JUDGMENT 1. The decision of this action in ejectment, and for mense profits, concerning two plots of land, with an area of 4 cottahs or thereabouts, "in premises No. 292/4/1, Upper Chitpore Road," Calcutta, instituted on March 2, 1951, turns on the permanency or non-permanency of the tenancy of the defendants. If the defendants' is a permanent tenancy, the suit is bound to fail. If, however, theirs is a monthly tenancy, without more, coming nowhere near a permanent tenancy, as the plaintiffs contend it is, the suit is bound to succeed. That this is the position in facts and at law is agreed to on all hands. Mr. Dey appearing for the plaintiffs, Mr. Sinha appearing for the tenant-defendants, and I view so the crux of this litigation. 2. NOW to the case made out in the plaint One Manglu Kumvakar was a monthly tenant, according to the Bengali calendar, of the land in controversy here under Kumar Dhirendra Krishna Deb Bahadur, the second plaintiff of this suit. The terms and conditions of such tenancy were - (1) Manglu would pay rent at the rate of Rs. 10 a month for one plot, Rs. 5 a month for the other, and Rs. 6 2 annas each quarter on account of rates to the Corporation of Calcutta. (2) he would use the premises so demised for the purpose of residence of himself and his family and for no other. (Vide paragraph 1 of the plaint.) By an appropriate notice to quit, dated April 29. 1942, corresponding to baisakh 16. 1349 B. S., duly served on Manglu. Kumar Bahadur, the second plaintiff, determined Manglu's tenancy on the expiry of the month of Jaistha 1349 B. S. Manglu however, defied the notice and continued in occupation as before. Worse, Manglu installed Shiva, a deity, in the demised property, set up a temporary shed for housing the said deity, and converted the land in controversy as a place of worship, to which "members of the Hindu public" had free access. 3. ON or about October 4, 1942, manglu died, leaving behind him surviving his wife (Mustt. Kusum and three sons, Gangadhar, Birju and Jahar- defendants all at the inception of the suit on March 2, 1951. During the carriage of the suit, however, died Kusum and Gangadhar, with the result that Birju and Jabar are now the defendants numbered 1 and 2. 4. Kusum and three sons, Gangadhar, Birju and Jahar- defendants all at the inception of the suit on March 2, 1951. During the carriage of the suit, however, died Kusum and Gangadhar, with the result that Birju and Jabar are now the defendants numbered 1 and 2. 4. LORD Shiva, the deity, is the 3rd defendant, separately represented. July 1, 1946, and something happened - which it is hardly necessary to notice, in view of the way the litigation goes at the trial. But it has to be stated yet, if only to understand what the plaint is like. This day, namely, on July, 1946, by a duly registered indenture of lease, Kumar Bahadur, the second plaintiff, demised unto one Baidya nath Nawn, "292/4/1", (I described the demised promises so, for short), amongst other premises, for a term of 31 years, "on the rents and upon the terms and conditions therein contained". This is why the aforesaid lessess, Baidya nath Nawn, figured as plaintiff No. 1, when the plaint was filed in Court on March 2, 1951. Another devolution again. but during the carriage of the suit. On April 29, 1953, by a registered indenture of assignment, Nawn, the lessee, for consideration therein contained, assigned his leasehold to Kumar bahadur's son, Kamal Krishna Deb, who, therefore, figures a plaintiff No. 1. Thus, the suit, as it stands now, is by son and father. Kamal Krishna and Kumar Bahadur, plaintiffs numbering 1 and 2 respectively. 5. TO continue noticing what is material in the plaint, three more notices were served on the tenants, calling upon them to quit by 1356 B. S. Aswin's end. One such notice is dated September 5, 1949, corresponding to Bhadra 19, 1356 B. S. And the two others are dated September 16, 1949, corresponding to bhadra 30, 1356 B. S. They also yielded little result. Defying them again, the defendants have been continuing in occupation - wrongful occupation, as it is said - of the two demised plots. 6. Hence, the suit for possession, mesne profits, etc. In view of the manner in which the controversy between the parties has shrunk at the trial, the pleas, the defendants resist the suit with, need not be referred to further than as follows : (1) ours is a permanent tenancy. We have been in occupation of the demised premises as permanent tenants under kumar Bahadur, plaintiff No. 2. In view of the manner in which the controversy between the parties has shrunk at the trial, the pleas, the defendants resist the suit with, need not be referred to further than as follows : (1) ours is a permanent tenancy. We have been in occupation of the demised premises as permanent tenants under kumar Bahadur, plaintiff No. 2. We cannot, therefore, be evicted. (Vide paragraph 8 of the written statement. (2) the notice of September 1949 we have received. (Of the three notices, the one of the September 5 is presumably meant, as it appears from subsequent submissions. It is, however, a matter of the least materiality, as will presently be seen.) But our tenancy, a permanent one, cannot be determined thereby. (See paragraph 12 of the written statement.) 7. Lord Shiva, the third defendant, has filed what is called a voluntary written statement through His guardian ad litem, an attorney of this court, who pleads that he has had no instructions and that the interest of the deity be protected by the Court. 