1. This is an appeal by the plaintiff in a suit for declaration in regard to the lands in suit, comprised in a tenancy held by defendant 1; that the defendants have no right to cut down trees, to make excavations, to build pucca structures, to establish mills, or to use the lands in suit in any other way than as a garden on the footing that defendant 1 was an ordinary occupancy raiyat. The plaintiff prayed for a permanent injunction and for damages for trees cut and appropriated by the defendants. Defendant 1, the contesting defendant in the suit, set up a permanent mourashi mokarari title to the lands in suit, and resisted the claim of the plaintiff on that basis. An issue was raised on the point whether the defendant had a permanent mokarari mourashi and transferable right in the land in suit,' The question thus raised has been decided by the Courts below in favour of the defendants, and the plaintiff has appealed to this Court.
2. On the findings arrived at by the Court of appeal below, the tenancy to which the lands in suit appertained, was not created for the purpose of agriculture and horticulture; the lands described as 'began' have all along been used as busti lands, and various tenants have been settled thereon by defendant 1 and his predecessors for the purpose of dwelling. The learned Ju3ge in the Court below has held that, the rent payable in respect of the tenancy has remained unchanged all along since its creation, beyond the memory of living man, although the value of the lands appertaining to the tenancy has increased abnormally; that excavations have been made in the lands before by tenants and sub-tenants without the permission of the landlord; that trees have bean cut and appropriated before; that there were bustees almost on all sides of the lands; and that there has been at least one transfer and several successions. On these facts found by him, the learned Judge has come to the conclusion that the defendant had succeeded in showing that the tenancy of defendant 1 was a permanent one.
3. It is wall settled that the question whether a tenancy is permanent or precarious, is a legal inference from facts, and is not itself a question of fact. On the evidence before the Court, the Court 1934 C/37 & 38 below has drawn the inference that the tenancy in the case before us is permanent, regard being had to the findings of fact arrived at by that Court, to which reference has bean made above. On those findings we are unable to hold that the inference that the tenancy in this case is permanent, is erroneous or un-supportab!e. The learned advocate for the plaintiff-appellant contended before us, that an inference of permanency could not be drawn from the facts found by the Court below, unless the tenancy was for residential purpose in the sense that it was for the habitation of the tenant himself. As has bean mentioned already, the learned Judge in the Court of appeal below has found as a fact that the lands comprised in the tenancy have all along been used for dwelling purpose. The Court below has observed that so far as permanant structures were concerned the evidence in the case went in favour of the plaintiff; and that the existence of permanent structure was not a sine qua non in the matter of determining whether a tenancy was permanent or precarious. In our judgment the view thus expressed by the Court below is not erroneous: once it is found that a particular tenancy is for dwelling purpose it is immaterial whether permanent structures existed on the same or not.
4. The existence of permanent structures cannot be taken to be the determining factor in every case, nor can it be said, as it has been contended before us, that the lands appertaining to a tenancy for a dwelling purpose must be used for the purpose of habitation of the tenant himself. The purpose of the tenancy has to be determined; and if that purpose is found to be residential purpose, it cannot be laid down as a proposition of law that the rights of a permanent tenant, in respect of a tenancy created for residential purpose, might be curtailed, the landlord having the power to insist on the tenant using the lands for the purpose of his own habitation.
5. The decisions of this Court in some cases to Which our attention was drawn in this connexion are: Monmatha Nath v. Rojeswar Roy : AIR1928Cal315 , Jagabandhu Saha v. Magnamoyi Dasi AIR 1918 Cal 961 and Mohoram Shekh v. Tellamuddin Khan (1912) 13 IC 606, 15 C. L. J. 220, do not in any way support the extreme contention advanced in support of this appeal, and we have not been able to find anything contained in these decisions which enable me to give effect to the same. The residential purpose is a very important factor in determining the character of a tenancy whether it was permanent or precarious; but the residence cannot be confined to the case of the tenant himself, so as to exclude the idea of a sub-lease by the tenant, who had a permanent interest in the lands comprised in the tenancy, and of allowing others to use the lands, sublet to them for residential purpose, the original purpose of the tenancy. We are in agreement with the Court of appeal below in holding that the inference of permanency could be drawn in the case of the tenancy in suit, in spite of the fact that various tenants had been settled on the lands comprised in the tenancy, which was for dwelling purpose, by defendant 1, and his predecessor-in-title, for dwelling purpose. In our judgment, the decision arrived at by the Court of appeal below, in affirmance of that of the trial Court, is right, and must be confirmed. The appeal is dismissed with costs.