R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff, and it arises out of a suit instituted by him to eject the defendant by serving a notice to quit. In the plaint there are two other prayers, viz. for recovery of arrears of rent before the termination of the tenancy, and for mesne profits after the termination of the tenancy by the notice to quit. The plaintiff says that he served the notice on 16th September 1930 requiring the defendant to vacate the land with the expiry of the month of Chaitra 1337.
2. The plea of the defendant was that no notice had been served and that he could not be ejected as he was holding the land in permanent right. These defences were overruled by the Court of first instance. The defendant preferred an appeal to the lower appellate Court. Three points were raised in that appeal, viz. (1) whether the notice to quit had been served on the defendant; (2) whether the defendant if he could be ejected was entitled to any compensation'for the improvements which he made on the land; and (3) whether he could at all be ejected on the ground that he was a permanent tenant. The learned Additional District Judge who heard the appeal did not record his finding on the first two points aforesaid; but he dismissed the suit on the ground that the plaintiff was precluded from saying that the defendant's tenancy was of a precarious nature by reason of 'a decision in a previous rent suit between the parties. The defendant came upon the land for the first time on the basis of a registered lease executed in the year 1909: By this lease he was given the right to remain on the land for three years at a rent of Rs. 15 a year, i.e. Re. 1-4-0 a month. This lease was granted by the plaintiff's predecessor in title, one Jitendra Nath Banerjee. Thereafter the landlord's interest in the land, vested in the plaintiff by reason of a conveyance executed by Jitendra and a compromise by Jitendra's mother. After that the plaintiff instituted a suit for rent against the defendant, and he claimed rent at the rate of Rs. 1-4-0 per month, i.e. Rupees 15 a year. The defendant stated that the rent was altered to Rs. 6 a year by reason of an agreement arrived at between him and the mother of Jitendra, Kiron Sashi, after the term of the lease of 1909 had expired. The Court of first instance framed two issues: (1) whether there was a relationship of landlord and tenant between the plaintiff and the.defendant; and (2) what was the rate of rent. The learned Munsif found that there was a relationship of landlord and tenant between the plaintiff and the defendant; and that the rate of rent was Rs. 12 a year. The said findings were affirmed by the learned Subordinate Judge in an appeal preferred by the defendant against the Munsif's decree. In this rent suit no question of status was raised or decided. The questions that were raised and decided were the relationship of landlord and tenant and the question as to what was rate of rent.
3. The learned Additional District Judge says that the decision, in this rent suit operates as res judicata on the question of status. I do not follow his judgment on that point. The question whether the tenancy was permanent or precarious was not the subject-matter of an issue in the rent suit, and there was no decision on the said point. I am therefore clearly of opinion that the point of res judicata has been decided quite wrongly by the learned Judge. He records a finding that the evidence led by the defendant to prove the grant of a permanent lease to him has not been substantiated. It is a well-established principle of law that a landlord is entitled to eject a tenant unless the tenant can prove that he has a right to remain on the land permanently. The onus is clearly on the defendant to prove the permanency of his tenancy. In this case he led evidence to prove that; but according to the finding of the learned Additional District Judge, he failed. I accordingly hold that the defendant is not a permanent tenant on the land and he is liable to ejectment, provided the plaintiff proved service of notice to quit, on him. On that point there has not been any finding by the learned Additional District Judge, nor has the learned Additional District Judge considered the claim of the defendant to compensation. I accordingly set aside the decree passed by the learned Additional District Judge, hold that the question of permanency is not res judicata in the yearly suit, maintain his finding that the defendant has failed to prove that he is a permanent tenant, and remand the case to the lower appellate Court in order that two and two issues only may be decided by that Court namely, (1) whether the notice to quit has been served upon the defendant; and (2) whether the defendant can claim any compensation for the alleged improvement, in case the plaintiff gets a decree in ejectment. The question as to whether the plaintiff will be entitled to mesne profits as claimed in the suit, will be dependent on the first issue which I framed, viz. whether the notice to quit had been served on the defendant or not. So far as the plaintiff's claim for arrears of rent is concerned, that has not been considered also by the lower appel late Court. If the defendant challenges that part of the decree of the learned Munsif, it will be open to the lower appellate Court to go into that question. Costs of this appeal will abide the result.