8. The issues struck at the trial are -1. Are the defendants monthly tenants, as alleged in paragraph 1 of the plaint, or have they been in occupation of the premises in controversy here as permanent tenants, as alleged in paragraph 8 of the written statement ? 2. Is the notice dated September 5, 1949, a valid notice at law, in view of the facts alleged in paragraph 12 of the written statement ? 3. What reliefs, if any, are the plaintiffs entitled to ? The second issue, just tabulated, shortens itself much more, because the only fact of the written statement's paragraph 1. 2, that is now insisted upon, is the fact of permanency of the tenancy, rendering the notice to quit an idle one. 9. The parties examine a witness each. Kamal Krishna Deb, himself plaintiff No. 1 and aged 46 or thereabouts on the date of his evidence : November 22, 1966, (q. 10), is the sole witness on behalf of the plaintiffs. Birju, himself defendant No. 1 and aged 60 or thereabouts on the date of his evidence : November 23. 19s6, (q. 27), is the sole witness on behalf of the defendants. This is, therefore all the oral evidence led at and during the trial. 10. Birju, himself defendant No. 1 and aged 60 or thereabouts on the date of his evidence : November 23. 19s6, (q. 27), is the sole witness on behalf of the defendants. This is, therefore all the oral evidence led at and during the trial. 10. The documentary evidence consists of (i) the brief of documents, exhibit A, (ii) rent-receipts of 1309 B. S., 1311 B. S., 1313 B. S. . 1314 B. S. . 1317 B. S., 1320 B. S. . 1342 B. S. 1347 B. S., and 1348 B.S. exhibit 1 collectively, and (iii) the licences issued by the Coprn. of Calcutta to Mongroo (obviously same as Manglu)for carrying on the business of pottery at "292/4/l" for the years : 1907, 1909 and 1910. exhibit 2 collectively. To the first issue first. Indeed, in a way, this is the only issue for determination. Upon the whole of the evidence, oral and documentary, it appears that the origin of the tenancy in controversy is not known. All that the plaint condescends to aver is that Manglu, the predecessor of the present defendants was a monthly tenant under the Kumar bahadur, plaintiff No. 2, according to the Bengali calendar and under certain terms as already noticed in paragraph 2 ante. On the question of permanent tenancy, this cannot be reckoned against the plaintiff's for two reasons. One, the case, they come to Court with, is a case of monthly tenancy ; and it is, therefore, none of their business to oblige their adversaries by averring facts which may lay the foundation of a permanent tenancy. Two. it is the business of the defendants to show existence of facts leading to the inference of a perpetual tenancy, for the onus is upon them to prove that they have the right they claim, as Mr. Bey rightly contends. On the question of the burden of proof, such indeed has been the uniform law laid down from 1883 to 1966 : (1) Secretary of state for India v. Luchmeswar Singh (1888) LR 16 TA 6. (2) Nilratan mondal v. Ismail Khan, (1904) 8 CWN 895 : 31 IA 149, (3) Seturatnam Aiyar v. Venkatachala Gounden, (1919) LR 47 IA 76 : 25 CWN 485. (4) Nainapillai Marakayar v. Ramanathan Chettiar, (1923)51 IA 83, (5) Subramaya Chettiar v. Subramanya Mudaliyar, (1929) 56 IA 248. and (6) Atyam Veeraju v. Pcchetti venkanna. (2) Nilratan mondal v. Ismail Khan, (1904) 8 CWN 895 : 31 IA 149, (3) Seturatnam Aiyar v. Venkatachala Gounden, (1919) LR 47 IA 76 : 25 CWN 485. (4) Nainapillai Marakayar v. Ramanathan Chettiar, (1923)51 IA 83, (5) Subramaya Chettiar v. Subramanya Mudaliyar, (1929) 56 IA 248. and (6) Atyam Veeraju v. Pcchetti venkanna. 1966 (I) SCA 323 : AIR 1966 9c 629. So, what do the defendants awer in their written statement ? permanent tenancy, PS noticed in paragraph 9 ante. What remains to be noticed yet is the averment in paragraph 17 of the first two defendants' written statement : the tenancy is subsisting for about 100 years at a stretch. Inducted as a permanent tenant, Manglu cleared the jungle, "filled up dug outs" (meaning presumably hollow places and pits), made the place fit for human habitation, erected structures, lived there for 90 years and more, and died there too "at the grand old age of 112 years. " The rent was uniform at Re. 1/8 annaa a month for more than GO years on end. And only when Kumar Bahadur, the second plaintiff, inherited the estate, the rent was enhanced at his request. 11. Such then are the pleadings from which I now turn to oral evidence. On the defendants' side, the best person to speak about the origin of the tenancy would have been Manglu, with whom the tenancy originated, according to paragraph 17 of the written statement. But, unfortunately, he is dead. He died on October 4, 1942, as is the averment in the 4th paragraph of the plaint. So, the only oral evidence: I have to be content with is that of the first defendant Birju. aged 60 : q. 27. Such a one says that his father, Manglu, lived in the suit premises for about 90 years as a perpetual tenant and died here too, at the age of 112, in the latter part of 1942 : qq. 9-12 and 6-8. Since the exact date of Manglu's death is given in the 4th paragraph of the plaint as October 4, 1942, calculating backwards therefrom a period of 90 years, one reaches 1852 when Birju, aged 60 years in 1966. was not even born. His year of birth would be 1906. He is, therefore, a singularly unfit person to speak about the origin of the