1. This is plaintiff's appeal and arises out of a suit in ejectment. Plaintiff's case is that the defendant holds under him the disputed land as a thika tenant at an annual rental of Rs 5-15-0 and that notice to quit was duly served upon him asking the defendant to vacate by the end of the Bengali year 1330 and that, as the defendant had not vacated the disputed land, the present suit was instituted. The defence of the defendant is that the land in suit is the land which he holds in permanent tenancy and at a fixed rental. He also raised the contention with regard to the validity and sufficiency of the notice. The Court of first instance held that the tenancy of the defendant was a precarious tenancy and as the notice was a six months' notice expiring by the end of the tenancy it was quite sufficient. The Munsif, accordingly, granted a decree to the plaintiff for khas possession of the land described in the plaint. An appeal was taken by the defendant to the Court of the Subordinate Judge of Howrah who reversed the decision of the Munsif and dismissed the plaintiff's suit.
2. Against this decision a second appeal has been taken to this Court and it has been argued by Mr. Chakravarti who has appeared for the appellant that the findings of fact arrived at by the lower appellate Court do not give rise to the legal inference that the tenancy of the defendant was a permanent tenancy. It is necessary, therefore, to examine the findings of the lower appellate Court. They may be summed up as follows : The defendant or his predecessor-in-title has been in possession of the disputed land for more than 80 years. They have been paying uniform rent at the rate of Rs. 5-15-0 per annum. The tenancy in question has devolved from heir to heir. There had been a hut in the land and there is also an existence of a tank on the land. The superior interest had passed by several transfers to the present plaintiff. There is no evidence that there was ever any pucca building or structure erected on the land, though the lands are situate within the Howrah Municipality and although the value of the land had been increasing for many years past, there never was any attempt made before by the landlord to increase the rent as to eject the tenant. 'The land' says the Subordinate Judge:
is now unoccupied for several years past owing no doubt, to the domestic circumstances under which defendant came to inherit it, but it is not questioned that Padmalochan lived on it by raising chapra shads and by digging a tank.
3. The tank, according to the finding of the Subordinate Judge was excavated by Padmalochan, the original tenant ON these findings, the lower appellate Court has raised the inference that the tenancy was a permanent one. It has been argued on the authority of the case of Abdul Hakim Khan v. Elahi Baksha : AIR1925Cal309 that the facts found did not give rise to the legal inference of permanency of the tenancy. It is said that the existence of pucca structure is one of the essential conditions which is requisite-to establish a permanent tenancy. As I read the decision in Abdul Hakim v Elahi Baksha : AIR1925Cal309 , I do not think that the learned Judges intended to lay down that the existence of pucca structure was essential in all cases in order to establish a permanent tenancy. It appears further in this case that there has been long possession at a uniform rent in a locality where, as has been pointed out by the lower appellate Court, the value of lands have enormously increased. That is an element which should be taken into consideration along with other facts in considering whether the rent was not increased or no attempt at ejectment was made because the landlord knew that the1 nature of the tenancy was permanent. The facts of this ease fall within the purview of the recent decision of this Court in the case of Bireswar Mookherji v. Troilokhya Dasi  30 C.W.N. 709. It is to be noticed that, before the passing of the Transfer of property Act, an ordinary tenancy was not heritable and as admittedly there have been several successions in the present case, the inference is legitimate that the tenancy was a permanent tenancy. If the land was held on a thika tenancy there is every reason to suppose that when the value of the land increased abnormally the same rent might not have been continued for a large number of years. In cases of this description no inflexible rule can be laid down and each case must depend on its own facts. There is a further element in this case which requires consideration.
4. A will was executed by Padmalochan in which he described this land as a mokarrari mourasi one with a rental of Rs. 5-15-0 per annum. This will was mentioned in the written statement of the defendant and it is said that there is no evidence on behalf of the plaintiff to show that he was not cognizant of the statements made in this will. It is true that the defendant has not established that the statement in the will was brought home to the knowledge of the landlord. But some inference adverse to the landlord can be made from the circumstance that although the will was mentioned in the written statement and it was made an exhibit in the case and the probate of will was produced in the case and yet the plaintiff did not say in his deposition in Court that he was not cognizant of the contents of the will of which probate had been taken. There is this fact that after the death of Padmalochan when the will became operative, the plaintiff had been taking rent from the legatee who happened to be his son. It is said that no inference should be drawn from this circumstance for if this will had not been executed, the land in question would have devolved under the Hindu law on his son and there is some force in this contention. The fact remains, however, that the son got this property under the will and the statement in the will may be regarded as one made in course of a transaction by which this property was bequeathed to the legatee under the will and consequently the statement made in the will may be taken as evidence under Section 13, Evidence Act. In the circumstances, we think that the lower appellate Court was right in drawing the conclusion that the tenancy was a permanent tenancy.
5. Mr. Chakravarti has, however, streneously contended that there is a conflict between the case Abdul Hakim v. Elahi Baksha : AIR1925Cal309 and the case Bireswas Mookerji v. Sm. Troilokhya Dasi  30 C.W.N. 709. I do not think, however, that there is any real conflict for it does not appear from the report of the case of Abdul Hakim v. Ellahi Baksha : AIR1925Cal309 , that this element of increase of the value of the land existed in that case ; it does not appear in that ease that no attempt was made either to object the tenant or to enhance his rent notwithstanding the increased value of land. I do not think, therefore, that we should be justified in referring the case to a Full Bench, Taking all the circumstances of the case into consideration, I think that the decision of the learned Subordinate Judge is right and must be affirmed. The appeal is accordingly dismissed with costs.
6. I agree.