JUDGMENT Maclean, C.J. - This is a suit of a class with which this Court is now fairly familiar, viz. to eject the Defendants, who are husband and wife, from a small piece of land of substantial value, at Kidderpur, a suburb of Calcutta. The plaint is based upon the view that the Defendants are annual tenants of the land under the Plaintiff, they are called tenants-at-will in the plaint, an expression which is perhaps not quite accurate and are liable to be ejected upon notice to quit. The case of the Defendants is that they are permanent tenants and not liable to be ejected. 2. A point has been raised that inasmuch as no notice to quit was served upon the Defendant No. 2, Jamlu Bibi, the wife of Defendant No. 1, who was not made a party to the suit in the first instance, but much later on in the proceedings, as against her at any rate, the action was not sustainable. 3. The Court below has found on both points in favour of the Defendants, has found that notice to quit ought to have been and was not served upon the wife Jamlu Bibi, has also found that the holding was of a permanent nature, and has dismissed the action with costs. Hence the present appeal by the Plaintiff. 4. We have had several of these cases lately in this Court, all coming from the same neighbourhood. Each of them however depends upon its own particular circumstances, and one is not much of a guide to another. 5. Great reliance has been placed by the Appellant upon a decision of this Court in the case of Ismail Khan Mahomed v. Joygoon Bibee 4 C.W.N. 212 (1900). I do not quarrel with the principles laid down in that case, and, if the facts of the present case had been identical with the facts of the case I have cited, the conclusion would probably have been the same. But as I shall point out in a moment there is a substantial difference between the facts of that case and those of the present. 6. The conclusion in this case depends in the main upon the true effect of the two documents which have been put in by the Plaintiff, as part of his case, viz., the istafa of October 1837, and the kabuliyat of the 1st of December 1837. 6. The conclusion in this case depends in the main upon the true effect of the two documents which have been put in by the Plaintiff, as part of his case, viz., the istafa of October 1837, and the kabuliyat of the 1st of December 1837. The existence of this istafa differentiates the present from the case just cited. 7. The Plaintiff says that the istafa constituted an absolute relinquishment by the then tenant of the land in question and that that was followed by an entirely new contract between the landlord and the new tenant as evidenced by the kabuliyat of December 1837. The Defendants urge that the istafa recognised that the land had been in the possession of the predecessors in title of the executant of the istafa one Srimati Guini for two previous generations, that she had inherited it and that a patta had been executed in favour of her husband of this land and that the land was recorded in the landlord's sherista in the name of the husband. They contend that these recitals show--and having regard to the age of the document and the fact that it was put in by the Plaintiff, they contend that they must, in the absence of any evidence to the contrary, be taken to be true that the tenancy had its origin at a time far anterior to the kabuliyat of 1837, and that it had been evidenced by a patta which is not produced and which is said to have been lost. They further contend that the istafa is merely an intimation to the landlord that the then tenant had sold the tenancy to a purchaser, and asking that the name of that purchaser might be recorded on the sherista of the landlord, and that the rent in future be paid by him. They say that the kabuliyat which followed the istafa was not a new contract evidencing the root of the Defendant's title, and that, upon its face it recognized a previous existing tenancy and was merely a continuation of it. They rely strongly on the payment of the original rent, not only since 1837, but, as they say, for two generations before that date. These in substance are the respective contentions of the Appellant and of the Respondents. They rely strongly on the payment of the original rent, not only since 1837, but, as they say, for two generations before that date. These in substance are the respective contentions of the Appellant and of the Respondents. The terms of the istafa strongly support the Defendants' case and their contentions as to the effect of the patta appear to be well-founded. Taking the recitals in the istafa to be true, they certainly show that the tenancy existed long before 1837, and if it had existed for two previous generations it not improbably went back to the commencement of the century. 8. Passing from the istafa to the kabuliyat we must, I think, assume the patta was in the same terms any way the kabuliyat is produced by the Plaintiff. It recognises in its early passages that there was an existing tenancy of the land in question at the rent which has been the same throughout, and that it had been purchased by the executant of the kabuliyat. These references would be out of place if the parties intended the creation of a new annual tenancy by the patta and kabuliyat, as opposed to the continuation of an old existing tenancy. Again, the provision about enhancement and about erecting buildings are out of place in a deed constituting merely an annual tenancy for if the tenant refused to pay an enhanced rent or erected buildings the tenancy could, if only annual, be terminated on due notice. 9. Read together, the istafa and kabuliyat point to the recognition and continuance of a then existing tenancy as opposed to the creation of a fresh annual one. 10. The provisions as to enhancement and buildings appear to me to be much more consistent with the view that the landlord recognised that Mungli Bibi was then a permanent tenant, than with the view that the document was intended to create a fresh annual tenancy in her favour. 11. Under these circumstances there is no document to which we can properly trace the origin of the tenure but from the recitals in the istafa, it would appear to have existed for a very substantial period, two generations before 1837. 11. Under these circumstances there is no document to which we can properly trace the origin of the tenure but from the recitals in the istafa, it would appear to have existed for a very substantial period, two generations before 1837. We have it then that for a period, probably 100 years, this land has been held at the same rent and that there has been no attempt on the part of the landlord either to enhance or to eject, and the kabuliyat implies that, at its date there was some building upon the land and Defendant No. 1 says there was a pucca building upon it. And although, the landlord gave receipts for the rent in the name of Mungli Bibi, he must have been aware that the property had from time to time been transferred, and there is no suggestion of any objection on his part to such transfers. 12. Under these circumstances the Court is justified in inferring that the tenancy originally created was of a permanent nature, and that the Defendants are not liable to be ejected upon the footing of its being merely an annual one. 13. In this view it becomes unimportant to consider whether the notice to quit was valid as against both the Defendants. The appeal is dismissed with costs. Geidt, J. I concur.