tenancy. was not even born. His year of birth would be 1906. He is, therefore, a singularly unfit person to speak about the origin of the tenancy. Equally, if not more, unfit is the first plaintiff, Kamal Krishna Deb, aged 46 in 1966 (q. 10), to depose thereto. Perhaps, his father Kumar Bahadur, the second plaintiff, aged 23 in 1966, as Kamal says (q. 47. could have thrown some light. But, down with gastric troubles and unable to move about even in his house, he does not come to Court to let me 40 have the benefit of his sworn testimony, (q. 48 to Kamal. That, or his failure to get himself examined on commission, which his physical ailments could not surely have prevented, I do not make a point of against him and his son, the two plaintiffs before me. I do not, because the burden of proving permanency is not on them. On the contrary, the onus probandi lies so clearly on the tenants, the first two defendants. 12. The documentary evidence does not enable me either, to know what I am anxious to know : the origin of the tenancy. Take the earliest of the rent receipts, exhibit 1 collectively. It is No. 3200062 : Bill No. 4 : and dated Jaistha 2, 1309 B. S. corresponding to a certain day in mid-May 1902. There are three other receipts of 1309 B. S. dated the 2nd day of Ashar, Aswin and Falgun. But such receipts do not evidence the start of the tenancy. They only testify to the recognition of an existing tenancy. That apart, they contribute little or nothing to the topic I am on now : the origin of the tenancy. Then, what is material is not the date of the tenancy ; what are material are the terms thereof, as emphasized by Sir George Rankin in (7) Jnanendra Nath Dutt v. Nasea Dasi. (1923) 39 clj 526, and as reiterated by Mukherjea, J, (as his Lordship then was)presiding over a division of this Court in (8) Probhas Chandra Mallik v. Dhirendra. Nath Das, (1939) 43 CWN 828. Thus, upon the whole of the evidence, I know next to nothing about the terms of the tenancy at its inception. The finding must, therefore, be - as indeed it is - that the origin of the tenancy is not known. 13. Nath Das, (1939) 43 CWN 828. Thus, upon the whole of the evidence, I know next to nothing about the terms of the tenancy at its inception. The finding must, therefore, be - as indeed it is - that the origin of the tenancy is not known. 13. Once the finding is so, the character of the tenancy has to be inferred from all surrounding facts and circumstances including the subsequent conduct of the parties, as is the law settled by a long line of decisions, such as, to mention only a few, (9) J. Winterscale v. Sarat Chandra Banerjee, (1903)8 CWN 155, (10) Upendra Krishna Mondal v. Ismail Khan Mohamed, (1904) 8 CWN 889 : 31 IA 144, Nilratan Mondel's case (1904) supra, paragraph 15 ante, (11) Naba Kumari Debi v. Behari Lal sen, (1907) 11 CWN 865 (PC), Seturatnam Aiyar's case (1919) supra, paragraph 15 ante, (12) Chidambara Sivapraksa pandara Sannadhigal v. Veerama Reddi, (1922) LR 49 IA 286, (18)Bireswar Mookerji v. Sm. Trailokya dassi. (1926) 30 CWN 709, (14) Pramatha Noth Das Bairagi v. Champa Dassi, air 1929 Cal. 473, Probhas Chandra mallik's case (1939) supra, paragraph 18 ante, approved by the Supreme Court in (15) Bejoy Gopal Mukherjee v. Pratul Chandra Ghosh, 1953 SCR 930 : AIR 1953 SC 153 , and Atyam Veeraju's case (1966. cited in paragraph 15 ante. In the last-mentioned decision however, though the law laid down is that a tenancy of unknown origin with continuous, uninterrupted possession for over a century, with no attempt by the land lord to raise the rent or to eject the tenants in spite of the upping and still more upping of the land value and let-ting value, with periodic leases and mortgages for short terms etc., would be taken as a permanent tenancy, such law could not avail the tenants, for the simple reason that the tenancy was of a known origin, because of a sanad dated November 10, 1851, which the; tenants had withheld. 14. Let it now be seen what are the facts and circumstances, as also the conduct of the parties, which emerge upon the whole of the evidence. 14. Let it now be seen what are the facts and circumstances, as also the conduct of the parties, which emerge upon the whole of the evidence. That Manglu and his heirs, including the first two defendants before me, have been in possession of the 4-cottah land in controversy here, in the heart of the town of Calcutta, for more than 49 years, at the inception of this suit on March 2, 1951, appears to be clear enough. The earliest rent-receipts available now are of 1309 B. S. corresponding to 1902, barring the one of Falgun 2 which would correspond to 1903. But these are not rent-receipts creating the tenancy. These are rent-receipts recognizing a tenancy that exists. Hence, I say, more than 49 years' possession (1902-1951) of the demised land is patent. The three licences of 1907, 1908 and 1910, exhibit 2 collectively, lend assurance to such conclusion. Ancient documents of undoubted authenticity, they prove themselves and show Manglu (recorded there as Mangroo) carrying on a pottery at "292/4/1" : just the premises in controversy. The surname Kumbhakar (distorted in the plaint as Khumvakar) which the first two defendants bear, and which their father Manglu bore, shows as much : that theirs has been a family of potters, a functional caste so well-known in this part of the country. The plaint, by its first paragraph, pleads much too much when it avers as one of the terms of the