1. It is not necessary to reserve judgment & keep back my decision from the parties in this case. The facts giving rise to the appeal are simple but the law argued at the Bar is not as simple. The pltf-resp, filed a suit in ejectment—out of which this appeal arises—in respect of an extent of 136 of an acre in C.S Plot No. 2007 in Cuttaok Town, against the defts. alleging that they were darpattadars under him in respect of this property. The pltf. served a notice to quit on 19-1-46 & filed the suit a month later. His case was that the deft, is a tenant-at-will & is liable to be evicted at any time. The deft, pleaded that he had a house on the suit holding for at least 70 years & had acquired permanent occupancy right in the land, that the notice to quit was neither proper nor duly served upon him, & that he is protected from eviction by virtue of the recent amendment to Section 236 of the Orissa Tenancy Act, by Act X [10] of 1946. Exhibit A, the Current Settlement Khatian shows that the status of the deft, in respect of the suit land is that of a dar-pattadar & that of the pltf. Madhyasatvadhikari.

2. The learned Munsif found that the origin of the tenancy was not known but that the deft, had been in occupation of the land for over 70 years. He also found that the original lease was for building purposes & that it contained permanent structures, that the defts. had been in possession from father to son for three generations, paying a uniform rent throughout. He further found that the documents relied on by the pltf. did not prove that there was any variation in the amount of rent paid & also observed that he was not inclined to place much reliance on the genuineness of the rent receipts. The learned Munsif recorded a further finding that the notice to quit (Ex. 3) was invalid as it had not been signed by or on behalf of the pltf. The pltf.'s suit was accordingly dismissed.

3. On appeal the Addl. Subordinate Judge differed from the finding of the trial Ct. that the defts. had acquired a right of occupancy on a permanent basis. In his view the rent had varied at different times, there was no evidence to prove payment of a uniform rent & no formal notice to quit was necessary. He accordingly allowed the pltf.'s appeal & gave a decree in his favour.

4. In second appeal it is urged for the defts. firstly, that the lower appellate Ct. erred in appreciating the evidentiary value to be attached to Ex. 2 & 2-a, Exs. 5 series & Ex. 6 & that the correct inference to be drawn from these documents ought to have been that the pltf. had failed to prove that there had been a variation in the rent paid; secondly that the holding was an agricultural holding, to start with, & though the lease of a portion of the holding was for residential purposes the lease itself should have been deemed to be a lease of agricultural land only &, as such governed by the provisions of the Orissa Tenancy Act; and thirdly that the recent amendment to Section 236 of the Act, by Act X[10] of 1946 affords protection to all tenants of homesteads irrespective of the nature of the holding.

5. So far appreciation of the documentary evidence is concerned it is pointed out by Mr. De, learned counsel for the pltf., that the finding recorded by the Ct. below is conclusive & is not open to challenge in second appeal. The documents relied on by the pltf. are Exs. 2 & 2.a, being counterfoils of certain rent receipts, Exs. 5, 5.c, being wasilbaki papers, & ex. 6, the rafa book. The trial Ct. critically examined these papers & particularly the manner of their production which seemed suspicious, & held that the father of the pits, was realising a rent of Rs. 2 uniformly. With regard to Exs. 5, 5.b & 6.c, the trial Ct. particularly noticed that the rent of Rs. 2/4 shown therein appertained to 16 decimals of land—a fact which appears to have been ignored by the lower appellate Ct. The lower appellate Ct. appears to have proceeded on an assumption that the entries in all these documents, purporting to be thirty years old, must necessarily be correct. No such presumption need necessarily attach to old documents. All that Section 90 of the Evidence Act, lays down is that a Ct. may presume that such documents have been written or attested by the person who purports to have written or attested them. In this case, as the trial Ct. has observed, the writer of these papers was alive & yet he was not called into the box to prove these papers. With regard to Exs. 2 & 2.a, which purport to show that a sum of Rs. 2/8/0 was paid by the defts. through one Bhagwan Mohanty, an agent of pltf., they, too, have not been properly proved as the agent was not examined. Mere production of these documents without anything more cannot therefore carry the case of the pltf. very far. The lower appellate Ct. appears to have ignored this aspect of the matter & assumed that the mere production of these documents, purporting to be thirty years old, is sufficient proof of the correctness of the contents thereof. I am not satisfied that the assessment of the evidentiary value of these documents by the lower appellate Ct. is altogether satisfactory. I have myself gone through documents & find that they are not above suspicion or challenge. In any case, the mere fact that the entry in these papers purported to show that a higher rent was realised cannot outweigh the value to be attached to the Current Settlement entry, as evidenced by Ex. A which definitely shows that a sum of Rs. 2 was being realised as the annual rent on the holding. In the circumstances it must be held that there was no variation in the rent paid as alleged by the pltf. Some argument seems to have been addressed challenging the validity of the entry in Ex. A, on the ground of absence of any entry against the item “Settled Rent” in that document. I can find no difficulty in understanding the reason for the non-mention of the settled rent in this case, because it had already been settled between the parties at Rs. 2 & in the case of such tenancies it was not necessary for the Settlement Office to fix a separate rent unless the parties themselves challenged it & wanted him to fix a fair & equitable rent. The presumption attaching to the correctness of the entry in Ex. A has not been rebutted by such evidence to the contrary as can be accepted as wholly reliable.

