1. The suit in which this appeal arises was for ejectment of the respondents from some 25 cattas of land in Punjab Nayabasti, within the municipal boundaries of Calcutta. The plaintiff-appellant alleges in his plaint that the defendants-respondents are tenants-at-will liable to ejectment on a proper notice to quit and that such notice had been served upon the defendants' predecessor one Bises war Roy Choudhury.
2. The claim of the respondents is that the disputed land has been held by them and their predecessors on a permanent tenure and that no notice to quit was served on them.
3. The Munsif of Alipur who tried the suit held that the notice to quit was properly served but decided in favour of the respondents on the ground that the respondents' tenure is permanent. The plaintiff appealed to the Subordinate Judge of 24 Pargannas who came to the conclusion that the holding in suit is permanent and that the defendants are not liable to ejectment and on this finding dismissed the plaintiff's appeal.
4. In second appeal the learned advocate on behalf of the plaintiff-appellant contends that the findings of fact arrived at by the lower appellate Court do not give rise to the legal inference that the tenure of the respondents is a permanent tenure. It has not been seriously contended before us by the learned vakil for the respondents that the findings of the Subordinate Judge that the respondents' tenancy was permanent, was one of fact and was binding on us in second appeal; nor could such contention be successfully raised. The question here, as in all other similar cases, is whether the true inference from the facts is that the tenure is permanent or precarious, the burden of proof being on the tenants respondents. In this connexion I need only refer to the following observations of the Judicial Committee in a recent case.
A third question, more formidable in character, must be disposed of before their Lordships further proceed. The learned District Judge on appeal here, dismissed the respondent's suit, finding that the appellants' tenancy was permanent. It is, therefore, contended by the appellants that this finding was one of fact by the learned. Judge not open to review either by the High Court on second appeal or by this Board. Now their Lordships would be the last to seek to abridge the effect of Sections 100 and 101, Civil P.C., or weaken the strict rule that on second appeal the appellate Court is bound by the findings of fact of the Court below.
They are well aware, moreover, that questions of law and of fact are often difficulty disentangle. It is clear, however, that the proper effect of a proved fact is a question of law, and the question whether a tenancy is permanent or precarious seems to them, in a case like the present, to be a legal inference from facts and not itself a question of fact. The High Court has described the question here as a mixed question of law and fact, a phrase not unhappy if it carries with it the warning that, in so far as it depends upon fact, the finding of the Court on first appeal must be accepted. On these lines, which the High Court appear strictly to have observed, the appeal to that Court was competent and it was in their Lordships' judgment open to the learned Judges there to entertain it as they did See Dhanna, Mal v. Moti Sagar .
5. The facts found by the lower appellate Court are these : The disputed land which is now one holding originally consisted of 4 separate holdings which were subsequently amalgamated into one. The area of land, the name of the tenant and the rental payable for each holding are given in the table below.
Tenant. Land. Rent.
Rs. As. Gds. K.
1. Jagannath Mistry. 71/2 Cattas 3 1 1 1
2. Abhoy Charan Shah 16 ' 12 0 0 0
3. Sreenath Sarkar 11/2 ' 1 1 1 1
4. Gopal Bairagi. 1/2 ' 1 4 0 0
6. The date of creation of the first of these holdings is unknown. The other three tenancies were created after 1258 B.S. (1851 A.D.) and before 1268 B.S. (1861 A.D.). The last two holdings were amalgamated in 1268 when the rent was increased to Rs. 2-8-annas. The rent of the second holding was increased to Rs. 24 in 1265 B.S. (1858 A.D.) and the rent of the first holding was increased to Rs. 10 in 1261 B.S. (1864 A. D.). There has been no change in the rental of any of these four holdings since 1271 B.S. (1864 A.D.). On the 6th of Aghrayan 1289 B.S. (1882 A.D.) defendants' predecessor Barada Kanta Roy purchased these holdings from Anandamoyi Dasi, wife of the tenant Abhoy Charan Saha in the benami of Rakhal Chandra Mukherjee. Biseswar was the son of Barada Kanta Roy and the defendants are the sons of Biseswar. Notice to quit was served on Biseswar by the plaintiff. The conveyance in favour of Anandamoyi from the original tenant of these four holdings has not been produced in this case. But the conveyance in favour of Barada by Anandamoyi. Ex. 'B' shows that the four holdings were regarded as two one was the amalgamation of holdings 1, 3 and 4 with the consolidated increased rental of Rs. 12-8-annas and the other was holding No. 2 with the increased rental of Rs. 24. In Ex. B holdings were described as Kayemi Mourashi (Permanent). Ex. B also shows that the second holding of 16 cattas was Anandamoyi's dwelling house and that she had one pucca one-storied house on the same; besides there was one 'Golepata' hut on the amalgamated holdings of Rs. 12-8. The lower appellate Court also referred1 to certain dakhilas (rent receipts from 1295 B.S. (1888 A.D.) to 1303 B.S. (1896 A.D.). In each of those dakhilas there is an entry made by the gomastha. of the plaintiff that the holding was a. mokarari mourashi one. No document has been produced in this case to show to what extent the gomastha had authority to bind the plaintiff by an admission of the kind made in the dakhilas as to the permanent character of the holding in question.