tenancy, that Manglu was to use the demised premises "for the purpose of residence of himself and his family and for no other purpose. " For one thing, to plead is not to prove. For another, the evidence of Kamal. the solitary witness of the plaintiffs, does not prove what is so pleaded. He cannot say positively whether the land in suit was let out to Manglu for residential purposes or something else. When a lad of 22 or 24. that is to say, in or about 1942-44, during his periodic visits there, accompanied by a darwan, all he saw was a potter's wheel along with clay dolls, pots and a roof too, presumably for getting articles of clay dried up. Now, there are two sheds. See qq. 106 and 107. But where did this family of potters live ? that Kamal cannot say positively again. He did not see them living at "292/4/1". May be, they lived somewhere else. Now, there are two sheds. See qq. 106 and 107. But where did this family of potters live ? that Kamal cannot say positively again. He did not see them living at "292/4/1". May be, they lived somewhere else. He saw them running the potters' wheel there, and a small shed too. More, during the Sarbajanin durga, Pujah, "292/4/1" was pressed into service for Jatra performance and the like. He therefore infers : "most probably, that place used to be lying vacant. " - q. 108. It is then time to canfront him with the cause title in his own and his father's plaint where the kumbhakars, the defendants - past and present -, are described as "residing at premises No. 292 /4/1, Upper Chitpore road in the town of Calcutta. " And this is what the cross-examining counsel does : q. 110. Then only Kamal is good enough to admit that in 1951, the year the present suit was instituted, the defendants were residing at "292/4/1". And they were residing so from 1946 : q. 111. So, there were living rooms even in 1946, and not merely two shads which Kamal claims to have seen "at present" (1966 or thereabouts) : q. 1. 07. Indeed, Kamal himself admits a little later that Manglu did erect a structure on the land in suit for his residence : q. 115. But he would not put it on the other side of 1946 : q. 116. Surely, manglu with his family was not living with the sky as his roof for 44 years and more from before 1902. Again, manglu, dead on October 4, 1942, could not have erected structures in 1946. To put it very mildly, fencing is writ large upon such evidence so that the truth may not be out. 15. And the truth appears to be that Manglu lived here all along until his death on October 4, 1942, and worked as a potter for his living. Such is the evidence of Birju (q. 17) - evidence which is so consistent with probability and common sense. 15. And the truth appears to be that Manglu lived here all along until his death on October 4, 1942, and worked as a potter for his living. Such is the evidence of Birju (q. 17) - evidence which is so consistent with probability and common sense. Throwing my mind back to pre-1902 days, the earliest rent-receipt exhibited being of 1902, when Calcutta was not what it is today, packed like sardines, when Calcuttans had space, enough to spare, when occupational castes had their heyday : just "the concept of a particular coin for a particular slot", I find little difficulty in coming to the conclusion (as I do) that Manglu, a potter by caste and occupation, got into the land in controversy here for living and earning too as a potter. Birju was not born when his father, Manglu, had first come in. But he had seen his father living and earning so, from the dawn of his knowledge, say, from. 1912, when he was six, till 1942 when Manglu died. Birju is 60 in 1966. Appearances are, therefore, very much in favour of Manglu having lived at "292/4/1" from before 1902, having worked here as a potter and having died here too in 1942. After his death, his wife and sons continued to live here till the institution of the present suit on March 2, 1951. I, therefore, find as a fact long possession of manglu and his heirs for a period of over 49 years. 16. But can this finding go a little more? Can it be said: how many years over 49 years? The anxiety on the part of Kamal to put it on "a low side looks patent. In chief, he will go so far as to say that his father, Kumar Dhirendra krishna Deb Bahadur, plaintiff no. 2, inducted Manglu as a tenant : q. 9. But when, in cross-examination, he is made to face the rent receipts granted by his father's father, Late Kumar Sushil krishna Deb Bahadur, or by Sushil's mother, Late Rani Raj Kumari, (Kamal's great-grandmother), exhibit 1 collectively, he comes down and says that if he had stated his father having inducted Manglu as a tenant, he made a mistake, maintaining at the same time that he had not stated so : q. 88. In that, he is entirely wrong. In that, he is entirely wrong. The recorded evidence (q. 9) reveals that he did state so. That is what I heard him say too. Such anxiety on the part of kamal betrays itself once more when he attributes a statement to his father that manglu had been a tenant from two generations before. That would take the tenancy to the time of Sushil kumar's father and Rani Raj Kumar's husband, Kamal's great-grandfather. But to say so is to say much too much in favour of the tenants. Kamal, therefore, resiles from such evidence there and then, and says : "not two generations, only one generation, that is, my father's father Sushil Krishto (Krishna)Deb" q. 61. 