Nasim Ali, J.
1. These two appeals arise out of two suits for declaration of the plaintiff's title to certain lands and for consequential reliefs. Second Appeal No. 2086 arises out of Suit No. 77 of 1930 and relates to plot ka and portion marked A of Plot kha of the plaint. Second Appeal No. 2087 arises out of Suit No. 59 of 1931 and relates to the remaining portion of plot kha that is, the portions marked B. C. in the Commissioner's map. The plaintiff's case in Suit No. 77 briefly stated is as follows:
2. One Uma Chand Majumdar was the owner of this property. He let out plot ka of the plaint by a Potta in 1304 B.S.? to one Rajballav. In 1306 B.S. he let out plot kha to the same tenant by another potta. The plaintiff purchased Uma Charan's interest in the disputed land from one Chandi Charan Roy who purchased the same from Uma Charan. The plaintiff instituted a suit for ejecting the defendants from the land covered by the potta in 1306 and obtained a decree for possession. The plaintiff alleges that he got symbolical possession of the whole of plot kha mentioned in the schedule but could not get actual possession of the portion marked A in the Commissioner's map. Plaintiff brought another suit for ejectment in respect of the land covered by the potta of 1304 B.S. That suit was dismissed ultimately by this Court on the ground the tenancy created by the said potta was to enure at least for the lifetime of the lessee and the lessee was still alive. Plaintiff brought the present suit after the death of Raj Ballav.
3. On these allegations the plaintiff prays for a declaration of his title to plot ka of the plaint and to plot A of plot kha as shown in the Commissioner's map and for recovery of possession of the same.
4. In Suit No. 59 of 1931 the plaintiffs' case is that the disputed lands of that suit are covered by the previous ejectment decree which he obtained against the defendant and that the defendant who has obtained a decree for possession in a proceeding under Section 9 of the Specific Relief Act has no right to obtain possession in execution of the said decree. His prayer therefore is for perpetual injunction restraining the defendant from getting possession of this property in execution of the said decree.
5. The defences in suit No. 77 are: (1) that the tenancy created by the potta of 1304 is a permanent tenancy and did not terminate with the death of the original lessee; (2) that after the death of the original lessee, a fresh tenancy was created by holding over and the said tenancy was not terminated by valid notice to quit as required by law; (3) that in any view of the case the defendants are protected from eviction under Section 182 of the Bengal Tenancy Act, (4) that the defendants are entitled to claim compensation for the structures which were raised on the disputed land.
6. So far as Suit No. 59 of 1931 is concerned, the substantial defence is that the disputed land in the suit is not covered by the previous ejectment decree. The Courts below have decreed the plaintiff's suit. Hence the present appeals by the defendants.
S.A. No. 2087 of 1932
7. The contention of the learned Advocate for the appellant is that the Courts below are wrong in holding that the disputed land in this case is covered by the previous ejectment decree. It is argued that the plaintiff tinder the ejectment decree is entitled to get only 6 kalis of land and not the entire land mentioned within the boundaries mentioned in the decree. I am unable to accept this contention. It is clear from the decree as well as from the evidence in this case that the plaintiff obtained a decree for possession in the previous suit in respect of the whole land covered by the potta of 1306 B.S. The boundaries given in the decree are specific and definite. Consequently the proper test to apply is the boundary test and not the area test. The Courts below are, therefore, right in decreeing the plaintiff's suit this appeal is therefore dismissed.
S.A. No. 2086 of 1932.
8. The points for determination in this case so far as plot ka is concerned are: (1) whether the lease of 1301 has determined by efflux of time, (2) if so, can the defendants be ejected without payment of compensation for the structures raised by them on the disputed land.
9. As regards the first point the contentions of the learned Advocate for the appellant are three-fold (a) that the incidents of the tenancy created by the lease of 1301 are governed by Section 182 of the Bengal Tenancy Act; (6) that if the incidents are not governed by the Bengal Tenancy Act but by the Transfer of Property Act, the lease has not determined by the death of the lessee as the potta of 1304 B.S. created a lease in perpetuity; (c) that even if the original lease terminated by the death of the lessee, a new tenancy was created by holding over which had not been terminated according to law by a valid notice. These contentions require separate consideration.
10. As regards the first contention, the effect of the findings of the Courts below are these that the lease was for the purposes of residence to enable the original lessee to carry on legal profession in the local Courts; that the lessee was not a raiyat at all; that the defendant who purchased the land could not succeed in proving that he possessed any agricultural jote or that he purchased this land for the purpose of a homestead from which he was to cultivate his jotes, even if he had any. On these findings, I am of opinion that the provisions of Section 182 of the Bengal Tenancy Act cannot be attracted. It has not been found that the defendant is a raiyat or that he is cultivating any land as a raiyat using the disputed land as his homestead. The defendants therefore are not protected by Section 182 of the Bengal Tenancy Act.
