Sinha, J.:— These three appeals arise out of three different suits, which were instituted by the common plaintiffs, except that plaintiff No. 2 of Title suit No. 22/74 of 1948 figures as a Pro forma defendant in the other two suits, for eviction of the defendants after notice to quit had been served upon them. The suits have been decreed by both the Courts below.

2. There is no dispute about the plaintiff's title; the dispute is in regard to the right of the plaintiffs landlords to eject these defendants, who claim permanent rights in the lands leased to them, and, in the event of eviction, they claim compensation. As the facts are slightly different in each case, they will have to be stated separately.

3. Second Appeal No. 319 of 1950 arises out of Title Suit No. 22/74 of 1948 and the corresponding Title Appeal No. 91/72 of 1949. One Prabodh Kumar Chandra had executed a kabuliyat in 1921 in favour of the New Birbhum Coal Company Ltd., the predecessor-in-interest of the plaintiffs, for 10 bighas of land, at an annual rental of Rs. 50/-, besides cess including the land in suit. The leasehold of Prabodh Kumar Chandra was recorded in Khata No. 54. Out of this land, he had verbally surrendered 3.11 acres. The original defendant of this suit had purchased from the said Prabodh Kumar Chandra 1 bigha 10 kathas of land out of plot No. 346/365 by a deed of sale dated 2-11-1939, at an annual rental of Rs. 7/8/- besides cess. Second Appeal No. 1510 of 1950 arises out of Title Suit No. 196/91 of 1948/49 and the corresponding Title Appeal No. 239/22 of 1949/50. During October, 1920, one Prasadi Beldar obtained settlement of schedule A lands from the predecessor-in-interest of the plaintiffs for residential and homestead purposes at an annual rental of Rs. 4/2/-, and had executed a kabuliat on 14-10-1920, in favour of the then landlord. During the cadastral survey, the land was recorded in the name of Prasadi Beldar in khata No. 51. According to the information available with the plaintiffs, Prasadi Beldar had transferred the land to defendants 1 and 2. According to the plaintiffs, in law the lease was a lease of monthly tenancy liable to be terminated on service of 15 days' notice.

4. Second Appeal No. 1974 of 1950 arises out of Title Suit No. 217/92 of 1948 and the corresponding Title Appeal no. 254/23 of 1949/50. In this suit, from the aforesaid Prabodh Kumar Chandra, out of 10 bighas of land of which he had taken settlement as per kabuliyat of 1921, the defendants had purchased 8 kathas of land by a registered sale deed dated 2-11-1939, on the terms and conditions that the defendants would be bound by the Kabuliyat executed by the said Prabodh Kumar Chandra.

5. In each of these cases, according to the plaintiffs, the position of the defendants was the position of a monthly tenant, and they were liable to be evicted; and notices of eviction had been served upon the different defendants.

6. The defence in each case was that the defendants had acquired permanent rights as per kabuliyats aforementioned and that according to the terms of the kabuliyats, in case these lands were needed for mining purposes, the defendants were entitled to compensation for the structures built upon the lands.

7. The Courts below have concurrently held that no valid lease was created in favour of the defendants or their predecessors-in-interest inasmuch as there was no lease granted by the landlord; and, as the defendants were paying rents to the plaintiffs or their predecessor-in-interest, the tenancy in favour of these defendants was a tenancy from month to month terminable by 15 days' notice to quit. It was also held that the defendants were monthly tenants & their tenancy had been terminated by service of proper notices by the plaintiffs. So far as the question of compensation was concerned, it was held that the defendants were not entitled to any compensation.

8. Second Appeals Nos. 319 and 1974 of 1950 were argued in this Court by Mr. K.D Chatterji, and the other appeal No. 1510 of 1950, by Sir Sultan Ahmad. The points urged by these two learned counsel, however, were the same, namely, (1) that the defendants having entered into occupation of the lands as per registered kabuliyats and having remained in possession for more than 12 years in assertion of a permanent tenancy, they must be held to have acquired, by prescription, a right of permanent tenancy; and (2) that, if the defendants had built permanent structures on the land, they were, entitled to compensation upon eviction.

9. Mr. K.D Chatterji who addressed the main argument placed his case with great ability and from all possible points of view, and all the available authorities were placed before the Court. It was argued that the defendants could acquire, by prescription, the limited interest of permanent tenants under the plaintiffs or their predecessor-in-interest. Mr. B.C De, appearing on behalf of the other side, controverted this proposition of law.

