1. This appeal has arisen out of a suit for ejectment under Section 106, T.P. Act. The plaintiff's case is that the defendant is a tenant-at-will of the disputed holding at a rental of Rs. 18-9- 101/2 gandas, that they have served upon him the requisite notice to quit and as the defendant has not vacated the land on service of notice this suit has been brought. The defendant maintains that he is a permanent rayiat on the land and that there has been no proper service of notice upon him and that he is protected under Section 182, Ben. Ten. Act, and therefore is not liable to be ejected. In the course of the proceedings it appears that one of the plaintiffs entered into an arrangement with the defendants and accordingly he was made a pro forma defendant. So that the present plaintiff is only entitled to half share of the disputed holding and accordingly he has obtained a decree for joint possession with the pro forma defendant who was originally plaintiff 1, on payment of Rs. 2500 to the defendant by way of compensation for certain structures which were erected on the land to the knowledge of the plaintiff. The points raised in this appeal are that the notice under Section 106 was illegal, that the Bengal Tenancy Act applies and not the Transfer of Property Act and the defendant is protected under Section 182, Ben. Ten. Act, and thirdly that the tenancy was a permanent one and that the plaintiff is not entitled to a decree for ejectment.
2. As regards the notice, the contention is that a portion of the tenancy has been omitted and extra land has been included and therefore the notice was not a valid notice. It is admitted that if a portion of the tenancy is omitted in the notice, the notice would not be a valid notice. But the Appellate Court appears to have found that the defendant has not proved that a portion of the tenancy has been omitted. It is clear however from the admissions made on the plaintiff's side that there can be no doubt that in the description of the land in the Schedule 11 cottas comprising a jama of Rs. 2-l-101/2 originally belonging to one Bahar has been omitted from the description of the land in the notice. The tenure consisted of 8 jamas which were amalgamated in 1936. One of these jamas was this jama of 11 cottas at a rental of Rupees 2-1-101/2. A small jama of 11/2 cottas purchased from the defendant by Jahuran has been included by mistake in the notice. The Courts below have held that this omission of Bahar's jama and inclusion of Jahuran's jama are merely an inaccurate description of the land and that inasmuch as the land is described in general terms as the jama of Rs. 18-9-10i gandas comprising 4 bighas in area in the main portion of the notice, the fact that in the detailed description of the lands in eluded these mistakes have been made does not invalidate the notice. The object of the notice was clearly to inform the defendant of the land from which the plaintiff intended to eject him on notice under Section 106 and if (as appears to be the case) the notice made it quite clear to him that the plaintiff intended to take possession of the whole of the jama of Rs. 18-9-101/2 gandas, there can be no doubt that the notice Was sufficient. If any authority is required for this view, it is to be found in Harihar banerjee v. Ramsashi Roy (1918) 5 A.I.R. P.C. 102 and Shama Churn Mitter v. Wooma Churn (1898) 25 Cal. 36. We think accordingly that the Courts below were right in holding that the notice in this case was a valid notice.
3. The next point urged is that the Bengal Tenancy Act applies in this case and that the Courts below were wrong in applying the Transfer of Property Act to the facts and circumstances of this case. On this point, however, there is a definite finding of facts by the Appellate Court. The learned Additional Subordinate Judge states:
Disputed land is admittedly situated in hat Chandina of Raiganj in mouzah Jetmalpur. It is admitted by defendant in his written statement ' that it is Chandina bazar land as shown by the dakhilas Ex. A series filed by him, and that the tenancies that were created of Chandina lands were for carrying on business and not for agricultural purposes. The Chandina hat come into existence about 100 years ago as admitted by plaintiff's witness 1.
4. Again the learned Judge says:
As a matter of fact the disputed land is not agricultural land and none of the sheds on it is used in connexion with agriculture to any extent. So the incident of the disputed holding is governed by Transfer of Property Act and not by Bengal Tenancy Act. Section 182, Ben. Ten. Act, deals with homestead lands of raiyats and under-raiyats. Defendant is admittedly a merchant residing in Dinajpur Town and having many places of business in Dinajpur District where he goes occasionally. He does not venture to depose that he has homestead on the disputed land where he resides for any purpose other than business purpose. His Officer Dulichand, D.W. 6, admits that he lives there with his family for business purpose.