17. Since Kamal's father, the maker of such statement, is not examined, the vice of hearsay, it may be apprehended, lurks here. But there is a clear distinction between (i) the factum of a statement and (ii) the truth thereof. The former does not give rise to hearsay. The latter does. As the Privy Council, the Board consisting of Lord Radcliffe, lord Tucker, and Mr. L. M. D. De Silva (by whom the reasons for allowing the appeal are delivered. points out in (16) Subramaniam v. Public Prosecutor, (1956) W. L. R. 965 at page 970: ''evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness. . . . . . . . . . in whose presence it was made. " : just the law section 60 of the Evidence Act 1 of 1872 prescribes: ''oral evidence must, in all cases whatever, be direct : that is to say-if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. . . . in whose presence it was made. " : just the law section 60 of the Evidence Act 1 of 1872 prescribes: ''oral evidence must, in all cases whatever, be direct : that is to say-if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. "-I do no more than rely on the fact that such a statement was made by the father to the son. On the truth thereof I say not a word. Because, to that extent, it is hearsay and inadmissible. reckon too how Kamal changes the contents of such statement quickly, so that the tenancy may not look old enough. Indeed, he reduces the age of the tenancy by one generation, first aging it as two generations before his father. 18. NOW. from such attempts to hide the true age of the tenancy, let me proceed to the correspondence to and fro in 1942. On March 24, 1942, Kumar bahadur, the second plaintiff, caused a solicitor's letter P. D. 1) to be addressed to Manglu demanding vacant possession, Rs. 153/6 annas as arrears of rates and rents etc. On April 1, 1942, manglu caused a reply (P. D. 2) to be sent thereto, through his pleader, denying the quantum of arrears claimed Rs. 153/6 annas), pleading payment of rs. 42/4 annas as the result of which the arrears would go down to Rs. 111/2 annas, (in P. D. 2, Rs. 11/2 annas appears to be an obvious slip for Rs. 111/2 annas), soliciting the withdrawal of the ejection notice on the ground that he (Manglu) and his forefathers had been in occupation of the demised land "for more than 100 years," and regretting his inability to "throw away" the deity shiva, "found out on digging" a Hindu as he was - a deity for which, and for the Barwari festivals in connection with which, the ejection notice owed its existence. On April 23, 1942, Kumar Bahadur's solicitor replied to manglu's pleader by a letter (P. D. 3), consisting of two paragraphs. By the second paragraph, the find of the deity shim underground was stigmatised as false, and legal steps for recovery of possession were threatened. By the first paragraph was averred -". . . . . . . . . . the figure given in our letter to your client (Rs. By the second paragraph, the find of the deity shim underground was stigmatised as false, and legal steps for recovery of possession were threatened. By the first paragraph was averred -". . . . . . . . . . the figure given in our letter to your client (Rs. 153/6 mans), dated 24th of March 1942 representing the arrears of rent due is correct and whatever is stated in your letter under reply contrary thereto is incorrect. " the underlining (for italics) is mine. Contrary thereto is contrary to what ? The plain meaning of the language used, in the context of the sentence that goes before, is, and can only be, contrary to the figure : Rs. 153/6 annas, stated in the letter under reply. Contrary thereto cannot, and does not, mean, as Mr. Dey contends for, contrary to all other statements in the letter under reply. The result, therefore, is that such an important statement about the occupation by Manglu and his forefathers for more than 100 years, in Manglu's pleader's letter of April 1 1942, (P. D. 2), is not even denied in Kumar bahadur's solicitor's reply of April 23, 1942. It is not denied, presumably because it is taken as true. This is one way of looking at the correspondence : the way Mr. Sinha asks me to look at it. Mr. Dey however, raises the question that no permanent tenancy has been averred either, in Manglu's pleader's letter of April 1, 1942 (P. D. 2. Worse, what is craved for is mercy, so that occupation of a hundred years and more may remain undisturbed. Why so, concludes Mr. Dey, if Manglu's were a permanent tenancy ? Certainly this may be said. But, where the tenancy's origin is unknown (as here), permanency becomes a legal concept, depending on the true inference to be drawn from the facts, which unequivocally point to the conclusion that the tenancy is a permanent one : just what has been held by Mukherjee, J. in Prabhas Chandra Mallik's case (supra), by Lord Robertson in Nilratan Mondal's case, (supra), or by S. R. Das, J. in Bejoy Gopal Mukherji's case, (supra), to cite but three authorities on the point. So, what does it matter that the plea of a permanent tenancy has not been asserted in Manglu's pleader's letter of April 1, 1942, (P. D. 2) -which Mr. So, what does it matter that the plea of a permanent tenancy has not been asserted in Manglu's pleader's letter of April 1, 1942, (P. D. 2) -which Mr. Dey makes a point of ? What does matter, however, is the true inference to be drawn from all facts and circumstances put together. 