10. In view, however, of the facts found or admitted, the question of adverse possession does not arise in any of these cases, and, therefore, the larger question, whether, in law, there could be acquisition of rights of a permanent tenant by prescription, does not fall to be decided in these cases. So long as Prabodh Kumar Chandra (in Second Appeals Nos. 319 and 1974) and Prasadi Beldar (in Second Appeal No. 1510) were in possession, there is no material on record to hold that, excepting payment of rent, they did anything from which an assertion of a permanent tenancy could be inferred.

11. It is said that Prasadi Beldar had constructed a house on the land which he sold to the defendants on the 10th November, 1941, but no effort has been made to show as to when Prasadi had built his house. The suits have been brought in 1948, and there is no evidence that the house was built more than 12 years before the institution of the suits. Apart from this, so far as Second Appeals Nos. 1510 and 1974 are concerned, no issue had been raised in the respective suits, giving rise to these appeals, about adverse possession of the defendants or that the suits were barred by time. Similarly, in the other appeal, Second Appeal No. 319, no question was raised about adverse possession, but in this case there was an issue as to whether the suit was barred by limitation (Issue No. 3).

12. It appears, however, that this issue was not seriously pressed, and the Court's finding on issue no. 3 was that the suit had been instituted within 13 months from the date of accrual of the cause of action, and, therefore, the suit was within time. In appeal before the Court below, the point of limitation was not pressed. It was argued by Mr. Chatterji that, even though no issue was, raised, this matter could be agitated in this Court, and the Court could decide that question in favour of the defendants on the materials available on record.

13. I have already indicated, however, that there are no materials on record on which this Court can arrive at a finding that there was acquisition of any rights by the defendants by prescription. In that view of the matter, it would serve no useful purpose to pursue this matter any further. It must be held, therefore, that there is no substance in the first point. In the view which I have taken, it is not necessary for me to decide as to whether a person, who is admittedly in possession as a lessee, can prescribe against his landlord to the limited extent of acquiring a permanent tenancy.

14. So far as the question of compensation is concerned, this matter is concluded by the authority of this Court in Darbari Lal Mudi v. Raneeganj Coal Association, Ltd.*, ILR 22 Pat 554 : (AIR 1944 Pat 30) (A). It was held in that case, after reviewing a number of decisions of this Court and of other Courts, that in similar circumstances the rights and liabilities of a lessee were governed by section 108 of the Transfer of Property Act, and, under clause (h) of that section, a lessee was only entitled to remove all the things which he had attached to the earth, but was not entitled to compensation.

15. It was argued, that the principles and the provisions contained in section 51 of the Act ought to apply, as were applied in other cases of lessees. In my opinion, however, section 51, or the principle involved in it, has no application to the case of a lease; that section applies when the “transferee of immovable property makes any improvement on the property, believing in good faith that he is entitled thereto,…” It does not speak of a lease specifically provided for in section 108 of the Transfer of Property Act and this specific provision must, therefore, apply.

16. It was pointed out in the aforesaid Patna case ILR 22 Pat 554 : (AIR 1944 Pat 30) (A), that the cases which had decided that a lessee was entitled to compensation, in circumstances similar to the present one, had taken no notice of the provisions of section 108(h) of the Transfer of Property Act. I respectfully agree with that decision, in view of the fact that a specific provision has been enacted in section 108(h), and there is no scope for the application of the principle of section 51 of the Act or of any other equitable principle. Equitable principle cannot possibly be allowed to defeat the statute.

17. It was contended further that there was a contract in the kabuiiyats for payment of compensation, and, as the plaintiffs themselves have relied upon that term of the Kabuliyat they must be held bound by that contract. The kabuliyat has been rightly held by the Courts below as an invalid contract, because it is not in accordance with law, as embodied in section 107 of the Transfer of Property Act. It is not a lease, as there is no document executed by the lessor, which was necessary even under the original section, as it stood before the amendment of 1929; and, not being a valid contract in law, the terms embodied in the kabuliyat cannot be proved by any other evidence.

18. The plaintiffs in their plaint in Title Suit No. 22/74 of 1948, giving rise to Second Appeal No. 319 of 1950, had not accepted the terms of the kabuliyat in regard to payment of compensation, but merely said, in paragraph 15 of the plaint, that Babu P.K Chandra covenanted to give up possession of the said lands whenever required to do so. In my opinion, this averment in the plaint does not amount to acceptance of the terms of the Kabuliyat regarding payment of compensation.

19. In that view of the matter, this submission in regard to compensation must also be repelled.

20. In the result, the appeals are dismissed; but, in the circumstances of these cases, each party will bear his own costs of these appeals.

21. Dayal, J.:— I agree.

V.R.B

22. Appeals dismissed.