Judgement Appeal from a decree of the High Court (March 6, 1902) reversing a decree of the Subordinate Judge of the 24 Pergunnahs (March 29, 1900). This case was similar to the last (Ante, p. 144.), and judgment was delivered in both on the same day. The plaint recited the appointment of Syed Ashrrafuddin Ahmad as matwali of the Hooghly Imambara, that he granted the plaintiff a lease of the land in suit on November 4, 1895, and that the defendant was a tenant at will, liable to ejectment at any time. The defendant pleaded that he was not a tenant at will, but held a permanent tenure. The Subordinate Judge ruled in favour of the defendant. The High Court, however, was of opinion that a new tenancy was created in favour of Wali Sarang, the defendants predecessor, by a pottah dated April 14, 1852, and that the terms of the said pottah did not grant any permanent interest; it also decided that the landlord was not estopped from denying that the tenure was Law. Rep. 31 Ind. App. 149 ( 1903- 1904) Nilratan Mandal V. Ismail Khan Mahomed 56 permanent, and was not affected by the mode in which the successive tenants had dealt with the property. Phillips and De Gruyther, for the appellants, contended that their tenure was permanent, and had been dealt with as such by their predecessors in title, and so recognised by the plaintiff and his predecessors from 1804, or at least from 1852. They cited the same authorities as in the previous case, and relied upon the plaintiffs acceptance of a fixed rent for a long period, and acquiescence in their construction of buildings on the land. Cohen, K.C., and Bonnerjee, for the respondent, contended that the appellants documents of title did not prove a permanent tenure. The exchange of pottah and kabuliyat in 1852 was inconsistent with it. The term "istifa" used in those documents shewed that the tenant surrendered his holding and the landlord made a fresh grant. It was not the case of an acceptance of a new tenant on the old terms. The matwali could not grant a permanent tenure. It must be shewn that local usage allowed the acquisition of a permanent tenure by such a transaction as that in 1852 see Narayanbhat v. Davlata (( 1891) Ind. L. R. 15 Bomb. 647.) and Babaji v. Nanaji. The matwali could not grant a permanent tenure. It must be shewn that local usage allowed the acquisition of a permanent tenure by such a transaction as that in 1852 see Narayanbhat v. Davlata (( 1891) Ind. L. R. 15 Bomb. 647.) and Babaji v. Nanaji. (( 1879) Ind. L. R. 3 Bomb. 340.) The ncn-interference with buildings on the land did not justify an inference as to the permanence of the tenure see Nabu Mondul v. Cholim Mullik (( 1898) Ind. L. R. 25 Calc. 896, 900.), Colls v. Home and Colonial Stores ([ 1904] A. C. 179.), and Ismail Khan Mahomed v. Broughton. (( 1901) 5 C. W. N. 846.) De Gruyther replied, citing Kalidas Laldas v. Bhaiji Naran. (( 1891) Ind. L. R. 16 Bomb. 647.) The judgment of their Lordships was delivered by LORD ROBERTSON. The suit in which this appeal arises was tot ejectment of the appellants from some five bighas of land in Khidderpur, within the municipal boundaries of Calcutta. The Subordinate Judge of the 24 Pergunnahs decided, on March 29, 1900, in favour of the appellants, on the ground that the appellants tenure is permanent. This judgment was reversed by the High Court on March 6, 1902. The respondent is tenant of the taluq Khidderpur under the matwali of the Hooghly Imambara; and the five bighas is dispute are within the lands held by him. The claim of the appellants is that the disputed land has been held by them and their predecessors on a permanent tenure for a period which goes back long before the waqf was founded. In support of this contention, the appellants found on various transmissions of the disputed property beginning with a deed of sale in 1804. There is another deed of sale in 1810; then a deed of gift in 1850; them a deed of sale in 1851; some mortgages in 1873, 1881, and 1882; then a deed of sale in 1883. It may suffice to say of the terms of the deeds of sale that they unequivocally purport to convey a heritable and transmissible right, and that they all apply to the land in dispute. If it were necessary to go further back than 1804, there is adequate ground for believing that the seller of that year had possessed some land in the mouzah since 1773. If it were necessary to go further back than 1804, there is adequate ground for believing that the seller of that year had possessed some land in the mouzah since 1773. The next question is how far this claim of permanent tenure has been brought home to the knowledge of the respondents predecessors in title and has been acknowledged by them. Now the broader facts of the case are certainly strong. The land has been occupied by the appellants predecessors at an unaltered rent for 100 years although its saleable value has been increased from Rs. 300 to Rs. 3000; they have built on it and have dealt with it, in its earlier and in its enhanced value, by sale and mortgage. Of more direct recognition there is adequate documentary evidence. Their Lordships will assume Law. Rep. 31 Ind. App. 149 ( 1903- 1904) Nilratan Mandal V. Ismail Khan Mahomed 57 against the appellants that a pottah of 1804 is a forgery, and will come at once to the year 1852. In that year there were executed a pottah and kabuliyat of the lands in question. The kabuliyat (which was produced by the respondent) sets out that Wali Sarang, who executes it, has purchased the land, and he declares that "I shall enjoy and continue in possession of the aforesaid land by annually paying the rent/ The kabuliyat and relative pottah make anxious mention of a piece of land being taken off for a road, and that there is to be no claim to abatement of rent on this account. (This stipulation, appropriate enough to a permanent right, is less appropriate if the title in which it occurs is a fresh grant.) The High Court find in this pottah a fresh start of title. Now the primary function of the pottah and kabuliyat would seem to be rather to state the rent payable by the new tenant, and to recognise that it is to him that the landlord is now to look for its payment. But some special significance is supposed to lie in the reference in both instruments to an " istifa " or surrender. The istifa is of course by the seller, and must have been in the hands of the matwali; and it has not been produced by the respondent. But some special significance is supposed to lie in the reference in both instruments to an " istifa " or surrender. The istifa is of course by the seller, and must have been in the hands of the matwali; and it has not been produced by the respondent. This being so, no significance can be attached to what implies no more than that the seller acknowledges that he has parted with the land. The pottah and kabuliyat thus attest no more than that the landlord recognised the sale, with this added significance that, as the Subordinate Judge mentions (for the translation does not bring it out), the pottah speaks of the jumma as according to former custom and practice. That the matwali speaks of his act as operating "so long as my authority will last" bears neither for nor against the respondent, for this was the necessary quality of all and every of his acts as an administrator. In these documents of 1852, therefore, their Lordships are unable to find any surrender by the tenant; and, on the contrary, the execution and exchange of those instruments bring home to the landlord knowledge and recognition of the tenants transmission of the property by sale in an instrument which purports to convey a permanent and inheritable right. Taken along with the other facts of the case, before and after, the proceedings of 1852 tend to establish the appellants case. The question here, as in other similar cases, is whether the true inference from the facts is that the tenure is permanent or precarious, the burden of proof being on the tenant. It was somewhat faintly argued by the respondent that a special local custom must be proved ; but, on examination, the authorities cited relate to Bombay and not to the province from which this appeal comes. Their Lordships will humbly advise His Majesty that the appeal should be allowed, the decree of the High Court discharged with costs, and the decree of the Subordinate Judge restored. The respondent will pay the costs of the appeal, except the costs of the appellants petition for further documents, which costs will be borne by the parties themselves.