7. If these admissions can be regarded as admissions made by or on behalf of the plaintiff they would be very-strong evidence in support of the defendants' case. Apparently it was considered in the lower Court that unless the plaintiff could displace the statements of his gomastha by showing his ignorance of their being made his case would be defeated or seriously damaged. Indeed the lower appellate Court goes to the length of holding that the statement in the dakhilas would conclusively prove that the holding is a mokarari mourashi holding. Although there is a column in the rent receipts showing the nature of the tenancy, in cases governed by the. Transfer of Property Act, it is not usual to indicate the nature of the tenancy in the rent receipts. The admission made-by the gomastha was a gratuitous admission and, may be withdrawn unless there is some obligation not to withdraw it. Ordinarily the gomastha is authorized to receive rents, to give a discharge to tenants for such rents and in some oases even to recognize the transferee of an occupancy holding but it certainly is not usual for a gomastha to confer any permanent right on tenants or to make any admission in respect of tenants right which may be binding on the landlord. It is true the landlord might have proved the extent of the authority of his gomastha but in the absence of such authority it cannot be laid down as an inflexible rule that the presumption must be that the gomastha had authority for doing everything which ho may do even to the detriment of his master in connexion with matters which are not properly within the scope of his employment. In this case a former Naib of the plaintiff deposed that the gomastha had no authority for writing the words 'mokarari mourashi' in the rent receipts. The lower appellate Court does not refer to this evidence. All that it says is that the onus lay on the plaintiff to prove the extent of his gomastha's authority as that fact was within the special knowledge of the plaintiff and the plaintiff has not proved it and he presumes from this that the gomastha had authority to give the description in the dakhilas as to the permanent nature of the tenancy. It cannot be affirmed as a general proposition of law that a landlord is always bound by every statement given in the receipts of rent rent by his gomastha. There are cases in the books which go to show that when an agent of the landlord has accepted from the various tenants in the occupation of a holding at one rental proportionate parts of the rents, it does not bind the landlord to recognize a separation of the tenancy in absence of evidence to connect the landlord with the receipt of any proportionate rate of rent by the agent. See Maharani Beni Pershad v. Goberdhan  6 C.W.N. 823 and Maharani Beni Pershad v. Radhin  10 C.W.N. 216.