5. It is clear therefore on these findings that it is the Transfer of Property Act that applies and not the Bengal Tenancy Act. It is argued for the appellant that inasmuch as the origin of these eight jamas has not been traced and inasmuch as mere amalgamation does not alter the character of the holdings, the holdings must be regarded as agricultural holdings. But in the circumstances of this case, the onus was clearly on the defendant to show that these holdings were agricultural holdings so as to bring them under the provisions of the Bengal Tenancy Act and it is equally clear that he has failed to do so. It was for him to show that in their origin these holdings were agricultural holdings. He has not filed the title deeds or any documents that there may be which would indicate the character of the holdings, and the suggestion of the Courts below is that he has not filed them because if they were filed they would not support his case. It is clear therefore that the Bengal Tenancy Act does not apply in this case and therefore it is not necessary to discuss the provisions of Section 182, Ben. Ten. Act, with reference to the case. The third point raised for the appellant is that in any case the circumstances show that the tenancy was a permanent tenancy. In support of this the following facts are propounded : 1. That the origin was unknown; 2. Without alteration of the conditions of the tenancy there was one transfer; 3. That pucca structures were erected on the land with the landlord's consent and knowledge, express or implied; 4. That there were business and residential premises on the land; 5. That although the value of the land had increased considerably the rent had remained very low; and 6. That there had been no variation throughout of the rental of the holding. It is suggested that these circumstances are sufficient to show that this was a permanent tenancy. Reference has been made to cases in Manmotha Nath v. Rajeswar Rai : AIR1928Cal315 , J. Winterscale v. Sarat Chandra Banerjeej (1904) 8 C.W.N. 155, Bireswar Mookerjee v. Sm. Troilokhya Bassi (1926) 96 I.C. 315 and Debendra Nath v. Pashupati Nath : AIR1932Cal198 . None of these cases appears to be on all fours with the present case and in each of them the circumstances in favour of holding that the tenancy was a permanent one were stronger than those in the present case. In Debendra Nath v. Pashupati Nath : AIR1932Cal198 the tenancy, the origin of which was unknown, dated back to some-time before 1874. The land was used for residential purposes from before that date. The rent paid for the tenancy was uniform throughout and rent receipts were filed showing its uniformity. It was held that the tenancy having originated before the passing of the Transfer of Property Act, Section 106 of that Act had no application. This case is clearly distinguishable from the present case inasmuch as in that case from 1874, it was proved the rent had remained the same as the rent stated in the kobala of 1874 down to the time of the suit. In Moharam Chaprasi v. Telamuddin khanj (1912) 16 C.W.N. 567 it was established; that the original tenant and his successor-had been in occupation of the land for over 60 years; that the rent had never been varied; that the tenancy had not been treated by the landlord as heritable and that the land was let out for residential purposes. This case is also distinguishable from the present case, for it was proved in that case that rent had never been varied for over 60 years and the other circumstances also distinguish it from the present case.
6. In Bireswar Mookerjee v. Sm. Troilokhya Dassi (1926) 96 I.C. 315 it was proved that the land had come down to the defendant by a series of successions, that the rent had not been changed for at least 65 years, that the land had been let out for dwelling purposes-and was situated within the Howrah Minicipality and that the rent had remained unchanged though the value of the land had increased abnormally. In the present case, as regards the value of the land, no doubt there is evidence that for the holding of Bahar which comprised 11 eottas Rs. 4000 had been paid and in spite of that the rent remained Rs. 2.1.10i. But it is not clear that this Rs. 4000 was paid mainly on account of the value of the land. Bahar had a business on the land and we do not know how much of this Rs. 4000 was on account of the structures on the land and how much on account of the goodwill of the business and how much should be allotted to the value of the land. Moreover, there is no evidence as to the original value of the land. For the last 100 years it has formed a portion of the Chandina hat and although Rs. 2-1-104 appears to be the rental of this holding we do not know what is the value of the land or whether it very largely increased during the occupation of the defendant and his father who purchased the holding. In the present case the land consists of eight jamas which were amalgamated in 1936 and it is only in the case of this jama of Bahar that it has been proved by documentary evidence that the rent has remained unchanged for about 17 years at the time when the jama was acquired.
