AGARWALA, J.

(1.) This is defendants appeal arising out of a suit for partition which was instituted as along ago as the 1st of April, 1940. The plaintiff in the action was one Kundan Lal. He died during the pendency or the suit and is represented by his son Kunj Behari Lal and widow Srimati Dallo. The defendants to the action were four in number. Haji Faqir Bux, son of Haji Khund Bux, two sons of Haji Faqir Bux, Abdui Ghafoor and Sheikh Abdulla were defendants 1 to

3. Haji Faqir Bux died during the pendency of the litigation and his two sons who are appellants in this appeal are his representatives. These three defendants constituted one set of defendants. The fourth defendant was Srimati Kallo who also died during the pendency of this litigation and is now represented by her grandson Hamidwllah, The property, of which partition was sought, consists of a big ahata situated in mohalla Rahimganj in the City of Lucknow. It consists of shops and residential houses.

(2.) The property was originally owned by Begam Mumtaz Mahal wife of Nawab Ghaziuddin Hyder. In 1874, she gifted this property to her sister-in-law, Srimati Mulko. In 1885, Srimati Mulko sold it to Babu Rahim Bux who was a benamidar for his father Babu Khuda Bux. (This gentleman Babu Khuda Bux is to be distinguished from Haji Khuda Bux, father of Haji Faqir Bux). Babu Khuda Bux died in 1895 and he was succeeded by three sons, Rahim Bux, Karim Bux and Nabi Bux, ten daughters and a widow. Seven of these ten daughters relinquished their shares in 1903 in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaj of Balrampur by means of a deed dated the 12th of February, 1904. The Balrampur Estate then remained in possession from 1904 to 192

1. In 1919, the Maharaja of Balrampur brought a suit upon his mortgage and obtained a preliminary decree for sale. In 1920, Rahim Bux and his two brothers, not being able to pay off the mortgage decree, sold the equity of redemption to one Murlidhar. Murlidhar redeemed the mortgage and paid off the amount due under the preliminary decree to the Maharaja of Balrampur in 192

1. Faqir Bux, original defendant No. 1 acquired a share in the equity of redemption from the three daughters and the widow of Babu Khuda Bux and then brought a suit for redemption of his share against Murlidhar, and ultimately, by paying off the amount due upon his share to Murlidhar, became a co-sharer in the property to the extent of 3 annas, 10 pies and 9 kirants. This was in the year 192

2. By different deeds of transfer Murlidhars share went to Srimati Kallo, original defendant No. 4 and to Kundan Lal, predecessor-in-interest of the plaintiffs, Kunj Behari Lal and Srimati Dallo who have brought the present suit for separation of their share by partition of the property.

(3.) There was a dispute between the parties as to their respective shares in the property which has now been finally settled. The plaintiffs have been found to be entitled to a 4 annas and odd share. Kallos heir, Hamidullah, had been found to be entitled to an eight annas share and Abdul Ghafoor and Sheikh Abdullah appellants to 3 annas, 10 pies and 9 kirant share.

(4.) One of the defences raised by Haji Faqir Bux and his sons Abdul Ghafoor and Sheikh Abdulla was that in addition to their being co- sharers in the property, they were permanent lessees of three shops abutting the Aminabad Road in the western portion of the ahata and of the land on the back of these shops, towards their east on which they have made numerous constructions both for residential purposes and for the manufacture of tobacco. The shops and land over which permanent lessee rights are claimed by the defendants-appellants are very large in area and are much more than the area to which they would be entitled on account of their share in the proprietary rights.

(5.) A Commissioner was appointed by the Court below who prepared a map of the property in dispute. The land, which is in possession of the defendants-appellants, is marked in two portions, blue and red. In the blue portion are included the three shops which were the property of Mumtaz Mahal. In the red Portion are Included two Kothris 52-A and 52-B which belonged to Mumtaz Mahals successors-in-interest. These shops and Kothris have been reconstructed by Haji Khuda Bux or Haji Faqir Bux. The defendants case was that the land included within the blue portion, which is to the west and which includes the three shops, was acquired by Haji Khuda Bux in or about the year 1870 from Begam Mumtaz Mahal on a perpetual lease for establishing a tobacco factory on a rent of Rs. 12-0-0 per month and thereafter, in or about the year 1900, the adjoining land towards the east, marked red in the Commissioners map, was acquired on the same terms of the extension of the tobacco factory at a monthly rent of Rs. 2-0-0 from the heirs of Babu Khuda Bux. A third piece of land was also acquired later en from the Maharaja of Balrampur, the mortgagee, which is to the south of the portion marked red, for the construction of stables on a monthly rent of Rs. 0-8-0, but as this portion is not the subject-matter of the present suit, it need not be considered any further. Their case further was that there was an agreement about the three shops and the two kothris 52-A and 52-B that upon reconstruction by them the buildings would belong to them.