11. As regards the second contention, the point for determination is whether the lease of 1301 expired by efflux of time limited by the lease. Now that is the term limited by the lease The lease is in these terms:
You having applied to get settlement of about 6 kalis of land within the following specified boundaries, for the purpose of constructing your basha, I here by fix annual rent for the said 6 kalis of land at Rs. 3 and settle the same with you. You shall enjoy and possess the said land by constructing your basha and residing thereon and regularly paying the rent. To this effect I execute this patta.
12. This lease was construed by this Court in a previous case between the parties to be a grant in favour of the lessee which would enure for the life-time of the lessee and so long as the lessee would regularly pay rent in respect of the premise-see, Ashutosh Lahiri v. Chandi Charan, Mitra : AIR1927Cal179 . The contention of the learned Advocate for the appellant, however, is that the observations made in that case were obiter dicta and that the matter is not res judicata and can be reagitated in this suit. Assuming that this is the correct position in law, I will now proceed to determine whether the potta of 1304 has terminated by the death of the lessee. Under Section 111, Clause (a) of the Transfer of Property Act a lease of immovable property determines by efflux of time limited thereby. No definite period has been mentioned in the lease. The contention of the learned Advocate for the appellant is that if no period is specifically mentioned in a lease it must be a perpetual lease. I am unable to accept this contention. If no period is definitely stated it does not necessarily follow that the lease is a perpetual lease. A lease is a transfer of a right to enjoy for a certain term express or implied or in perpetuity. A lease for life is a lease for a certain period for it terminates with the death of the lessee. If a grant be made to a man for an indefinite period it enures, generally speaking for his lifetime and passes no interest to his heirs unless there are some words showing an intention to grant a hereditary interest. This rule of construction, however, does not apply, if the period for which the grant is made can be definitely ascertained from the other terms of the instrument. See, Baboo Lekhraj Roy v. Kunhya Singh 4 IA 223 at p 225 : 3 C 210 : 3 Sar. 758 : 3 Suther 453 : 1 Ind. Jur. 636 (PC). Though the lessee and the lessee were members of the legal profession, no words of inheritance such as mourashi, kaimi, etc., which are ordinarily used in a permanent lease are to be found in the potta. The potta under discussion does not therefore create a perpetual lease by express words. In the absence of express words importing perpetuity is the lease itself; it is, however, permissible to take into consideration the object of the lease the circumstances under which it was created and the subsequent conduct of the parties to determine whether the grant was intended to be perpetual. See Bitas Moni Dasi v. Raja Sheo Pershad Singh 9 IA 33 : 8 C 664 : 11 CLR 215 : 4 Sar. 325 : 6 Ind Jur. 274 (PC). Such consideration may show that a bemiadi lease is a permanent lease. It is argued by the learned Advocate for the appellant that as the potta shows that the lease was taken for constructing a basha, the intention must have been to create a perpetual tenancy. The lease was taken by a Mukhtear and his object was to build a basha to enable him to carry on the legal profession in the local Court. The learned Judge has rightly observed that the word basha does not carry with it. the idea of a permanent residence. The lessee apparently did not take the land for the purpose of permanently residing there. The object of the lease, therefore, is not inconsistent with the term of the lease being confined to the lifetime of the lessee. This lease was created after the Transfer of Property Act came into operation. Under Section 108, Clause (p) of the Act, in the absence of a contract to the contrary, the lessee cannot, without the consent of the lessor, erect on the property any permanent structure except for agricultural purposes. In view of the purpose mentioned in the lease, the lessee had the right to erect structures of such a kind or of such a value as would not be out of proportion to the intention of the lessor or of the. lessee. The nature of the structures raised by the lessee has been found by the trial Court to be as follows:
3 or 4 corrugated iron-roofed huts, with pucca plinths, one or two of which can boast of a low pucca wall on some sides thereof, another similar two-storeyed hut with pucca (?) stairs, a pucca privy and a pucca wall on one side of the compound.