19. But, before I proceed to find other facts, I notice, on my own, what looks like a dissonance. Whereas Manglu's pleader's letter of April 1, 1942, attributes more than 100 years' possession to Manglu and his forefathers, paragraph 17 of the written statement sets up Manglu as the first tenant to have been inducted into the demised premises. Where go then Manglu's forefathers ? That is the dissonance. I am clear, however, it is nothing like so important. What Manglu, the grand old man. knew, his children could not. While Manglu naturally knew possession of his fathers, his children could hardly know the possession of any save manglu, endowed with such a long life. So, the inconsistency between the letter of April 1, 1942, based on Manglu's instructions, and the written statement of April 6, 1951, (verified on this date, filed on July 24, 1951), based on hid son Gangadhar's instructions, has nothing unusual in it. The more so, if you see the type Manglu's children are like. I have had the advantage of making acquaintance with one : Birju, in the witness-box. A simpler man. innocent of all worldly affairs relating to a litigation, it is difficult to find. Precise and correct instructions from a type he is, it is impossible to expect. Gangadhar, corning of the same stock, could not have been, I fear, any the better. The plain truth about such humble litigants is that they do not instruct their lawyers, in the true sense of the term, but are put instead through their paces by the lawyer. And if the drafting lawyer had taken a little care in posting himself well enough with Manglu's pleader's letter of April 1, 1942, - the two lawyers are not the same -, assuming that manglu's heirs had a copy thereof, the averment in the 17th paragraph of the written statement would not have been what it is now. At all events, more than 100 years' possession by the tenants is not denied by the landlord, giving rise to an admission by non-traverse. 20. At all events, more than 100 years' possession by the tenants is not denied by the landlord, giving rise to an admission by non-traverse. 20. Having regard to the foregoing considerations, I find as facts --A. Possession for 49 years and more is certain on the basis of rent-receipts, the earliest of which are of 1902. B. Possession of more than 100 years is probable in view of the admission by non-traverse, just noticed. The next finding of fact I come to is there to be seen that the demised land is situate, not in a remote village, but in Upper Chitpore Road -a place which has an importance all its own as Calcuttans, and even some non-Calcuttans, know. 21. The rent for 4 cottahs of land in such area was only Re. 1/8 annas a month for years. Going by the few rent-receipts the tenants could lay their hands on - and it is futile to expect that the tenants of the type I see before me would preserve such receipts with care, month by month, for years on end -the rent was so even up to the month of Poush 1320 B. S., corresponding to, say, mid-December 1913 to mid-January 1914, as is evidenced by the rent-receipt of Magh 16, 1320 B. S., corresponding to a date towards the end of January 1914. An ancient document, it is over the signature of Kumar Dhirendra Krishna Deb Bahadur, the second plaintiff only one rent-receipt numbered 330005, bill No. 3, dated Ashar 2, 1309 B. S., a date in mid-June 1902), enters Re. 1/12 annas as rent, as it looks at first sight. Mr. Sinha takes it so : q. 73 to kamal. But, read with care, the figure appears to be really Re. 1/8 annas which is written in such a manner that one is apt to mistake it for Re. 1 12 annas.)Thereafter, in 1935 or thereabouts, going by the rent-receipts again, the rent was enhanced to Rs. 5 a month. See rent-receipt for Bhadra 1342 B. S. dated aswin 1, 1342 B. S., corresponding to a date in the latter half of September 1935, recording the rent to be Rs. 5 a month, presumably for the smaller plot (one and half cottach) : q. 14 to Kamal. Coming to oral evidence, all Kamal can say is that the rent went no increasing and came to Rs. 5 a month, presumably for the smaller plot (one and half cottach) : q. 14 to Kamal. Coming to oral evidence, all Kamal can say is that the rent went no increasing and came to Rs. 10 from Re. 1/8 annas. But when it was enhanced to Rs. 5 for the one and half cottah plot and to Rs. 10 for the two and half cottah plot, he cannot say without consulting records and his father : qq. 75, 91 and 92. So, records are there showing when enhancement of rent was timed. Birju fares little better too. He has no recollection when the rent reached the present level of Rs. 10 plus Rs. 5 : q. 20. But, he says the rent was enhanced when Dhirendra Krsihna, plaintiff No. 2, inherited the property : q. 19. There, he is not quite right. As noticed, even on magh 16, 1320 B. S- (December 1913 -January 1914), Dhirendra Krishna issued a receipt for Re. 1/8 annas. 