Dhavle, J.:— These are two appeals from the decisions of the Subordinate Judge of Arrah reversing two original decrees in the view that the two non-agricultural tenancies to which they related were permanent.

2. Second Appeal No. 529 arises out of a suit relating to the tenancy of “3 decimals” (.03 acre) of land in Survey Plot No. 1654 appertaining to Khata No. 330, situate in village Bhojpur Kadim, Thana Dumraon. The suit was brought by the sons and grandsons of one Gaya Ram who, in April 1930, purchased this plot under a registered kebala from Mt. Laungi, widow of one Ram Lagan Teli. Plaintiffs' case was that the land, which in the Record of Rights of 1912 is shown as included in the ghair mazrua khata of the malik (defendant 1), was permanently settled by the landlord with Ram Lagan Teli, on an annual rent of 5 annas 6 pies, for residential purposes. Ram Lagan erected a pucca house on the plot and lived in it until he was succeeded by his widow Mt. Laungi who, in 1930, sold the property to Gaya Ram. In 1935 the landlord brought a suit for ejectment against Gaya Ram's brother Gajadhar Ram and plaintiffs 1 and 2, sons of Gaya Ram (deceased) as minors under the guardianship of Gajadhar. These plaintiffs were, however, of age at the time and had no notice of the ejectment suit of defendant 1, plaintiffs therefore claimed that they were not bound by the decree for ejectment obtained by defendant 1, and they sought recovery of possession of the 3 decimals of land. The defence was that there was no permanent settlement with Ram Lagan Teli at all, that Mt. Laungi whose possession was shown in the Record of Rights was at best a tenant-at-will, that when she left the village, the defendant was entitled to recover khas possession, and that in the suit for ejectment brought by him the present plaintiffs 1 and 2 were by mistake described as minors but were fully represented by their uncle Gajadhar Ram, with whom they were living jointly.

3. The trial Court dismissed the plaintiffs' suit on the grounds that the decision in the landlord's suit of 1935 was res judicata against them and that the tenancy of Ram Lagan was not permanent and not her it able or transferable. On appeal the Subordinate Judge differed from the trial Court on both points and passed a decree in favour of the plaintiffs for recovery of possession. He disallowed an incidental claim for the price of materials of a house demolished by defendant 1 in execution of his decree, but it is unnecessary for the purpose of this appeal to go into the details of this claim. Defendant 1 appeals.

4. It has been contended on behalf of the appellant that the decision of the lower appellate Court holding that Ram Lagan Teli had a permanent tenancy is wrong; and in support of this contention the learned advocate has cited 58 Cal. 1235.1 The lower appellate Court has inferred a permanent tenancy on the authority in 5 C.L.J 1782 in which it was held that:

“Where the origin of a tenancy, not agricultural in nature is not known, it is held and enjoyed for a length of time, say from fifty to sixty years, substantial buildings are erected on the land let out and enjoyed uninterruptedly for that length of time by payment of uniform rent without alteration”

(to quote from the head note), the Courts will, in the absence of anything to the contrary, be justified in presuming that it was granted for building purposes and that the grant was of a permanent character, the question being one of inference from facts with the burden of proof on the tenant. It has however, been held by their Lordships of the Judicial Committee in 8 Lah. 5733 that the question whether a tenancy is permanent or precarious is in such cases not only a legal inference from facts, but that it is also not itself a question of fact, and could be described as a mixed question of law and fact with the warning that, in so far as it depends upon fact, the finding of the Court of first appeal must be accepted. This has been taken in Calcutta (see 56 Cal. 7384 and also in this Court 20 P.L.T 5795 decided by my Lord the Chief Justice and Khaja Mohammad Noor, J.) to mean that the inference of permanency can only be drawn where the facts point irresistibly to such a conclusion, and that where the facts are equally consistent with permanency or a tenancy-at-will, then permanency cannot be inferred. The facts found in the present case are that Ram Lagan, a non-agriculturist, took a settlement of the land for building purposes about 45 years ago and remained in possession till death, when he was succeeded by his widow, who continued to live in the house built by Ram Lagan till it fell down, that she sold the land to Gaya Ram, and that the annual rent of 5 annas 6 pies was paid to the landlord by Ram Lagan and Mt. Laungi, but not by her transferee. The alleged permanent settlement with Ram Lagan was not supported by any registered lease, such as is required by Section 107 of the Transfer Property Act, in cases of letting for residential purposes after the passing of this Act, and the learned Subordinate Judge failed to notice that the tenancy in 5 C.L.J 178 which he applied to this case dated from before the Transfer of Property Act. Whether a tenancy came into existence before or after the passing of this Act, the landlord defendant is prima facie entitled to the possession of his ghair mazrua land subject, of course, to such right (if any) as the tenant may show to have been conferred upon him by the landlord. The right set up by the plaintiffs in the present case was the right of a permanent tenant, and there was no dispute that Ram Lagan was not an agriculturist. The permanent right alleged can only be based, as was pointed out in Ariff'a case, (at p. 1247 of the report in 58 Cal. 1) “either upon contract express or implied, or upon some statement of fact grounding an estoppel.” So far as any contract is concerned, it was ruled by their Lordships of the Judicial Committee in that case that in the absence of a registered instrument there can, under Section 107 of the Transfer Property Act, be no valid contract at all. Nor can the oral evidence that the settlement was for building purposes, which has been accepted by the lower appellate Court, give rise to any estoppel preventing the landlord from denying that the tenancy was permanent. As long ago as 1878 it was decided in 3 Cal. 696,6 that it is not correct to say that:

“By the law of this country the right of a homestead tenant to occupy his holding permanently becomes absolute so soon as he is allowed to erect his dwelling house by his landlord, whether he holds under a verbal agreement or a written lease” and in 56 Cal. 738 (already referred to), Rankin, C.J pointed out, among other general considerations of fact applicable to Indian conditions prior to the Transfer of Property Act, that:

“The fact that a tenancy was for residential purposes in no way involved of itself that the tenant's right to the land was to be permanent, as the land could be used for kutcha structures to be erected by the tenant.”

5. It cannot be said that in this respect the position has changed since the passing of the Transfer of Property Act. The learned Subordinate Judge has referred to the fact that in the present case Ram Lagan built a pacca house on the plot but a tenancy created only 45 years ago without a registered instrument, though for residential purposes, cannot become a permanent tenancy merely because the tenant builds a pacca house on the land let without any protest from the landlord—mere inaction on the part of the landlord cannot plainly take the place of the registered instrument which is essential under Section 107 of the Transfer Property Act, for the creation of any tenancy “for any term exceeding one year.” The learned Subordinate Judge remarks that “nobody can conceive of building a residential house unless the tenancy was permanent” but it is obvious that the tenant's rights cannot be enlarged in defiance of S. 107 merely because having taken a settlement specially for building purposes he proceeds to build a pacca house possibly under the impression that he has obtained a permanent tenancy. Reference has been made by the lower Courts to 14 P.L.T 6857 in which the defendants had erected a pacca structure on “ghair mazrua malik” land, which as in the present case, had been shown in the record of rights as in the possession of their predecessors-in-title. It was held in that case that the person whose possession was so recorded were at most tenants at will having no transferable rights in the land. The learned Subordinate Judge has distinguished 14 P.L.T 685 on the ground that in the present case the settlement with Ram Lagan 45 years ago was for residential purposes. I have already shown how this latter circumstance is insufficient, without a registered instrument, to create a permanent tenancy. The record of rights showing the possession of Mt. Laungi cannot be taken to define her rights for she was not an agricultural tenant, and the record of rights deals with the rights of agricultural tenants only: see cl. (b) of Section 102 of the Bihar Tenancy Act. The facts found by the lower appellate Court that Ram Lagan paid the rent fixed and was in possession of the land till his death, and after him his widow Mt. Laungi until she transferred the land to Gaya Ram, the possession of husband and widow extending to about 35 years and that Ram Lagan, having taken the land for residential purposes, built a pucca house on it and lived in it, are, in my opinion, quite insufficient in the case of a tenancy admittedly created after the passing of the Transfer of Property Act to give rise to the inference that the tenancy was a permanent one and, therefore, heritable and transferable, as claimed by the plaintiffs. Their suit against the landlord appellant should therefore have been dismissed, and the learned Subordinate Judge, in my opinion, erred in reversing the dismissal by the trial Court and decreeing possession. I would allow this appeal and reverse the decree of the lower appellate Court and dismiss the suit with costs in all Courts.