6. The lower appellate Ct. confined itself to a discussion of the rate of rent only as the other points found in favour of the defts. were not seriously challenged in appeal. Mr. De points out that the presumption attaching to the entry in the Court (current?) Settlement Record cannot apply to a non-agricultural holding. That is a perfectly sound proposition. But it is not admitted in this case that the plot in dispute is a non-agricultural holding, I shall refer to this point later. The lower appellate Ct. did not attach value to Ex. 4, M.C, acknowledgment showing receipt of Rs. 6 from the defts. towards rent of the years 1943 to 1945, on the erroneous impression that only production of rent receipts is proof of payment of lent. Exhibits 2.a & 2.b were accepted at their face value because the defts. called for the rent receipts in the possession of the pltf. Exhibits 5, 5.b & 5.c & 6 were accepted & the entries therein were used in proof of the payment of rent because the documents were thirty years old. But, as I have said earlier, the fact that the entries in Ex. 5 series related to 15 decimals of land was lost sight of. These documents were produced by P.W 2 although he had not been summoned, & appear to have been almost thrust upon the defts. The learned lower appellate Ct. seems to have laboured under the impression that unless the defts. produced the rent receipts, their case of payment of a uniform rent could not be accepted. This is not the correct way to approach the question. The pltf. having come to Ct. to eject, it was heavily upon him to prove the nature of tenancy of the defts. & he cannot make out his title on the failure of the defts. to establish affirmatively that they have been paying rent at a uniform rate though that is no doubt a material element in ascertaining the character of their tenancy especially when they had set up a permanent title. I am, therefore, unable to accept the finding of the learned Subordinate Judge that the rent paid in respect of the suit holding was variable, & am inclined to agree with the finding of the learned Munsif that a uniform rent of Rs. 2 per year had been paid by the defts. & their ancestors as shown in ex. A.

7. The next point urged is whether this is a lease governed by the provisions of the Orissa Tenancy Act or whether it is governed by those of the T.P Act. Exhibit 1, dated 14-3-1916 filed by the pltf. shows that he purchased under it 8 & odd acres of Mafi-Kharida lands & 2 acres of Lakhrajbajiaftidari lands. All these were agricultural lands at the time of purchase. The sale deed Ex. 1 recites that the lands were sold & that the purchaser could cultivate them himself or get them cultivated by others. The holding on which the deft.'s house stands was, therefore, agricultural land at the time of the sale in 1916 & was recorded as agricultural land. Accordingly, the rent for the lands came to be settled as if they were agricultural holdings, & the status of the defts. was shown as that of occupancy raiyats while that of the pltf. as an intermediate tenure-holder. The contention put forward on behalf of the pltf. is that if the lease was granted not for agricultural purposes but for other purposes like the putting up of a building on the land, the lease would be governed by the T.P Act & not by the Orissa Tenancy Act the land having ceased to be agricultural land. There is, however, authority for the contrary view see Asraf Ali v. Emperor, 27 I.C 839 : (A.I.R(2) 1915 Cal. 784 : 16 Cr. L.J 215), Abdul Karim v. Abdul Rahman, 13 I.C 364 : (15 Cr. L.J 672), Babu Ram v. Mahindra Nath, 8 C.W.N 454 and Ram Pada v. Atore Dome, A.I.R(12) 1925 Cal. 202 : (84 I.C 743). The way in which such holdings have been treated during settlement operations makes me think that the status given to pattadars, dar-pattadars & dar-darpattadars, is very much like that of ‘chandna’ holdings. For the purposes of the Tenancy Act they have been treated as if they were agricultural holdings & the purpose of the lease is agricultural. The fact that the suit land along with other situated in a temporarily settled area was surveyed & the rents settled would show that the relations between the parties are governed by the provisions of the Orissa Tenancy Act; and as the local legislation regulates the relations between landlord & tenant the T.P Act would not apply.

