1. In this case the appellants take exception to the decree on the ground that on the 2nd February, 1921, the suit was compromised and that on the 2nd March, 1921, they drew attention of the lower appellate Court to the allegation of a compromise by their petition filed on the 2nd March. The petition is before me; and it certainly is not a formal petition one which sets out the compromise and prays that the compromise may be recorded and the suit decreed on compromise. What happened was that on the 2nd March the appeal was adjourned till the 10th March for the appellant to state what she had to state with regard to the plaintiff s allegation. On the 10th March the appellant filed a petition stating in effect that the plaintiff's allegation was untrue and explaining by a different explanation the circumstances under which the sum of Rs. 510 had been paid to the plaintiffs. The order-sheet sets out the fact of that petition and then says this: 'Inform pleader for the respondent. Let the petition be filed.' The next order on the same day is as follows : 'Argument heard in part; put up to-morrow for further orders.' The judgment upon appeal in no way refers to this allegation of a compromise and the appeal appears to have been argued by the pleaders of the parties on its merits.
2. In this appeal, the first objection taken is that the learned Judge was wrong in entertaining the appeal and should have decided upon the fact whether the suit then pending in appeal was compromised or not : Now it is quite certain that if a compromise is alleged, that is a question of fact for investigation; and the conduct of the parties and the notes on the order-sheet make it a little difficult to know what had happened. It seems incredible that any learned Judge in the face of an allegation that the appeal had been compromised would proceed to hear the appeal ignoring that allegation altogether. It seems also incredible that the pleader for the respondent should argue the appeal without insisting in some way upon a note being taken of the point and that he had no duty to take any part in the appeal. The parties between them have combined to make the record as unintelligible as it can well be, and the only explanation that seems to be reasonable is that when it was found that the allegation of a compromise-was asserted and denied and that the petition stated very vaguely the intention of the parties the matter was not insisted upon. Otherwise I cannot bring myself to think that the learned Judge would have ignored the allegation of compromise and that nothing to that effect would appear in the judgment. As a matter of fact that the mere absence of any affidavit on the part of the appellants stating that their pleader had stoutly insisted upon this point and asked the Judge to go into the matter under Order 23, Rule 3, leads me to think that the learned Judge entertained this appeal because the objection was not insisted upon. It is quite apparent that the appellants have taken this chance of succeeding on the appeal. For this reason this appeal must be gone into on the merits.
3. The plaintiffs sued to eject the defendant from possession of a piece of land measuring about 2 cottahs in area and situated in the Bougaon bazar. It has been found as a fact that the title of the defendant is a permanent one. The history of the holding which is now in the possession of the defendant is as follows: In 1877 one Bhagwan, (the father of the present plaintiffs) settled it with one Gobindo Chandra Ghose. There was no written lease or other instrument of tenancy and the jama appears to have been settled orally. The finding is that it is not known for what purpose the letting was made originally; but that so far as we can trace it, it appears to have been used for the purpose of a shop of some kind or another. In fact at one time it is known that the lessee was realising rent of a hut constructed by him on the land. There have been several occasions on which the tenancy passed by way of succession from the holder to the holder's heirs, But on the 15th February, 1890, we have a transfer which on the evidence shows that it must have come, or would probably come to the knowledge of the landlord. That Kobala asserts without ambiguity that the rent is a Kaimi rent of Rs. 2-6 and the right which the Kobala purports to grant is plainly intended to be a permanent right. Khat-Kobala was executed during the lifetime of the original lessor (the plaintiffs' father) who died in 1907, having throughout the intervening years taken no steps to eject the transferee to endeavour to raise the rent or to refuse, to recognise the transferee; moreover one holder is shown to have mortgaged the land and the defendant got a satisfied mortgage bond from her vendor. What happened in the end was that in 1915 the present defendant took a Kobala of the property and the present suit has been brought to restrain her from erecting a pucca building and to get her ejected.
4. The test which has to be applied by the Court may be, I think, most concisely stated in the words of Lord Robertson in the case of Nilratan Mandal v. Ismail Khan Mahomed (1904) 32 Cal. 51. The question here, as in other similar cases, is whether the true inference from facts is that the tenure is permanent or precarious, the burden of proof being on the tenant. The question is whether the learned Judge has properly directed himself in applying the principles of law applicable to the case and whether there is evidence to support his findings.