6. Second Appeal No. 631 relates to a tenancy of “2 decimals” of land, being survey plot No. 379 of khata No. 249 in mouza Rahia, thana Dumraon. The khata is the “ghair mazrua malik” khata and plaintiff owns the proprietary interest to the extent of one-third, while defendants 4 to 14 own the rest. Plaintiff's case was that one Jumrati Mian used to live on this plot which is shown in the record of rights of 1911 as having a house with a sehan standing thereon and in Jumrati's possession, that after his death the plot was occupied by the landlord defendants, and that a year before the institution of the suit (in 1938) those defendants allowed defendants 1 to 3 to live in the house. The plaintiff was not agreeable to this arrangement and as defendants 1 to 3 began to construct a new room in the house and amalgamate it with another house of theirs on an adjoining plot, he sued for recovery of possession along with the landlord defendants after ejecting defendants 1 to 3 and demolishing the new structures erected by them. The suit was contested by defendant 1 alone, whose case was that Jumrati had a permanent interest in the house of the disputed land and that his interest had devolved on defendants 1 to 3, besides other heirs of Jumrati. He denied the construction of a new room by these defendants and said that as a matter of fact one old room of the house had fallen down, and that they had only rebuilt it. The trial Court disbelieved the story of a permanent settlement of the land and house with Jumrati and decreed the suit. On appeal the Subordinate Judge held that Jumrati's tenancy was of a permanent nature, and that defendants 1 to 3 were among his heirs. As to the plaintiff's case that defendants 1 to 3 had been recently allowed by the landlord defendants to occupy the land, the learned Subordinate Judge preferred to accept the defence story that after Jumrati's death the defendants had continued in possession of the house as his heirs, but said that if defendants 1 to 3 had been let into occupation by the landlord defendants, as alleged by the plaintiff they would, as the sons of a settled raiyat of the village, acquire an occupancy right in the land and could not be ejected. He therefore reversed the decision of the trial Court and dismissed the suit. Plaintiff appeals.

7. It has been contended for the appellant that the case of an occupancy right was not pleaded in the trial Court and is against the record of rights. The record of rights which is in evidence covers not merely the ghair mazrua malih khata, khata No. 249, in which the land in dispute is included, but also khata No. 248 which shows the father of defendants 1 and 2 as a settled raiyat of the mouza. But even so the learned Subordinate Judge was clearly in error in thinking that Section 21 of the Bihar Tenancy Act, could have any application to the land in dispute, for, it was not the case of the plaintiff that this land was settled with defendants 1 to 3 to be held by them as raiyats; the land was ghair mazrua and had a house and Rehan on it, and the settlement, such as it was, could only be for residential purposes, to say nothing of the fact that it was not a settlement made by the sixteen anna landlords. As to the settlement with Jumrati, no registered lease was produced in support of the claim that it was permanent, it was apparently not even alleged that the settlement was made by means of such a document. The learned Subordinate Judge says that though the trial Court “did not accept the defendants' story of permanent settlement as no document was produced, it is a matter of common experience that in times of yore and during the pre-survey days most of the settlements were oral at their inception.”

8. There is no suggestion, however, that the settlement with Jumrati was made before the Transfer of Property Act, and under S. 107 of this Act no settlement for any term exceeding one year can be made except by a registered instrument. The record of rights only shows Jumrati as in possession of the land with the house and sehan on it, and upon this the learned Munsif observed that if Jumrati had a permanent interest in the disputed land, the column for incidents would have mentioned whether the land had been settled permanently with Jumrati and whether it was to be rent free. This is erroneous. In 14 P.L.T 685 (to which we have referred in dealing with Second Appeal No. 529) reference was made to the Survey and Settlement Rules regarding how the possession of homestead lands by persons who are not raiyats is to be shown in the “ghair mazrua maliks” khatians without any specification of rent; if the record of rights shows the possession of Jumrati Mian over this ghair mazrua malih plot with its makan mai sehan kita tin, without anything further regarding the rights of the occupant, the reason is that the entry was not meant to be a decision as to the rights of the landlord and occupant respectively, as the tenancy such as it was, was non agricultural, and, therefore, fell outside the purview of a record of rights under Chap. 10, Bihar Tenancy Act. The learned Subordinate Judge says that 14 P.L.T 685 Was cited to him as authority for the proposition that the construction of a mud house on the plot did not imply a parmanent tenancy, and observes:

“But in a later case of our own High Court reported in 20 P.L.T 579 their Lordships held that the construction of a kutcha or a pucca house depended on the means of the occupant. All that was necessary to show was that the structure was substantial in nature such as no poor man would think of building a house unless his interest in the land was secured. Admittedly in the present case the defendants are weavers by caste and they cannot afford to build a pucca house. Construction of a mud house will be sufficient to indicate that they built it under the bona fide belief that their interest in the land and the house was permanent.”