22. In this state of evidence, the minimal finding that can be come to, in safety, is that the rent of Re. 1/8 annas continued for years till 1935 when the rent for the smaller plot was raisai to Rs. 5, that of the bigger plot having been raised to Rs. 10 in or about 1941. See the rent-receipts numbered 238, 213 and 283, dated Falgun 1, Magh 1, 1347 B. S., and Baisakh 1, 1348 B. S. (corresponding to 1941) - receipts which were written by the plaintiffs' employee Braja Dulal Mukherjee and signed by plaintiff No. 2, as is Kamal's admission : qq. 95-101. And I find just so as a fact : no uniformity of rent through out the life of the tenancy, but a nominal rent of Re. 1/8 annas a month for veers and enhancement thereof to Rs. 10 plus Rs. 5 by 1941 when the tenancy was certainly some 39 years old and probably much more : almost a century old. There is still another finding to be come to, upon evidence, no less upon the notoriety of the subject. Kamal estimates the land value in and around "292/4/l" to be Rs. 10,000 a cottah in 1940. Not that he guesses menely. He has had knowledge of acquisition of other land of theirs under the Land acquisition Act. There is still another finding to be come to, upon evidence, no less upon the notoriety of the subject. Kamal estimates the land value in and around "292/4/l" to be Rs. 10,000 a cottah in 1940. Not that he guesses menely. He has had knowledge of acquisition of other land of theirs under the Land acquisition Act. And relying on such knowledge, he puts the probable valuation at that : Rs. 10,000 a cottah : qq. 124 and 135. This sort of evidence apart, that land in and about Upper chitpore Road would fetch Rs. 10,000 a cottah in 1940 or 1941 is such a notorious fact - indeed, a matter of common knowledge - that I can even take judicial notice of it. Upping of saleable value necessarily means upping of letting value too. Calculated at the letting value of Rs. 15 a month, the value of the 4-cottah land will be no more than rs. 3,600, (P. M. 15x12x20), on the basis of 20 years' rent. That works out at Rs. 900 a cottah. So, how disproportionate the enhencement of rent has been to the rise of the saleable and letting value of the land is plain to be seen. 23. TO sum up, the findings of fact I come to are - (1) Long possession for at least 49 years, and probably much more : even a longer period than 100 years, when the suit was Instituted. (2) Situation of the land in a locality in the heart of the town of Calcutta, the importance of which grew and grew, (3) A nominal rent of Re. 1/8 annas subjected to a nominal enhancement of Rs. 15, years later even though prices of land and the letting value had gone up very high indeed. 4. One succession in the family of tenants, reckoning from Manglu and more than one, reckoning from Manglu's predecessors. 5. Erection of structures on the demised land for the purpose of residence. 24. Such then are the broader facts of the case. Are they strong enough to lead to the inference of a permanent tenancy? Mr. Dey submits, they are not. Why he submits so I proceed to examine. The question of onus, which Mr. Dey emphasizes again, again and. again, cannot show its head, in view of the way I am going. Such then are the broader facts of the case. Are they strong enough to lead to the inference of a permanent tenancy? Mr. Dey submits, they are not. Why he submits so I proceed to examine. The question of onus, which Mr. Dey emphasizes again, again and. again, cannot show its head, in view of the way I am going. To quote Sir Lawrence Jenkins in Seturatnam Aiyar's case, (supra), cited in paragraph 15 ante : "the controversy had passed the stage at which discussion as to the burden of proof was pertinent, the relevant facts were before the Court, and all that remained for decision was what inference should be drawn from them. " : 47 IA 76 at page 85. Just so in the case in hand. Or, to quote from another Privy Council decision, Chidambara Sivaprakasa Pandara Sannadhigal's case, referred to in paragraph 19 ante : when the entire evidence is before the Court, the debate as to onus is purely academical. " I do not, therefore worry myself any more on the burden of proof. I proceed instead to find out the true inference from the broader facts tabulated above. 25. Fixity of rent, Mr. Dey contends, is not here. That indeed is true. Rent varied from Re. 1/8 annas (at which it had remained for years) to Rs. 15. The answer to such a contention is: fixity of rent need not always be there, to make the tenancy a permanent one. Governing myself by the Supreme Court decision in Bijay Mukherji's case, cited in para. 19 ante. I hold that permanency does not necessarily mean fixity of rent and fixity of occupation - a feature Mr. Sinha emphasizes, and rightly in my judgment. Certainly, this sort of enhancement of rent is a, circumstance I am bound to take into consideration. And i do so, but only to find that this is so nominal an increase in the context of enormous increase of the salebale value and letting value of the 4-cottah land in Upper Chitpore Road of Calcutta. (See paragraph 33 ante.) So, such increase cannot militate against the tenancy being a permanent one. 26. Relying on two Privy Council decisions : Nainapillai Marakayar's case and Subramanya Chattiar's case, referred to in paragraph 15 ante, Mr. (See paragraph 33 ante.) So, such increase cannot militate against the tenancy being a permanent one. 26. Relying on two Privy Council decisions : Nainapillai Marakayar's case and Subramanya Chattiar's case, referred to in paragraph 15 ante, Mr. Dey is at a loss to find the basis of the permanent tenancy claimed, and reminds me that there can be no acquisition of a permanent tenancy by prescription. The latter proposition : Prescription conferring no permanent tenancy, has now become a truism. No tenant of lands can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands. Nainapillai Marakayar's case apart, such is the law laid down in (17) Madharrao Waman Saundaigekar v. Raghunath Venkatesh Deshpande. (1923) 50 I. A. 255 AIR 1923 P.C. 205, as also in (18) Md. Mumtaz Ali khan v. Mohan Singh. (1923) 50 I. A. 202 : A.I.R. 1923 P. C. 188, and recently restricted by the Supreme Court in Atyam Veeraju's