7. As regards the pucca structures on the land the evidence is that the defendant erected some valuable structures on the land including a pucca wall and a pucca building, and this was done at the connivance or with the consent of the plaintiff. This however would not in itself be a sufficient ground for holding that the tenancy was a permanent tenancy. In Manmotha nath v. Rajeswar Rai : AIR1928Cal315 it was held that'
where four holdings, governed by the Transfer of Property Act, were amalgamated into a single holding and an unaltered rent has been paid for 57 years, there has been one transfer of the amalgamated holding within these 57 years and there has existed a pucca building on a small portion of the holding for a long time, in a suit for ejectment, the above circumstances by themselves are not sufficient to raise the inference of permanency.
8. No doubt, it is a circumstance strongly in favour of the defendant that the landlord made no objection to the erection of the pucca buildings - the argument being, of course, that if the tenancy had not been a permanent tenancy, he would in the ordinary course have objected to the pucca structures being raised on the land. The Court below has found that the value of the structures erected amounted to approximately Rs. 5000, although the defendant claims that he has spent about Rs. 35,000 in erecting them. But in all the circumstances, we are not prepared to differ from the finding that these circumstances are not sufficient to establish the permanency of the tenure. As regards the question of compensation, this is the subject-matter of an appeal on the part of the plaintiff and we propose to deal with that in that appeal. In view of the finding on the points raised in this appeal, this appeal is dismissed. No order is made as to costs in this appeal.
9. Appeal No. 1430 - This appeal arises out of the same suit for ejectment and is directed against the order of the learned Additional Subordinate Judge that Rs. 2500 would be payable by the plaintiff within two months of the date of the order, thus modifying the direction of the trial Court that the plaintiff would get joint possession of the tenure only on payment of Rs. 2500 by way of compensation, it being clearly understood that the plaintiff would not be competent to put the decree into execution unless the sum of Rs. 2500 was paid to the defendant. In this appeal it is urged on behalf of the plaintiff-appellant that the Courts below having found that the defendant was a ticca tenant who was liable to be ejected erred in law in allowing him compensation for the structures raised on the land and that the finding regarding the value of the structures is based on surmise and not on any legal evidence and that in any view of the case the Court of Appeal below had no jurisdiction to fix the time limit of two months within which the compensation money was to be paid. Amongst the grounds of appeal, no reference has been made to the fact although the original suit was one for ejectment, one of the plaintiffs having come to some arrangement with the defendant, the remaining plaintiff was only entitled to 8 annas share of the holding and therefore the decree as passed was not for ejectment but for joint possession of the 8 annas share. By the withdrawal of one of the plaintiffs, this suit has become really a suit for possession of half share and under the decree the plaintiff is entitled to joint possession of half share along with the pro forma defendant. The plaintiff, through his advocate, has disclaimed, in this appeal, any title to the structures existing on the land and it appears to us that the plaintiff will not merely by virtue of this decree be entitled to occupy half of the house on the land. It may be that there is sufficient land unoccupied by the structures for the plaintiff to obtain his half share without interfering with the structures and in that case the defendant would not be entitled to any compensation on account of the buildings. But it seems to us that unless the parties come to some arrangement between themselves, the best solution of the difficulty will be to have the holding partitioned and should any of the structures erected on the holding fall to the share of the plaintiff, the question of compensation for the structures will then arise.
10. In these circumstances, we think that the order as regards the payment of compensation must be set aside leaving the matter of compensation as regards the buildings (to which the plaintiff disclaims any title) to be decided in a subsequent partition proceeding or by an arrangement between the parties. This appeal is there, fore allowed and the order for payment of compensation is set aside. The appellant will be entitled to half his costs in this appeal.