of the appeal : (1) that the lease of defendant 1 is not permanent; and (2) that the appellant is debarred from showing the permanent character of the tenancy, firstly because the matter is res judicata, and secondly because the decree which has been made against defendant 1 is binding against her.
2. On the first point the question is whether it is possible to infer from certain facts that defendant 1's lease is permanent. Of course, in considering that matter, it is necessary to bear in mind the habits and customs of the people. In reaching this conclusion, the learned Subordinate Judge relied upon the following matters: (1) Some recitals in certain documents. Briefly there is a series of transfers and sub-leases dating from 1879 in all of which there is an assertion that the lease is permanent; (2) The conduct of defendant 1 in connexion with the documents Ex. A(1) and B(1) ; (3) The fact that the premises, which are situtated in the town of Howrah, are being and have been used, for the purpose of residence; (4) The terms and origin of the lease are unknown; (5) Successions and transfers have been allowed for many years and there has never been any attempt to determine the lease by a notice to quit; and (6) The rent has been unvaried.
3. On the first point Mr. Sen contended that these documents are inadmissible in evidence for this purpose. The question depends upon the meaning to be attached to the words 'any transaction by which the right was asserted' in Section 13, Evidence Act. His contention is that the right asserted was merely a right to transfer or to sublet the property. Both the learned Judges in the Courts below pointed out that the decisions are conflicting. In the present case however the lease was granted before the Transfer of Property Act was enacted. The assertion of a right to transfer therefore necessarily implied the existence of a permanent lease. The result is that even if the narrower construction of Section 13, Evidence Act is accepted, these documents are admissible, and the learned Judge was justified in placing reliance upon them. The importance of the second matter is that defendant 1 was himself one of the landlords. It is therefore extremely improbable that he would purchase the lease on an allegation that it was permanent if, in fact, it was not. Subsequent to this purchase he let out a portion to one Sitaram Biswas for residence and realized a salami of Rs. 375. This sublease has subsequently passed by transfer to the appellant. He then let out another portion to the appellant on a salami of Rs. 315. In both these documents a permanent right is asserted and a permanent sub-lease is actually granted. These transactions took place in the year 1900 and 1909. The conduct of defendant 1 in this connection is therefore a very strong piece of evidence in favour of the appellant. The third matter is certainly a factor which ought to be taken into consideration in view of the habits of the people. It is extremely unlikely that a lease for residential purposes in a town would be taken on precarious terms.
4. It is admitted that the terms of the original lease are unknown. Mr. Sen however contended that the origin is known in view of a certain averment made in the written statement. On behalf of the appellant, Dr. Pal contended that this averment is really nothing more than a statement to the effect that the lease has been in existence from the time of the Misras, that is to say, the defendants were merely giving the history of the tenancy so far as they were aware of it. In my judgment, that is the proper interpretation. If a defendant is to be adversely affected by a statement made in a written statement, that statement should be in clear and unambiguous terms. There was nothing in the plaint to suggest that the origin of the tenancy is known. On the other hand, there is no definite statement as to the origin in the written statement. In my opinion therefore the learned Subordinate Judge was right when he held that the origin of the tenancy is unknown. In estimating the weight to be given to the fifth matter, it must be remembered that there was no real prospect of ejecting the tenants after the purchase by defendant 1 until the land was allotted to the saham of the plaintiffs' predecessor in a partition suit. It is hardly likely that defendant 1 would have been willing to join as a plaintiff in an ejectment suit. This matter, however, only affects the period subsequent to the purchase by defendant 1.
5. Regarding the fixity of rent the defendants tried to meet an apparent reduction. This is due to the fact that in some of the documents the rent is set out as being Rs. 15-12-3. In order to meet this, they put forward a story of erosion by the action of a tank and a consequent reduction in rent. This story was disbelieved by the learned Munsif. The learned Subordinate Judge, however, appears to have accepted it as a possible story. With all due respect I should find it very difficult to believe it. Dr. Pal, however, did not place any reliance upon it. The plain fact of the matter is that the question does not really arise. In the plaint the rent is said to be Rs. 15-4-0. There is no allegation that it ever varied and the plaintiffs made no attempt to show that Rs. 15-12-3 was ever realized. I have no doubt at all that the entry of this figure in some of the documents was due to a mistake. The significance of this matter, as pointed out by the learned Subordinate Judge, is that no attempt was made to determine the tenancy, although there is evidence to show that there had been a rise in land values before the tenancy passed to defendant 1. In addition to these matters Dr. Pal also relied upon the fact that there were permanent pucca structures on the land. Inasmuch however as these structures were made after the purchase by defendant 1, no weight can be attached to this circumstance.