care I have gone by in paragraph 15 ante. Indeed, prescription and tenancy go so ill together. But I am not going that way. I am going instead the well-recognized way of drawing a true inference from facts firmly established. This brings me to the other submission of Mr. Dey : lack of any basis of the permanent tenancy claimed. Sir John Edge, delivering the judgment of the Board in Nainapillai's case supra, observes that "a permanent right can only be obtained by a tenant by custom, or by a grant from an owner of the land who happens to have power to grant such a right, or under an Act of the Legislature. " Lord Salvesen delivering the judgment of the Board in subramanya Chettiar's case, (supra. quotes the following passage from the judgment of Sir Lawrence Jenkins in seturatnam Aiyar's case (supra): "permanence is not a universal and an integral incident of an underryot's holding. If claimed, it must be established. This may be done by proving custom, contract or a title, and presumably by other means. " taking his stand on these passages, Mr. Dey asks : 'what is the basis of the permanence claimed here ?' Mr. Sinha answers : 'nothing like custom or an act of the Legislature is here. What; is here is contract. And what is a grant but a contract ?' I accept this answer. " taking his stand on these passages, Mr. Dey asks : 'what is the basis of the permanence claimed here ?' Mr. Sinha answers : 'nothing like custom or an act of the Legislature is here. What; is here is contract. And what is a grant but a contract ?' I accept this answer. And I find such contract, not on the hypothesis of a written one, - for there is none -, but upon the broad facts and circumstances (listed in paragraph 34 ante), which, put together, can be Explained only on the hypothesis of the permanence of the tenancy. No case of a lost grant arises here. What does arise, upon the broader facts, is the only one inference that is possible : the inference of permanency. And it is an inference which offends no legal principles, such as breach of duty on the part of the sebait. In vain, therefore, does Mr. Dey point to the lack of a suggestion even as to a lost grant here, as in nainapillai's case (supra. And that subramanya Chettiar's case (supra), cannot be relied too much in this suit for eviction will be apparent from what I reproduce below from Lord Salvesen's judgment in that case : "the present suit is not an action of ejection, but it is brought to establish that the plaintiff respondent is entitled to have all the lands within his title partitioned on the footing that the appellants as a community of cultivators have not acquired the permanent right of occupancy which they claim. Their lordships express no opinion as to the term on which ejection of any individual occupier may be sanctioned by the court if and when such a suit is brought. " naturally, Mr. Sinha relies on the concluding portion of what is quoted above. 27. Mr. Dey reverts to the correspondence prior to the suit and contends : all that the defendants say in their solicitor's letter of September 21, 1949, (D. D. 5), about the character of the tenancy, is that they have a right to occupy "292/4/l". What right ? Nothing like any permanent right is pleaded, concludes Mr. Dey. The answer to such an approach is what I have said in paragraph 27 ante. Upon all facts put together, does the true inference of a permanent tenancy follow ? What right ? Nothing like any permanent right is pleaded, concludes Mr. Dey. The answer to such an approach is what I have said in paragraph 27 ante. Upon all facts put together, does the true inference of a permanent tenancy follow ? If it does (as it does here), non-mention of permanent tenancy in the solicitor's letter appears to be of the least materiality. Even as it is, the right to be where they are, in defiance of the notice to quit, which it is said, the notice-giver has no right to give, has been mentioned. How far is that from assertion of a permanent tenancy ? Not very. Still, it would have been better if there had been a clear assertion to that end. The same question again : does the legal concept of a permanent tenancy emerge upon all facts put together, no matter that the solicitor's letter avoids using the expression : permanent tenancy ? The same answer too : it does. And there the matter should rest. 28. A rent-receipt records only the mode of payment, as Mr. Sinha rightly urges. So, recording of monthly payments there will not make it a monthly tenancy. In cases of this type, there cannot be any hard and fast rule. Each case must depend on its facts and circumstances, as Maclean, C. J. points out in J. Winterscale's case (supra. The true inference from the facts and circumstances, I have catalogued above, is, and can only be, that the defendant' tenancy is permanent, not precarious, the existence of Lord Shiva on the disputed land not tilting this inference one way or the other. I, therefore, find the first issue in favour of the defendants 29. The second issue, touching the notice, - quite a good notice at law -, does not, therefore arise. I find so. 30. The third issue - the general one on reliefs-merits the finding that the plaintiffs are disentitled to any. In the result, the suit fails and do stand dismissed. 31. IN all circumstances here, I direct each party do pay and bear its costs, save that the plaintiffs do pay costs of the guardian ad litem, which I assess at a consolidated sum of Rs. 300/ -. Certified for two counsel.