Judgement

Appeal (No. 151 of 1920) from a judgment and decree (December 22, 1916) of the High Court affirming a decree of the District Judge at Ahmedabad, which reversed a decree of the Additional Subordinate Judge at Ahmedabad.

The suit was brought by the appellant to recover possession of certain lands from the respondents as yearly tenants whose interest had been determined by notice. The respondents by their written statement alleged that they were in possession under a permanent lease. The facts appear from the judgment of their Lordships.

The District Judge, reversing the trial Judge, dismissed the suit, holding that a permanent lease existed. An appeal to the High Court was dismissed on the ground that the matter to be decided was not a question of law, and was not properly the subject of a second appeal.

1921. Dec. 2, 5. Upjohn K.C. and E. B. Raikes for the appellants. On its true construction the document of February 22, 1824, created only a tenancy from year to year; it cannot be construed as a

Law Rep. 49 Ind. App. 54 ( 1921- 1922) Bawa Magniram Sitaram V. Kasturbhai Manibhai

330

permanent lease Bilasmoni Dasi v. Sheo Per shad Singh (( 1882) L. R. 91. A. 33.); Toolshi Per shad Singh v. Ram Narain Singh. (( 1885) L. R. 12 I. A. 205,214.) The circumstance that the lease was made by a person with a limited interest is to be considered Shibessouree Debia v. Mothooranath Acharjo. (( 1869) 13 Moo. I. A. 270.) But if the document purported to create a permanent tenancy, it is invalid as beyond the competence of the grantor who was . the shebait Vidya Varuthi Thiriha v. Balusami Ayyar. (( 1921) L. R. 481. A. 302, 327.)

De Gruyther K. C., and Parikh for the respondents. Upon the true construction of the lease it was a permanent lease Upendra Krishna Mandal v. Ismail Khan Mahomed (( 1904) L. R. 311. A. 144.); Nabukumari Debi v. Behari Lal Sen. (( 1907) L. R. 34 I. A. 160.) There is no authority that there could be in Bombay in 1824 a yearly tenancy subject to six months notice. Having regard to the long interval of time which has elapsed since the grant of the lease it is to be presumed that it was granted for legal necessity Murugesam Pillai v. Manickavasaka Pandara (( 1917) L. R. 44 I. A. 98.); Chockalingam Pillai v. Mayandi Chettiar. (I. L. R. 19 M. 485.)

[Lord Buckmaster referred to Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri. (( 1916) L.

R. 43 I. A. 249.)]

Further, the evidence did not establish that the grantor of 1824 was the shebait. Lastly, there was no right to a second appeal; there were no substantial questions of law.

E. B. Raikes replied.

Dec. 5. The judgment of their Lordships was delivered by

LORD BUCKMASTER. Their Lordships have come to a clear opinion upon the merits of this appeal, and as it relates to the possession of land, they will not reserve the expression of the advice that they will tender to His Majesty.

The appellant is seeking to obtain possession of a piece of land some 5 ½ acres in extent, that is situated near the Delhi Gate of the city of Ahmedabad. That the respondents are in possession by themselves or their tenants is not in dispute ; it is indeed the foundation of the appellants claim, for the proceedings out of which this appeal has arisen were instituted by the appellant as plaintiff claiming to recover possession of the property upon the ground that the only right of the respondents is as tenants from year to year, a tenancy which had been duly determined by notice, or in the alternative, that the conduct of the respondents rendered it unnecessary that the appellant should take any further steps to secure its determination.

The land in question was granted on June 17, 1756, to one Sultansingh Maharajji for the deity of Shri Ranchhodji; in other words, the grant was a grant to a named person for a defined religious purpose.

On February 22, 1824, this land was dealt with by way of lease ; the document recording the transaction takes the form of a recognition by the tenant of the