1. This is an appeal on behalf of the defendants in an action in ejectment. The case for the plaintiffs respodents is that the defendants who were tenants-at-will were in occupation of the disputed land, that their tenancy has been terminate by a proper notice to quit and that they nevertheless refused to vacate the land. The defendants resisted the claim Substantially on two grounds, namely, first, that, they held under a permanent lease granted to their predecessors on the 23rd May 1848; and, secondly, that if the lease was not, established, there were circumstances from which the Court could draw the inference that the tenancy in its inception was of a permanent character. The Court of first instance found in favour of the genuineness of the lease and dismissed the suit. Upon appeal, the Subordinate Jude has declined to give the defendants the benefit of the lease for two reasons. He holds, first, that it is doubtful whether the lease is genuine, and, secondly, that if it is genuine, it is not proved to be binding up in the landlords inasmuch as, on the face of it, it appears to have been executed by a person whose authority has not been established. The Subordinate Judge then proceeds to hold that, although the defendants have proved that they have been in occupation of this land for many years at a uniform rate of rent and although the property has descended from the original tenant to his daughter, these circumstances are not sufficient, to justify an inference that the tenancy in its inception was of permanent character, because the defendants have not proved that they raised substantial structures on the land. In this view, the Subordinate Judge has reversed the decision of the original Court and made a decree, for ejectment.
2. In support of the appeal, it has been contended that the decision of the Subordinate Judge is erroneous and on both the branches of the case reference has been made to a number of judicial decisions bearing upon the questions discussed. In our opinion, there is no room for serious controversy that the decision of the Subordinate Judge cannot be supported.
3. In so far as the first branch of the case is concerned, as we have already stated, the Subordinate Judge has not explicitly found that the lease is not genuine. He suspects its genuineness and does not come to any specific finding; but he held that it was not binding upon the landlords, because the authority of the executant was not proved. This view of the Subordinate Judge is clearly erroneous. On the authority of the decision in Ubilock Rat v. Dallied Rai 3 C. 557 and Uggrakant Chowdhuri v. Harro Chunder Shickdar 6 C. 209 the Subordinate Judge has held that the provisions of Section 90 of the Indian Evidence Act merely establish that the document was executed by the persons whose signatures it purports to bear; bat that cannot and does not prove the authority of the executants to bind the landlord. This view is unquestionably sound. But it must be remembered that the landlords did not suggest in either of the Courts below that the leasa was not binding upon them, because it had been executed on behalf of their predecessors by a person who had no authority to bind them in their transaction. The question was not raised for very obvious reasons. No doubt, the lease was originally granted on behalf of the landlords who were at the time infants; but upon attainment of majority, they ratified the transaction, recognised the predecessor of the defendants as their tenant and for many years accepted rent from him at the rate mentioned in the lease. Under these circumstances, it was not open to them to repudiate the transaction as wholly unauthorised. No question, therefore, arises in this case as to the authority of the executants to bind the landlords. In this view, it would be necessary for us to remand the case to the Subordinate Judge for a specific finding upon the question of the genuineness of the lease. It is needles, however, to adopt this course, because we are of opinion that the appellants are entitled to succeed upon the second branch of the case.
4. In so far as the second branch of the case is concerned, if we assume for a moment that the lease of the 23rd May 1848 has not been proved to be genuine, the position is that the origin of the tenancy is unknown. It has been established that the original tenant Juggernath was in occupation up to the time of his death in 1834. Juggernath was thus in possession for at least 36 years upon payment of a small rent which was never varied in his lifetime. Since his death, his daughter, the second defendant, has been in occupation for at least 20 years up to the commencement of this suit. It has not been suggested of behalf of the landlords that the rent was ever varied during this period when the successor in-interest of the original tenant was in occupation. We have, therefore, four facts firmly established in the case: first, that the original tenant and his successor have been in occupation of the land for over 60 years; secondly, that the rent has never been varied; thirdly, that the tenancy has been treated by the landlord as heritable; and, fourthly, that the land was let out for residential purposes. Upon these facts we are of opinion that the inference is legitimate that the tenancy in its inception was permanent Durga Mohan Das v Rakhal Chandra Roy 5 C.W.N. 801; Tarukpodo v. Shyama Churn 8 C.L.R. 50; Prosuno v. Rattan 3 C. 696 : 1 C.L.R. 577; Govinda Chundra v. Ayinuddin 11 C.L.R. 281; Juhooree Lall v. Dear 23 W.R. 399; Nubodoorga v. Dwarka Nath 24 W.R. 301; Dunne v. Nobo Krishna Mookerjee 17 C. 144; Caspersz v. Kedar Nath Sarbadhikari 5 C.W.N. 858; Nabu Mondul v. Cholim 28 C. 896; Beni Madhab v. Jai Krishna 7 B.L.R. 152 : 12 W.R. 495.