6. On the other hand, Mr. Sen has laid stress upon the conduct of defendant 1 in connexion with partition suit. The learned Munsif placed very great reliance upon this but ignored his conduct in connexion with the purchase of the lease. In the partition suit it was apparently agreed that the mourashi mokarari holdings would not be actually partitioned. The present tenancy was included in the other schedule. No objection to this course was taken by defendant 1. It is impossible to find any consistency in his conduot, because even at a later date he was realizing salami from and granting permanent sub-lease to defendant 2 on the allegation that the tenancy was permanent. I myself prefer the estimate of his conduct made by the learned Subordinate Judge rather than that made by the Munsif. The former has relied upon his active conduct, the latter upon his merely remaining passive. No doubt it is easy to attack each item upon which the learned 'Subordinate Judge has relied upon separately and to say that it is insufficient. The real problem, however, is to weigh the cumulative effect of the evidence as a whole and to see whether it justifies an inference of permanency. Taking the matters upon which the learned Subordinate Judge has relied in so doing, I am of opinion that the inference which he made was justified by the evidence.
7. The plea of res judicata depends upon another suit brought by the plaintiffs against defendant 1. This suit was instituted before the time of the notice to suit had expired on the basis that the tenancy was still in existence. The relief claimed was an injunction restraining defendant 1 from erecting pucca structures. Defendant 2 was not a party. The main question, however, was exactly the same as that which has been agitated in the present suit. Inasmuch however as the sub-tenancy of defendant 2 was in existence at the time the suit was instituted, she will not be bound by the decision. There is ample authority for that proposition. Defendant 1 had granted a permanent sub-lease and had really no in Merest himself in the suit. Supposing, altogether apart from any collusion, he had been unwilling to spend money and allowed an ex parte decree to be passed against him, it would be quite unreasonable to hold that defendant 2 would be bound by that decision. Mr. Sen's last contention is founded upon the right of a landlord who has obtained a decree for ejectment against the tenant to eject the sub-tenants in execution of his decree. The reason is that a tenant holding under a temporary lease cannot grant a permanent sub-lease. Hence in a suit for ejectment against the tenant the landlord need not make the sub-tenants parties. They are bound by the decree and can be ejected in execution proceedings. In support of this contention Mr. Sen relied upon the observations of Page J. in Ramkissendas v. Binjraj Chowdhury (1923) 10 A.I.R. Cal. 691. Those observations were certainly obiter dicta. But they were accepted by a Division Bench of this Court in Yusuf v. Jyotishchandra Banerji : AIR1932Cal241 . On the other hand, Dr. Pal relied upon the decision of Rankin J. in D.E.D.J. Ezra v. J.E. Gubbay (1920) 7 A.I.R. Cal. 706. In my judgment, there is no conflict in these decisions. The learned Judge in this case pointed out the risk which is taken by a plaintiff when a sub-tenant is not made a party to the suit. He said this:
The risk taken by omitting to join any such person is the risk that after decree he may set up a right to possession, independently of the lease which has become forfeited, whether by equity against the lessor or by other adverse title.
8. These decisions, however, were all concerned with the right of a decree-holder to eject in execution sub-tenants of the judgment-debtor when the judgment-debtor's lease has been forefeited or otherwise legally determined. They can have no application to the rights of a sub-tenant under a permanent lease. It would be meaningless to say that although the appellant is not affected by res judicata, she is liable to be ejected on the strength of the decree passed against defendant 1 on the sole ground that the matter is res judicata. Inasmuch as the appellant has established that she has a permanent sub-lease, in my opinion she is not liable to be ejected on the strength of the decree passed against defendant 1. The appeal accordingly fails and is dismissed with costs. Leave to appeal under Section 15, Letters Patent, is granted.