Judgement

S. R. DAS J. - This is an appeal by the plaintiff in an ejectment suit. His case was that defendant 1 Pratul Chandra Ghose was a Ticca tenant of premises Nos. 2 and 3, Watkin s Lane, Howrah, comprising an area of 1 Bigha 19 Cottahs of land on a rent of Rs. 76 per annum under the landlords Kumar Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, pro forma defendanh 2 and 3, that the plaintiff took a Mourashi Mokarari lease from these landlords on 23-9-1937 and thereby became the immediate landlord of the said defendant and that the tenancy was determined by a notice to quit dated 7-10-1937. The trial Court amongst other things,. found as a fact that the tenancy of the defendant Pratul Chandra Ghose was permanent, heritable and transferable and was not liable to be determined by notice. The plaintiff preferred an appeal to the High Court but the High Court dismissed that appeal holding amongst other things, that the finding of the trial Court as to the nature of the tenancy was correct. The plaintiff has now come up on appeal before us after getting a certificate from the High Court that it is a fit case for appeal to this Court.

2. Relying on the decision of the Privy Council in Dhanna Mal v. Moti Sagar, A. I. R. 1927 P. C. 102 (A), Shri N. C. Chatterjee appearing on behalf of the plaintiff-appellant contends that the present appeal is not concluded by the concurrent finding of the Courts below that the tenancy was permanent because that question was one of the proper inference in law to be deduced from the facts as found by the Courts below. The learned counsel has, therefore, taken us through the evidence, mostly documentary as to the nature of the tenancy. The earliest document referred to is Ex. P/11, being a conveyance executed in 1226 B.S. :1819-1820 by Sheikh Manik and another infavour of Mrs. Cynthia Mills Junior. How the vendors had acquired their title is not known. By that deed of sale the vendors, for a money consideration, conveyed their interest in the lands described as Jamai lands to the purchaser who, on payment of rent of Rs. 4-8-0 per kist, was to "go on possessing and enjoying the same with great felicity down to your sons and grandsons etc., in succession by constructing houses and structures . Mrs. Cynthia Mills died some time before October 1855 and her son John Henry Mills who had succeeded her sold the premises to one Mrs. Sabina Love by a conveyance Ex. P/10 dated 29-10-1855. It appears from that deed that by that time a tank with masonry steps had been excavated on the lands which were described as a plot of rent-paying garden land. The consideration for the sale was Rs. 1,000. The following provisions of the sale deed are of importance:

"From this date being entitled to make gift and sale of the said property, you do bring into your own possession the said lands etc., and on paying annually to the Maliks Zemindars Rs. 4-8-0 (Rupees four and annas eight) in Siccas coins as rent and on getting your name mutated in place of mine and obtaining Dakhilas in your own name, you do go on possessing and enjoying the same with great felicity down to your sons and grandsons etc., in succession."

By a conveyance Ex. P/9, dated 10-10-1856, Mrs. Sabina Love transferred the premises to one Francis Horatio Dobson. The premises were there described as "garden land held under Mourashi Patta" which Patta has since been "held to be a spurious document in a subsequent litigation. It appears from this document that Mrs. Cynthia Mills had excavated a tank and constructed a pucca ghat and laid out a garden and that on her death her son and heir John Henry Mills came into possession of the land and that he had sold the premises to Mrs. Sabina Love and that after her purchase Mr. Sabina Love had enclosed the said land and had manufactured bricks with the earth of the land she purchased. The consideration for this conveyance was Rs. 1,200. It provided its follows :

"From to-day you become the owner of the said lands with powe