1. HAMOODUR RAHMAN, C. J.-The appellants in this case who are the successors-in-interest of one Babu Jasoda Lal Basak filed a suit against the respondents herein for the declaration of their title to the parcel of land, measuring about 12 Kathas and forming part of Municipal holding No. 5/1, Simpson Road, Kotwali, Dacca; for khan possession, manse profits, damages, a permanent injunction for restraining the respondents from entering upon or making any construction upon the said land, eviction of the respondents and the removal of all structures and obstacles raised thereon.
2. It was alleged in the plaint that on the 12th of January 1950, the respondents Nos. 1 and 2 had forcibly trespassed into a part of the aforesaid parcel of land which was then lying vacant and for this a complaint under sections 447, 352 and 504 of the Pakistan Penal Code had been filed in the Court of a Magistrate of Dacca. The respondents Nos. 1 and 2 had been summoned to appear therein but since communal disturbances broke out at Dacca in February 1950 the complainants were unable to appear in the case. The respondents were in these circumstances acquitted under section 247 of the Criminal Procedure Code with liberty to the complainant to file a fresh petition of ah complaint.
3. A fresh complaint was filed through another officer of the said Babu Jasoda Lai Basak and the respondents were again summoned but were ultimately discharged in view of the previous acquittal. Thereafter Jasoda Lai Basak himself died at Calcutta in 1953 and the officer of the said Jasoda Lai Basak who was dealing with his properties at Dacca also died on 1955, No suit could, therefore, be filed as the plaintiffs were unaware of the exact details of the properties of the said Jasoda Lai Basak but when the respondents came to know that the appellants were making preparations for the institution of a suit, they hurriedly set up pukka structures on the land. Hence the appellants were compelled to institute the suit, out of which this appeal arises, on the 29th of March 1957.
4. This suit was contested by the respondent No. 1 alone whose case was that he was a prominent businessm an of Calcutta who had amongst other businesses a profitable motor transport business under the name and style of Muslim Transport Agency Limited. He had after Partition, migrated to Dacca and was looking for a suitable place for starting a similar business here. Hence on coming to know of the vacant site in dispute he approached Babu Jasoda Lai Basak who, after some talk, agreed to grant a permanent lease of the said land to him on the annual rent of Rs. 396, commencing from the lst of January 1950, and a reasonable Salami or Nazar to be ascertained after measurement of the land. A regular deed of permanent lease was also agreed upon to be executed and registered after payment of the Nazar or Salami.
5. Owing to the exorbitant amount of Nazar demanded by Babu Jasoda Lai Basak the matter could not be finalized by the execution of the deed of lease. The criminal cases had beep instituted in order to put pressure upon him to agree to the terms of Jasoda Babu. . He was all along ready and willing to pay a reasonable Salami but the plaintiffs had been putting of the matter on one pretext or another for the last seven years. It is unlikely that if the respondents had been trespassers the plaintiffs would have kept quiet for such a long period. The trial Court, upon consideration of the evidence adduced on both sides, came to the conclusion that the plaintiffs' case that the defendant had forcibly trespassed into the land and was illegally occupying it, was false. The attempt of the plaintiffs to deny that Jasoda Babu did or could have had any agreement or talk with the respondent was also found to be false. It was found that negotiations had in fact taken place between Jasoda Babu and the respondent No. 1 and that the receipt had been duly signed by Madhabi Kumar Banarjee who was admittedly at the relevant time the Karmachari of Jasoda Babu. The factum of the agreement was also found to be supported by the evidence of a respectable witness, Mirza Faruqi, Assistant Superintendent, Pakistan Public Works Department, Dacca, who claimed to have been present at the time of the talk of the lease. The trial Court was, therefore, of the view that the respondents had been occupying tie land as lessees of the plaintiffs and had acquired the status of a non-agricultural tenant which was protected under the provisions of the East Bengal Non-Agricultural Tenancy Act.