8. In the case of Bhojohurree v. Aka Golam  16 W.R. 97, this Court held that the purchaser of a ryoti tenure is bound to communicate with the zemindar and obtain his consent to the transfer of the tenure without this being done, a gomastha's receipts of rent are not binding on the zemindar. On the other hand in a Full Bench case Pyari Mohun v. Gopal Paik  25 Cal. 531 it was held that a landlord was bound by a receipt given by his; agent consenting to a division of the holding and a distribution of the rent payable in respect thereof, within the meaning of Section 88, Ben. Ten. Act. In this Pull Bench case it was assumed that the agent was duly authorized to give such a receipt. It seems to me that no inflexible rule of law can be laid down to the effect that the landlord is bound by every statement made in the receipt. It has been conceded by the learned vakil for the respondent in this case that the entry with regard to the nature of the tenancy in a rent receipt would be a superfluous and unnecessary entry in cases of tenancies governed by the Transfer of Property Act. So this admission of the nature of the tenancy by the gomastha as I have already pointed out was a gratuitous admission. There was not here any title on which such an admission can rest. No papers have been produced to show that the landlord before the admission treated the tenancy in question as a permanent tenancy. It is to be noticed, also that this admission of the gomastha is contained in receipts for eight years ending with the year 1896 and since 1896, no receipts were granted because of the dispute between the parties as to the nature of the tenancy. The admission, therefore, being out of the way we have now to consider whether the findings lead to the inference that all these four tenancies aforesaid are permanent tenancies.
9. Summarizing the findings of the lower appellate Court we find the broad facts to be these : With regard to the first holding of seven and half cattas the origin is unknown; its rent was enhanced to Rs. 10 in 1271 B.S. It was amalgamated with holdings 3 and 4 some time before 1298 B.S. (1882 A.D.), some 'Golepatta' huts stood on this consolidated holding at some time. With regard to holdings 3 and 4 their origin is traceable and they were created between 1258 and 1268 B.S.; they were amalgamated in about 1268 and the rent was increased to Rs. 2-8-0 in about the same time; these two amalgamated holdings were again amalgamated with holdings 1 and 2 in about the year 1289. With regard to holdings 1, 3 and & rent had not remained unchanged before 1271 but there has been uniformity of rent since 1271. It does not appear that these three holdings were let for residential purposes; the land is homestead land within the municipality and has been used as an 'Arat' i.e. for the, purposes of shop. These circumstances alone, namely, unaltered rents for 57 years and one transfer of these holdings are not sufficient to raise the inference of permanency. It has not been shown that the claim of permanent tenure as asserted in Ex 'B' i.e., the kabala by Anandamoyi in favour of defendants' predecessor-in-interest Barada Kristo Roy in the benami of Rakhal Chandra Mukherji was brought home to the knowledge of the appellant or his predecessors-in-title and was acknowledged by them. There are no pucca structures in the land. It has not been shown that they were let for residential purposes. It is not shown chat they wore being used for residential purposes. And the fact that they were amalgamated with holding 2 on which at one time a pucca structure stood cannot give to these holdings the character of permanency.
10. In the case of Nainapillai Marakayar v. Ramanathan Chettiar A.I.R. 1924 P.C. 65, the Judicial Committee laid down the law in regard to the matter in hand in the following words:
It cannot now be doubted that when a tenant of lands in India in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant. In Secy. of State v. Luchmeswar Singh (1889) 16 Cal. 223, it was hold that the onus of proving that they had a permanent right of occupancy in lands was upon the defendants, who alleged it as a defence to a suit by their landlord to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus.
11. And again:
A permanent right of occupancy in land in India is a right, subject to certain conditions, of a tenant to hold the land permanently which ha occupies. It is a heritable right, and in some places it possibly maybe transferable by the tenant to a stranger. That permanent right of occupancy can only be obtained by a tenant by custom, or by a grant from an owner of the land who happens to have power to grant such a right, or under an Act of the Legislature.
12. Having regard to these pronouncements we are not satisfied that the defendants have satisfied the onus of proving that they have right of permanent tenancy in these holdings.
13. The learned Vakil for the respondent has relied on two decisions of the Judicial Committee Upendra Krishna Mandal v. Ismail Khan  32 Cal. 41 and Nilratan Mandal v. Ismail Khan  32 Cal. 51. In the first of these cases the case of the tenants rested on a series of transmissions of properties by sale and mortgage which went back as far as 1826 and the continued possession of the tenants and their predecessors-in-title at an unaltered rent and on a kabuliat which show that these transmissions of property as permanent tenancy was brought home to the landlord who recognized the right created by these documents by accepting a kabuliat. In the second casa the land had been occupied by the tenants' predecessors at an unaltered rent for 100 years. They had built on it and have dealt with the property by sale and mortgage. A kabuliat and a patta were executed which brought home to the landlord, knowledge and recognition of the tenants' transmission of the property by sale in an instrument which purported to convey a permanent and inheritable right.