8. Even if the contention of Mr. De were to prevail, the tenancy of the defts. would be a lease from year to year as the rent reserved is annual; and it would be anomalous to hold that though the rent fixed is annual the tenancy is from month to month merely because a house stands upon the holding. Mr. De's contention is that if the lease is held to be governed by the T.P Act the status of the tenant is no better than that of a tenant-at-will. There is considerable force in this argument because admittedly there is no registered document evidencing the lease; but it is for the pltf. himself who wants to eject, to show that the tenancy commenced after the T.P Act came into force. On the other side, it is argued that in view of the finding of the learned Munsif that the tenancy has been in existence for at least 70 years the legitimate inference should be that the land was granted for building purposes, prior to the passing of the T.P Act.

9. There is however, yet another difficulty in the way of the pltf. Even if his contention were to be accepted, namely, that the tenancy is not of a permanent character, but in only that of a tenancy-at-will in the absence of a contract to the contrary, the pltf. before terminating the tenancy under the T.P Act should serve a proper notice to quit on the deft. It may be that a formal notice may not be necessary if the demand for possession is made & reliance is placed by Mr. De on the case Ram kishun v. Bibi Sohila, A.I.R(20) 1938 Pat. 661 : (145 I.C 667) which follows Ramdhani Gope v. G.V Scott, A.I.R(12) 1925 Pat. 256 : (85 I.C 77) for the view that no notice is necessary in the case of a tenant-at-will. The decision in the latter case turned upon the construction of the document which itself stipulated that no notice would be required before termination. That decision must, therefore, be confined to the facts of that particular case & cannot lend support to the view that in every case of a tenant at will the landlord can straightway re-enter without even making a demand for possession. In casts like the present, where the defts. have put up a dwelling house & have been proved to have remained in occupation of the land for as long as 70 years, paying a uniform annual rent, the tenancy cannot, in my opinion, be terminated without a reasonable notice being served on them. Unfortunately for the pltf. though Ex. 8 purporting to be a notice was served on the deft, it was not signed either by the lessor or his agent, & therefore no value can be attached to this document. I looked for evidence on the side of the pltf. to see if any demand for possession was made but Mr. De has been unable to point to any such evidence. Apart from the fact, therefore, whether the tenancy is agricultural or not & whether it is governed by the Orissa Tenancy Act or the T.P Act the fact that no valid notice was served on the defts. would be sufficient to dispose of this suit.

10. Another & more formidable argument has been addressed on behalf of the defts. & this is based on the applicability of Section 236 of the Orissa Tenancy Act, as amended by Act X [10] of 1946. That section is retrospective in its operation & will govern the facts of this case. It lays down that the incidents of tenancy of any tenant in respect of his homestead shall be regulated by the provisions of the Act applicable to occupancy raiyats. Whatever might have been the position before the Act came into force, the Legislature has clearly conferred the status of permanency in their holdings, on all tenants of homesteads. It does not matter whether the, holding was, at its inception, agricultural or otherwise. For the purpose of the Act, all home, stead tenancies are put on the same footing as agricultural tenancies & the relations between the landlord & tenant which had formerly been regulated by custom & usage have been declared to be regulated by the law applicable to occupancy raiyats. In this view of the matter, the defts. will be protected from eviction as they have acquired the status of occupancy raiyats under the Amendment Act X[10] of 1946. My conclusions, therefore, are that the tenancy of the defts. is governed by the provisions of the Orissa Tenancy Act, that they had a permanent tenancy right in the suit holding before the Amendment Act X [10] of 1946 came into force & that they have been given statutory protection subsequently, that the notice to quit purporting to have been served by the pltf. is of no effect & that the pltf. has not made out his case for ejecting the defts. The judgment of the learned Subordinate Judge is accordingly set aside & that of the learned Munsif restored & the pltf.'s suit shall stand dismissed. This appeal is allowed with costs throughout. Leave to appeal is granted.

R.G.D

11. Appeal allowed.