6. On appeal, the High Court of East Pakistan, agreeing with the trial Court, came to the concurrent finding that "there was a concluded contract for permanent lease" but held that since the receipt did not indicate the terms and conditions of the lease and there was no registered instrument, no valid permanent tenancy had in law been created but only a tenancy from month to month, as this was neither an agricultural nor a manufacturing lease within the meaning of section 107 of the Transfer of Property Act. The tenancy was, accordingly, held to be governed by section 106 of the Transfer of Property Act as a mere monthly tenancy. The plaintiffs could, therefore, terminate the tenancy by a notice as provided by section 106 of the Transfer of Property Act.
7. It was not, however, considered necessary to express any view on the question as to whether the right of the respondents was protected or not under the East Bengal Non-Agricultural Tenancy Act.
8. From this judgment the appellants came up to this Court for special leave to appeal and this Court, while holding that the "High Court has found against the plaintiffs-petitioners on points of fact arising in the suit, agreeing in that respect with the findings of the trial Court" granted leave to consider "whether, in law, a permanent lease as held by the High Court can be construed out of the aforementioned solitary receipt", even though it was not the practice of this Court to grant leave to appeal "against concurrent findings of fact by the Courts below reached on due examination of the evidence".
9. Unfortunately the ultimate conclusion of the High Court had escaped the notice of this Court at the time of granting leave. The High Court, as earlier pointed out, had not held that a permanent lease had been created in the facts and circumstances of this case. All that the High Court had held was that although there was a "concluded agreement" for the grant of a permanent lease that agreement had not been given legal form. Hence no operative permanent lease had in fact been created.
10. The legal effect of what had been done by the parties, was according to the High Court, only effective for creating of lease from month to month, terminable in any of the ways mentioned in section 111 of the Transfer of Property Act. The question on which leave to appeal was granted does not, therefore, in our opinion arise for consideration in this case. Nevertheless since the learned Advocate, appearing in support of this appeal, has made repeated attempts to have the concurrent findings of fact of the Courts below re-opened in the guise of arguing that on the facts found the High Court could not in law have come to the conclu--sion that there was even a tenancy from month to month, we would like to mention that having examined the evidence, both oral and documentary, relied upon by the High Court, which has been extensively quoted in the judgment, we have come to the conclusion that the findings arrived at by the High Court were based upon evidence which could reasonably lead to the said conclusion.
11. The learned counsel next attempted to argue that even if the tenancy was a tenancy from month to month, it was for a period of one year only, namely ; the period for which the rent was accepted.
12. Thereafter the respondents were in the position of trespassers and should have been held to be so.
13. We are unable to agree. Once a person has been inducted as a tenant and a relationship of landlord and tenant is established, that relation--ship can only be terminated in accordance with law either by efflux of the stipulated period of the tenancy or where no such period is fixed by the service of a notice to quit. In the case of a monthly tenancy, in the absence of a contract or local law or usage to the contrary, this can only be done by service of a notice to quit in terms of section 106 of the Transfer of Property Act, which applies when the tenant is in possession without evidence of the terms of the letting. It is admitted that in the present case the receipt fixed no period and no such notice to quit was ever served. In the circumstances the tenancy did not terminate merely by reason of the fact that after a certain point of time the landlord refused to accept rent. It is not possible to accede to the contention that a landlord can by merely refusing to accept rent lawfully terminate a tenancy.
14. We are also in agreement with the High Court that where a tenant has been put into possession under an oral agreement to lease and the landlord has recognized his right by accepting rent there is a presumption of a lease under section 106 of the Transfer of Property Act and a notice to quit is necessary for terminating the lease. The contention that in this case the oral agreement coupled with delivery or possession was valid only for one year and thereafter the tenant was a tenant-at-will for a holding over could not be inferred as the landlord was from the beginning claiming that the respondent was a trespasser is not tenable in the facts and circumstances of the case. Both the criminal proceedings were commenced before the expiry of the year for which rent had been accepted and they were, on that account, bound to fail, for, the lease would in any event have been valid for one year. The point of time at which the notice should have been given or other action taken to terminate the tenancy was the last month of the said tenancy. By failing to take any such action the landlords could well be even deemed to have acquiesced in the tenant holding over on the same terms. When the existence of a relationship of landlord and tenant has once been proved and the landlord after the expiry of the lease neither takes rent nor brings a suit for ejectment for so long a period as six years, as in the present case, it might well be presumed that he had assented to the holding over.