1. In this suit for ejectment, the defendant set up two defences; first, that the notice served upon him to quit was not sufficient and, secondly, that he has a permanent maurasi right to the tanks which were the subject-matter of this litigation.
2. The Munsif dismissed the suit upholding both the contentions of the defendant; but the Subordinate Judge on appeal has reversed the Munsif's decision, and the defendant therefore, appeals to this Court.
3. The sufficiency of the notice given to the defendant was challenged on the ground that six months according to the British Calendar did not intervene between the date of the notice and the end of the year when he was required to give up possession and the question that arises is whether the six months should be calculated according to the Bengalee or according to the British Calendar. The tenancy commenced before the Transfer of Property Act came into operation and Section 106 of that Act does not apply and we, therefore, have to decide the case according to the principles of, equity, justice and good conscience. It seems to us that where the tenancy is Where a tenancy is regulated by the Bengalee year, it would be inequitable to the parties to compel them to take notice of the British Calendar as that by which a notice to quit should be regulated, Six months' notice according to the Bengalee Calendar would be sufficient
4. With regard to the merits, the Subordinate Judge has found that the defendant has no permanent interest in the subject-matter of this litigation and the manner in which he has expressed that finding has given rise to some discussion as to what his real meaning was. What the Subordinate Judge says is this: 'That the mere facts that the tenant has been in possession for 50 or 60 years and that he and his ancestors have been recognised by the landlord as tenants after a transfer or succession and no attempt was made to eject or enhance the rent of the tenant, cannot justify a legal presumption of the permanency of the holding.'
5. On the part of the appellant, it is urged that what the Subordinate Judge moans was, that on the facts mentioned to him it was not open to him in law to draw the inference that the holding was a permanent one. On the side of the respondent, on the other hand, the meaning imputed to this passage is that on a consideration of the facts mentioned, the Subordinate Judge refused to draw the inference that the holding was a permanent one.
6. Now, the circumstances which the Subordinate Judge has mentioned are certainly evidence from which it was open to him to draw the inference that the holding was of a permanent character and in his judgment, he has not discussed the probative force of these facts and we are, therefore, of opinion that what the Subordinate Judge meant was that it was not open to him to draw the inference that the holding was a permanent one. If this is what he means, he was certainly wrong. The long possession of the tenant, succession and transfer may give rise to the inference that the holding was permanent and this was recognised long ago in the case of Nidhi Krishna Bose v. Nistarini Dassi 21 W.R. 386 : 13 B.L.R. 416 in which it was laid down that the frequent transfer of an interest in a tank without any change in the terms of the holding, or in the amount of rent paid, extending over more than 30 years was held to prove that the interest was a permanent and transferable one.
7. We would further point out that the Subordinate Judge has, not taken into consideration another strong piece of evidence in favour of the defendant, namely, that the sale certificate which is the origin of defendant's title expressly declares that the holding is a maurasi jama. He has, indeed, directed his attention to this sale certificate but only with the object of pointing out that as the landlord was not shown to be a party to the case in the execution of the decree in which the sale was held, the landlord cannot be bound by that description, but even if the landlord were not a party to that suit, the recognition of the permanency of the holding would be a relevant fact as having taken place in the transaction by which the transfer was effected, and its value is all the greater from the fact that the sale took place more than 50 years ago and during the long period that has since elapsed, no attempt has apparently been made by the landlord to challenge the accuracy of the description of the holding given in the sale certificate.
8. We are, therefore, of opinion that the Subordinate Judge has not considered the evidence that exists on the record in favour of the case set up by the defendant. The decree of the lower Appellate Court is accordingly set aside and the case must be remanded in order that he may try the appeal with reference to the observations made above.
9. The costs of this appeal will abide the result.