13. Regard being had to the purpose for which the lease was taken the lessee was within his rights when he erected the structures. The evidence of the lessor (Ex. C) also indicates that his intention was not to assert permanent right when he erected the structure. When the structures were erected, the lessor could not therefore raise any objection in view of the purpose of the lease and the nature of the structures that were constructed. The conduct of the lessor and the lessee therefore in the present case was not inconsistent with the tenancy being only a tenancy for the life-time of the lessee. If the structures alleged to have been erected with the consent of the lessor had been of a kind or of a value out of proportion to the nature of the tenancy being that of a tenancy for the life-time of the lessee, the position might have been different'. The object of the lease, the circumstances under which the lease was given and the conduct of the parties therefore in the present case are not inconsistent with the lease being a lease only for the life-time of the lessee. The learned Advocate for the appellant, however, on the authority of Beni Ram v. Kundan Lal 26 IA 58 : 21 A 496 : 4 CWN 502 : 1 Bom. LR 460 : 7 Sar. 523 (PC), contended that at any rate by the conduct of the lessor in the present case, viz., giving consent to the construction of the structures at the time when they were constructed, the tenancy for life under which the lessee obtained possession of the land had been by an implied contract changed into a perpetual right of occupation. The nature of the structures as stated already are such as a Mukhtar would erect for carrying on his profession during his life-time in a Municipal town. The consent of the lessor therefore cannot enlarge the right as he was bound to give his consent in view of the purpose for which the land was demised.
14. The equitable doctrine of estoppel by acquiescence also cannot be invoked by the defendants in the present case. The lessee made no mistake about his rights. He knew full well that the lease was not a lease in perpetuity. He did not raise the structures on the faith of any mistaken belief. From the act and conduct of the lessee the lessor could not and did not know that the lessee, had made any mistake as to the nature of his right and that he was raising the structures under a mistaken belief that the demise was permanent. The act and conduct of the lessee in the present case was not inconsistent with the lessor's right of re-entry after the death of the lessee. In view of the object of the lease and the nature of the structures raised the lessor cannot be said to have abstained from asserting any right which he ought to have assured when the structures were raised. The question of the lessor encouraging the lessee to spend money by raising costly structures either directly or by abstaining from asserting his right cannot possibly arise in view of the facts and circumstances of the present case. The conduct of the lessor therefore cannot prevent him from evicting the lessee.
15. As regards the third point the Courts below were right in holding that no notice was necessary. It has not been found that the defendants were holding over with the consent of the plaintiff after the determination of the lease by the death of the lessee. The Courts below are, therefore, right in holding that the defendants are not entitled to any notice. As regards plot A of Schedule kha, it has been found by the Courts below that it is covered by the previous ejectment decree. The defendants therefore are now trespassers on the disputed land and the Courts below were right in passing a decree for ejectment.
16. The next point for determination is whether the defendant is entitled to get any compensation for the structures on the land erected by the original lessee and which has been subsequently purchased by him. In the absence of a contract or local usage to the contrary the lessee on the determination of the lease is bound to put the lessor into vacant possession of the property. The lessee may remove at any time during the continuance of the lease all things which he has attached to the earth provided he leaves the property in the state in which he received it: (see Clause (p) and Clause (ft) of Section 103 of the Transfer of Property Act before the amendment in 1929). By the amending Act of 1929 the lessee may even after the determination of the lease remove the structures at any time whilst he is in possession of the property leased but not afterwards. There is no contract in the present case to the contrary. There is also no local usage to the contrary. In this connection the following observations of Peacok, C.J., in the case of In the matter of the Petition of Thakur Chundar Paramanick BLR Sup. Vol. 595 at p 598 : 6 WR 228, are pertinent:
We think it clear that, according to the usages and custom of the country, buildings and other such improvements made on land do not by the mere accident of their attachment to the soil become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the lands to the estate in which it was before the improvement was made or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking the building, or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.
17. In this case the plaintiff does not want to have the structures. Consequently under the common law of this country also the defendant cannot compel the plaintiff to take the building and pay the price thereof. It is therefore clear that under Section 108, Clause (q) the defendant is now bound to put the plaintiff into vacant possession of the property. The defendants cannot also compel the plaintiff to pay the value of the structures under Section 51 of the Transfer of Property Act. In order to attract the operation of the section, it must be shown that the transferee made the improvements believing in good faith that he was absolutely entitled. Assuming that a permanent lessee can appeal to that section (the decisions on this point, however, are not uniform) the facts and circumstances of this case do not show that the lessee in the present case believed in good faith that he had a permanent right in the demised premises. The conduct of the lessee in the case shows that he all along knew well that his right to occupy the land would last only for his life. The defendant therefore can not claim any compensation from the plaintiff for the structures.
18. The result, therefore, is that this appeal is also dismissed.
19. The appellant is to pay one set of costs to the plaintiff-respondents for both the appeals.
20. Leave to appeal under Section 15 of the Letters Patent is refused.