5. The first objection to the judgment of the Court below is that the Kobala of 1890, is not evidence against the plaintiffs. It appears to me that under Section 13 of the Indian Evidence Act the assertion in the Kobala is evidence and I think the Court below was not wrong in attaching some importance to it in the circumstances as a matter of fact. The Court below has further found that from the commencement of the tenancy in 1875 up to the present time the rent has been paid at a uniform rate. As to this, it appears that in the old Kabuliat it is stated as Rs. 2-6 whereas in the conveyance of the defendant it is stated to be Rs. 2-8. The learned Judge, however, has considered the dakhilas that have been produced. There is a dakhila of 1892 and another of 1895 showing that the rent was Rs. 2-6 and cess 3 annas and 3 pies. The tenant therefore paid altogether Rs. 2-9-3; just before the defendant's conveyance the dakhila shows the rent to be Rs. 2-8 and cess one anna and three pies; and the learned Judge taking the thing, as I think, quite correctly, has refused to attach any importance to this trifling redistribution in the total amount which the tenant would pay to the landlord and has held that the tenant paid rent at the uniform rate throughout the whole period. He has looked at the matter broadly; I have no doubt that he is quite right.
6. Another point which requires consideration is as to the way in which the learned Judge has dealt with the cases that have been cited to him by either side. He has distinguished certain cases cited on the part of the respondent on the ground that these cases relate to the homestead lands and the present suit is not concerned with homestead lands. It seems to me that in that respect there is little or nothing in the distinction taken by the learned Judge but he has proceeded upon certain cases which are in my judgment quite in point. The only things, as it seems to me, that I ought to be satisfied of before upholding the judgment of the learned Judge are these. The first is, I think that I ought to be sure that he has appreciated that the burden of proof is on the tenant to show such facts as to make the inference of the permanence of the tenure a reasonable inference. In this respect the judgment is made clear by the way in which the learned Judge has dealt with the case. He takes it that on the proof of certain things it is open to him to make the inference of the permanence of the tenure. That being so, it would, I think, be idle criticism of his judgment to say that he has not appreciated that the burden of proof is initially upon the tenant. I have no doubt that he has appreciated that perfectly well. He has proceeded upon the footing that circumstances have to be shown by the tenant which would make it reasonable to infer the permanent letting of the tenancy. The next question is this; It is said that the principle followed by the learned Judge is applicable where the original tenancy is not known, and that it is inapplicable to this case because we know that in 1895 the father of the plaintiffs leased it to the first lessee Bhagwan. That, it seems to me, makes no difference at all. The letting appears to have been made in 1875; but we do not know the terms of it. We do not know the original purpose of the letting we know the date, we know the names of the parties; and of course, we know the land and the rent. But we know nothing else. It seems to me that in these circumstances where the terms have to be inferred from subsequent conduct of the parties, the principle is just as applicable as is in cases where the date of the origin of the tenancy is not known and the names of the parties are not known. In the present case the tenancy existed for a long time-ever since 1875. In these circumstances it does not seem to me that the view of the matter taken by the learned Judge is in any substantial respect erroneous. He has discussed one or two matters of law. His view as to the liability of this property for cess may be wrong and his remarks as to the cases cited on behalf of the respondent may not be altogether applicable. But the substantial position is this-that from certain facts proved he has drawn an inference which is a legitimate inference; and for this purpose it does not appear to me that he has misdirected himself on any point of principle or misconceived any material point of fact. The principle applicable to cases depends to a large extent upon their individual facts. Thus it is manifest that the case Kedar Nath Sadhukhan v. Madhu Sudan Das A.I.R. 1923 Cal. 682 is much weaker on its facts than the cases of Nilratan Mandal v. Ismail Khan Mahome (1904) 32 Cal. 51 and Surendra Nath Roy v. Dwarka Nath Chakravarty A.I.R. 1919 P.C. 847 both of which are decisions of the Judicial Committee. The present case, in my view is somewhere between these two in point of strength. It is not quite so strong as the case where the landlord himself is shown to have taken a mortgage of the holding on the footing that it was a permanent one. On the other hand it is very much stronger than the case of Kedar Nath v. Madhu Sudan A.I.R. 1919 P.C. 682. It was for the learned Judge to say whether on these facts he would draw the inference, that the tenancy was permanent at its inception. In my judgment he has drawn his inference quite rightly that the tenancy was permanent at its inception.
7. For these reasons the appeal fails and is dismissed with costs.