14. Eeliance has been placed by the learned vakil for the respondent on the case of Casperz v. Kedarnath Sarbadhikari  28 Cal. 738. That case is also distinguishable. For in that case the following facts co-existed:
(1) Long possession by the defendants and their predecessors,
(2) the landlord's permission to the defendants' predecessors to build a pucca house upon it;
(3) the existence of the house there for a considerable time;
(4) the addition to the building by successive tenants,
(5) the transfers of the tenure from time to time by succession and purchase;
(6) the acquiescence of the landlord in such transfers of which he could not have been ignorant as he accepted rent from the transferees.
15. So far as holdings 1, 3 and 4 are concerned all these elements do not exist in the present case. For the reasons above stated the legitimate inference to be drawn from the facts in the present case is that with regard to nine cattas of land Covered by holdings 1, 3 and 4 the position of the defendants is that of a tenant-at-will.
16. The case with regard to holding 2 (16, cattas of land) stands on a somewhat different footing from that of other holdings. It appears from the kabala (Ex. B) by which defendants' predecessor Barada Kristo purchased the holdings along with three other holdings from Anandamoyi that this holding was her (i.e. Anandamoyi's) Bhadrasanbati (dwelling house) and that she had one pucca one storied house on this holding. This holding was created between 1258 and 1268 B.S., and we find that sometime before 1289 B.S., there were pucca structures on the holding so that at any rate the inference might 'be legitimately drawn that the land of this holding which was being used for residential purposes was let for such purposes. The rent had not varied for 57 years and that the transfer was recognized by the land' lord and in all the circumstances it may be legitimately inferred that the appellant through his agent had notice of the existence of pucca structure on it. It has been argued on behalf of the appellant that Ex. B is not admissible in evidence against him as he was no party to the said document. But I think that this argument has no substance for the document although not inter partes is admissible in evidence as a transaction within the meaning of Section 13, Evidence Act, by which the right to this property was asserted. So that we have it that the buildings which were of a substantial character were erected so far back as 1882 and that the predecessor-in-title of the defendants lived for sometime in it. In these circumstances it is indeed difficult to say that the inference drawn by the Courts below that this holding 2 is a tenancy of a permanent character, is wrong.
17. It we consider the incidents of the four holdings together after amalgamation into a single holding we find that an unaltered rent nas been paid for 57 years and that there existed a puoea building on a small portion of it at some distant time. These two elements alone are not sufficient to raise the resumption of permanency. But it has been possible in the present case by reason of the evidence furnished by Ex. 'B' to distinguish between the lands of holdings 1, 3 and 4 on which no permanent structures stood and the lands of holding 2 on which such structures existed. The mere fact of amalgamation of four holdings into one would not change the respective incidents of the holding in the absence of a contract to the effect that it was intended to change those incidents and give a higher status to the tenant of the amalgamated holding. No such contract has been proved in the present case and it is not suggested that any existed. We are, therefore, left to infer from proved facts the nature of the new consolidated tenancy. The fact of unaltered rent and existence of a puoca. structure on a portion, as I have already stated, are not sufficient to raise the inference of permanency. It is because of the fact that buildings existed on the 16 cattas holding that we are able to infer that the purpose for which the said land was held was a residential purpose and this fact brings the case within the purview of the decision of Sir Pichard Garth, Chief Justice, in the case of Gangadhar v. Ayimuddin  8 Cal. 960, which was cited on behalf of the respondent.
18. The result, therefore, is that the decrees of the Courts below are set aside and in lieu thereof there will be a decree in favour of the plaintiff for ejectment from the nine cattas of land covered by the holdings 1, 3 and 4. The claim of the plaintiff for ejectment from holding 2 (16 cattas of land) will be dismissed.
19. The plaintiff will be entitled to mesne profits from the date on which the tenancy was determined by notice to quit The mesne profits will be ascertained in the execution Court.
20. Each party will bear their costs throughout.
21. I agree.