1. The present appeal arises out of a suit brought by the plaintiffs to eject the defendants from a piece of homestead land measuring 21/2 haras after service of notice to quit. The Court of first instance found that the notice had been duly served but that it was bad in law, and it further held that the tenancy was a permanent one and, therefore, the plaintiffs were not entitled to get a decree for ejectment but were only entitled to a decree for rent. On appeal, the lower Appellate Court has found that the notice to quit was duly served and that the notice was valid in law, and on these points, no argument has been addressed to us at the hearing of this appeal, The lower Appellate Court has farther found that, as the land was let out for the building of a dwelling house on it, it must be presumed that the tenancy was a permanent one. On these findings, the Subordinate Judge has confirmed the judgment and decree of the first Court and has dismissed the suit.
2. The plaintiffs have appealed to this Court and, in this appeal, the only question which has been raised is whether the tenancy under the terms of the lease by which it was created is a permanent tenancy or not. The kabuliat executed by the defendant No. 1, who is one of the original, lessees and by the father of the defendant No. 2 who is the other lessee has been translated and we have had it before us. The document, after setting out the title of the lessor, goes on to say; 'we, the lessees, having prayed for taking kasra malguzari settlement of the homestead lands of Sonatun Chang, etc., etc., for dwelling in the same, you granted us a pattah in respect of the said homestead lands at a jama of total Rs. 3.' The description of the settlement is that which would apply to an ordinary lease for a year or for a term of years. There is nothing in the description to indicate that the lease was to be permanent or heritable. The document goes on to say that the lessees 'shall raise houses on the homestead lands and dwell in the same and pay rent annually to the Sarkar.' In fact, the lease, in its terms, appears to be nothing more than an ordinary yearly lease of a piece of homestead land for the purpose of building a house on it for dwelling purposes. There is no suggestion in the lease itself that the house is to be of a permanent character; that is to say, a masonry dwelling house and the fact that no salami appears to, have been paid at the time when the lease was granted seems to us to support the conclusion that the intention of the lessor was merely to grant a yearly lease of the land.
3. On behalf of the respondents, however, it has been urged that this lease must be interpreted to be a permanent lease because it was a lease for building purposes: and in support of this view, we are first referred to a decision of this Court in the case of Juhooree hall Sahoo v. Dear 23 W.R. 399 That was the case of a lease granted to an European pensioner. The judgment is not very clear as to what style of house was built on the land after the lease had been granted; but from the fact that the house was surrounded by a wall, the building appears to have been of a permanent character and would seem to have been a masonry building, or something of that description. In the present case, it is to be observed that the lease was granted on the 16th Bhadro 1283, B.S., corresponding to 31st August 1876; that is to say, that the lessees or their successors-in-interest have been in occupation for the last thirty years or more. The learned Pleader for the respondents relies on this circumstance as well as on the fact that the land was let out for building purposes to support the conclusion that the lease was a permanent lease. The mere fact, however, that the lessees have been allowed to remain in possession of the land on payment of rent for a long period would not in itself be sufficient to support the conclusion that the lease was in its inception a permanent lease; and the most that the respondents are able to say with regard to the second point, namely, that the lease was for building purposes, is that, from the time that they obtained the lease, they have spent Rs. 500 in throwing earth, planting trees and making corrugated iron sheds. It cannot, therefore, be said in the present case that the expense incurred by the defendants in building the house is of a very extravagant nature. From the fact, as appears from the written statement, that Rs. 500 was the total amount spent during thirty years, it is evident that the expenditure is certainly not very large.
4. The next case which is relied on is that of Gunga Dhur Shikdar v. Ayimuddin Shah Biswas 8 C. 960. The facts of that case are, however, entirely different from the facts of the present case. In that case, the land had been let out for upwards of sixty years for building purposes and the building was of a substantial character, and was built sixty years before by the ancestors of the defendants. In those circumstances, this Court held that the Court was at liberty to presume that the land was granted for building purposes and that the grant was of a permanent character. We do not think, however, that that ruling can be accepted as any authority in the present case. There is nothing whatever to prove that the building is of a permanent character or that a masonry building has been constructed on the holding. The last case relied on is that of Promada Nath Roy v. Srigobind Chowdhry 32 C. 648 : 9 C.W.N. 463. In that case, it was held that, when the lease was granted, the parties contemplated the possibility of a masonry building being erected on the land and, in fact, a permanent structure was erected on the land. In the present case, it has not been seriously argued that it was the intention of the parties that a masonry building should be constructed on the land. The learned Pleader for the respondents argues that, as the lease did not restrict the lessees from constructing a masonry building, therefore, it should be presumed that the intention was that they should erect a masonry building. We do not think that, from that omission in the document, we should draw such a conclusion and we are of opinion that the absence of any words in the document itself indicating that the lease was intended to be permanent or that the rights under the lease were to pass to the heirs of the lessees supports the conclusion that the intention was to grant a yearly lease and not a permanent lease of the land. The learned Pleader has, however, argued that because the word sthalavishikta is used in one clause of the lease which restricts the lessees from transferring the land by gift or sale or mortgage or by letting out the same, it must be concluded that the intention of the parties was to grant a permanent lease. The word used, however, does not, in our opinion, necessarily indicate that the lease was intended to be of a permanent character and we do not think that it is possible to arrive at the conclusion suggested by the learned Pleader, especially as the expression occurs only in the paragraph restricting the lights of the lessees and in the body of the lease, no words are used to show that the rights of the lessees under it were to be permanent or heritable. We are unable to agree with the view which the lower Courts have taken that the lease granted by the plaintiffs to the defendant No. 1 and the father of the defendant No. 2 created a permanent tenancy. In our opinion, it created a yearly tenancy terminable by six months' notice to quit, the period covered by the notice terminating at the end of the year of the tenancy. The lower Appellate Court has found that such a notice was duly served on the defendants and, in those circumstances, we are of opinion that the plaintiffs are entitled to a decree entitling them to eject the defendants. We accordingly decree the appeal, set aside the judgment and decree of the lower Appellate Court and direct that the suit be decreed with costs in all the Courts. The plaintiffs will be given a decree entitling them to eject the defendants from the lands in suit, reasonable time not less than six weeks from the date of the arrival of the record in the lower Court being given to the defendants for the removal of the materials of the house from the land.