5. The learned Vakil for the respondent has, however, contended that the question of the nature of the tenancy is one of fact and that it is not open to us in second appeal to interfere with the conclusion of the Subordinate Judge upon this part of the case. In support of this view, he has placed reliance upon the cases of Dulhin Golab Koer v. Balla Kurmi 25 C. 744 : 2 C.W.N. 580; Gungadhar Shikdar v. Ayinuddin Shah Biswas 8 C. 960 and Durga Mohan Das v. Rakhal Chandra Roy 5 C.W.N. 801. It may be conceded that there are possibly expressions in some of these judgments which lend some apparent support to the contention of the respondent. But it is fairly clear from the decision of the Judicial Committee in the case of Ram Gopal v. Shams Khaton 20 C. 93 : 19 I.A. 228 and Nabakumari Debi v. Behari Lal Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 that the question is really a mixed question of fact and law. No doubt, the question is one of fact to this extent that we are not in a position to interfere with the findings of the Subordinate Judge as to the length of the tenancy, the fixity of rent, and other similar matters. But, in so far as the Court is invited to draw an inference as to the nature of the tenancy from the facts found by the Subordinate Judge, the question is undoubtedly one of law. William Grant v. Mrs. Robinson 11 C.W.N. 242 : 5 C.L.J. 178. Much reliance was, however, placed by the learned Vakil for the respondent upon the decision in Smith v. General Motor Calcutta Co. (1911) A.C. 188 : 80 L.J.K.B. 839 : 9 S.E.C. (N.S.) 163. That case is clearly distinguishable. There the question arose whether the relation between the parties to the suit was that of master and servant or of bailor and bailee. The House of Lords, in affirmance of the decision of the Court below, held that the question was one of fact aud not of law. It was observed that it was not argued by the parties that, upon the admitted facts, as a matter of law, the relation of the parties was that of master and servant or bailor and bailee. One of the parties relied upon certain circumstances which unquestionably support the view that the relation between the parties was that of bailor and baillee, while his opponent relied upon other circumstances which supported the position that the relation between the parties was that of master and servant. As Lord Atkinson put it, there was thus a conflict of evidence and the Court was called upon to discover upon the evidence the true relation between the parties. Here the question is whether, upon the facts which have been found by the Court below, it can legitimately be held that the tenancy in its inception was of a permanent character. There can be no doubt, that in view of the decision of this Court in the cases of Dinendra Narain Roy v. Tituram Mukerjee 30 C. 801; Winterscale v. Sarat Chandra Banerjee 8 C.W.N. 155 and of the Judicial Committee in the cases of Gopal Lall v. Tilluck Chand 10 M.I.A. 183 at p. 191 : 3 W. 11. (P.C.) 1; Dhunpat Singh v. Gooman Singh 11 M.I.A. 433 : 9 W.R. (P.C.) 3; Bam Chunder Dutt v. Jughesh Chander Dutt 12 B.L.R. 229 : 19 W.R. 353; Satta Saran Gohsal v. Mohesh Chandra Mitter 12 M.I.A. 263 : 2 B.L.R. (P.C.) 23 :11 W.R. (P.C.) 10; Upendra Krishna Mandul v. Ismail Khan Mahomed 32 C. 41 : 8 C.W.N. 889; Nil Ratan Mandal v. Ismail Khan Mahomed 32 C. 51 : 8 C.W.N. 895 and Nabakumari Debi v. Behari Lall Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 the inference is irresistible that the tenancy in its inception was of a permanent character. The Subordinate Judge himself, indeed, would have arrived at the same conclusion but for the error into which he fell when he assumed that to bring a case within this rule, it was essential to establish that there were permanent structures on the land. But the decision of the Judicial Committee in Nabakumari Debi v. Behari Lal Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 shows conclusively that although the presence of permanent structures on the land may be a very important factor, it is by no means essential to establish that the tenancy in its inception was of a permanent character. The decree of the Subordinate Judge cannot consequently be supported.
6. The result is that the appeal is allowed, the decree of the Subordinate Judge set aside, and that of the Court of first instance restored with costs in all the Courts.