9. It seems to me that the learned Judge below has here fallen into more than one error. There is no foundation for suggesting any conflict between the ruling in Ramkishun's case in 14 P.L.T 685 and the decision in 20 P.L.T 579. The learned Subordinate Judge should have noticed that what was dealt with in the latter case was a tenancy of unknown origin which had been in existence for over a hundred years, the tenant having built upon the land what appeared to be a substantial structure for a man of his position and built it very many years ago. Tenancies created before the passing of the Transfer of Property Act are not hit by S. 107 or any other provision of this Act—see S. 2(c). The present, moreover, does not appear to be a case of the tenant himself building anything kutcha or pucca, substantial or otherwise, on the disputed land, for according to the plaintiff there was this plot of land with a house on it, and Jumrati used to live thereon as a tenant-at-will, and both the lower Courts set out the defence case as one of Jumrati having had “a permanent interest in the house on the disputed land.” I will presently recur to this aspect of the case, and may observe for the present that the learned Judge below has drawn his inference of permanency on lines more adapted to cases of tenancies of unknown origin created before the Transfer of Property Act, and in drawing this inference has proceeded on the footing that a tenancy which was oral at its inception must be permanent if the tenant has built on it a house of such a character as to indicate that he built it under the bona fide belief that his interest in the land and the house was permanent: How the permanency of otherwise of the tenancy before us is to be determined will appear from 58 Cal. 1235, which I have referred to in the other appeal. The judgment of the learned Judge below is also very unsatisfactory in other ways. After saying that two questions arise he lays down only one (1) Whether after the death of Jumrati which, according to the defendants, took place 25 or 26 years ago and according to the plaintiff 10 or 11 years ago, the house came into possession of the maliks as alleged by the plaintiff or the defendants continued in it as heirs of Jumrati? In his answer to the question so formulated, he does not (perhaps naturally enough) find whether Jumrati died 25 or 26 years ago or 10 of 11 years ago, but only finds—how, it is unnecessary to say—“that after the death of Jumrati the defendants continued in house as his heirs.” He then proceeds to infer the permanency of the tenancy from the house on the land because “if the tenancy had not been, permanent, Jumrati would not have thought of building a house thereon.” It does not, however, appear to have been even alleged in the written statement that Jumrati had built any house on the land. Nor has the learned Judge below referred to any evidence on this point and indicated his acceptance of it. He has hastily applied the law laid down in 20 P.L.T 579 without a legal finding that Jumrati had at all built on the land. He hag not even noticed that there is no mention of any rent anywhere in the case, though the tenancy of Jumrati is common ground. Such a tenancy can only be taken, especially if it was created after the Transfer of Property Act, to be a tenancy-at-will. Defendants 1 to 3 must, on the findings of fact of the learned Subordinate Judge, be taken to be among the heirs of Jumrati, but as a tenant-at-will Jumrati could have no heritable interest in the disputed plot with the house standing thereon, and therefore defendants 1 to 3 could take no interest in the property as his heirs. In the trial Court they spoke of adverse possession, but the learned Munsif was not satisfied with the evidence given by them on this point, and the lower appellate Court has not differed from the trial Court so far as this point is concerned. Now, plaintiff is admittedly a cosharer landlord, and though defendants 4 to 14 did not join him in claiming the ejectment of defendants 1 to 3 the learned advocate for defendant 1 has in this connexion pointed out that, on the contrary, several of the landlord defendants were represented in the lower appellate Court by the same pleader as defendants 1 to 3. It has long been settled that one of several cosharers of jamli property may partially eject a person who has intruded upon such property against his will, but with the consent of another cosharer, by obtaining a decree for possession of his share jointly with the intruder 7 Cal. 414.8 The present is not a case like 28 Cal. 223,9 in which it was laid down that where one cosharer landlord, in exclusive possession of a waste plot of land, although such exclusive possession may be held with the permission of the other cosharer landlord, leases it out to a tenant, who improves it without any objection on the part of the latter, it is not open to the latter to obtain khas possession of the land so improved, jointly either with the lessor landlord or with the tenant, but that he can only have a decree declaring his right and giving him possession through the tenant, for the proceedings in the trial Court show that the appellant objected to the new construction by defendants 1 to 3 without any delay and almost before it was complete. The decree of the trial Court, however, which was reversed by the lower appellate Court, was that the plaintiff do recover possession of the disputed land with the house along with defendants 4 to 14 after ejecting defendants 1 to 3 and also get the new room constructed by the defendants demolished. This dearly went too far in that it meant the total ejectment of defendants 1 to 3 even though defendants 4 to 14 had at least refrained from claiming ejectment in respect of their share.

10. I would accordingly reverse the decision of the lower Appellate Court dismissing the plaintiff's suit and restore the decree of the trial Court with the modification that the plaintiff will only recover possession of the disputed land jointly with defendants 1 to 3 to the extent of his one-third share. In view of the substantial success of the appeal, I would also give appellant his costs in all three Courts.

Harries, C.J:— I agree.

G.N/R.K

11. Order accordingly.