(6.) The question of permanent tenancy right was not decided originally by the learned Judge of the trial Court, as, in his opinion the question was unnecessary for the purposes of the suit for partition but against his judgments, the Plaintiff and Srimati Kallo filed appeals in the erstwhile Chief Court of Avadh and the appeals were decided by a Judgment of that Court dated the 22nd of August, 1947, whereby the case was-remanded to the Court below for findings on the nature of tenancy of the defendants-appellants and also as to whether there was any agreement about the constructions of the three shops and the two kothris. On remand, the learned Judge held that the defendants-appellants tenancy was mot permanent but was an ordinary terminable tenancy and that there was no particular agreement about the constructions of the three shops and the kothris 52-A and 52-B so that, the constructions on these Plots belonged to file proprietors of the ahata and as such were divisible amongst the co-sharers.

(7.) The Court below, therefore, passed a fresh preliminary decree for partition in the light of its findings directing that the value of the land in the tenancy of the defendants 2 to 3 would have to be made on the basis of a terminable lease of it in their favour and the constructions on Plots Nos. 1 to 3 and 52-A and 52-B would fee divisible amongst the co-sharers, that the defendants 2 and 3 were to be given in their shares as much portion of the land held by them as tenants as could be given to them within their share, and that their tenancy right in the leased land falling in the shares of the other co-sharers would remain unaffected by Partition and those other co-sharers would have to eject defendants Nos. 2 and 3 in due course of law as tenants, if they desired ejectment. As to the constructions on the land enclosed within blue and red lines except Plots Nos. 1 to 3 and 52-A and 52-B, the Court below directed that they would not be included in the partition.

(8.) Against this decree, a first appeal was filed in this Court which has now come up for decision before me.

(9.) It has been conceded that the findings of the lower Court as regards the constructions of the three shops and on Plots 52-A and 52-B cannot be challenged and has to be accepted in this appeal and the only question that remains for decision, is whether the land, shop and kothris in the possession of the defendants-appellants are held by them on a permanent lease or leases.

(10.) There is no deed of lease either in respect of the blue portion or the red portion. The question of the nature of the tenancy is to be decided upon the basis of circumstantial documentary and oral evidence. It appears that in the blue portion Khuda Bux raised a marha, constructed a residential quarter with kachcha mud walls and khaprail shed and a few rooms for the preparation of tobacco. Kachcha constructions were similarly made in the plot, marked red, when it was acquired in 1900. There is no evidence that any pucca constructions on any of the plots were made before the year 1914. Some of the constructions seem to have been made in 1918, but most of the constructions have admittedly been made after Faqir Bux acquired a share in the proprietary rights in 1922.

(11.) Now to turn to the documentary evidence on the record. The first document to be considered is a deed of gift dated the 18th September, 1874 by Mumtaz Mahal in favour of Mulko. Mumtaz Mahal mentions this ahata as a grove with pucca built shops as possessed by her and she gifted by this deed all the materials, land, bricks, wood trees, fruit-bearing and non-fruit bearing, and the shops to Mulko. It would seem that nobody else had made any constructions of his own over this property by the time that this gift-deed was executed. There is no mention of any permanent lease.

(12.) The next document to be considered is the sale-deed dated the 16th January, 1885, executed by Mulko in favour of Rahim Bux but this document is not of much importance so far as the point in controversy is concerned.

(13.) There is then the mortgage-deed by Rahim Bux, his two brothers, their three sisters and the widow of Babu Khuda Bux in favour of the Maharaja of Balrampur, dated the 12th of February, 1904. The names of tenants are mentioned along with the number of the house or shop occupied by them. At serial Nos. 8, 9 and 10 are three shops in dispute. Their tenant is described as Khuda Bux, tobacco-seller and rent mentioned is Rs. 3-3-0 per shop, that is, a total of Rs. 9-9-0 for the three shops. At serial Nos. 35 and 36 are two compounds. The tenant is described as Khuda Bux, tobacco-seller and the rent of compound No. 35 is Rs. 3-3-0 and of the other compound is Rs. 2-0-0 per month. Obviously compound No. 36 at a rental of Rs. 2-0-0 is the portion marked red in the Commissioners map and the compound No. 35 of which the rental is shown as Rs. 3-3-0 is the position marked in blue except the three shops Nos. 1, 2 and 3, which appear to be the shops mentioned at serial Nos. 8, 9 and 10 in the mortgage deed. The nature of tenancy is not mentioned in this document. The total rent of the three shops and the compound No. 35 comes to Rs. 12-12-0 and of compound No. 36 to Rs. 2-0-0 giving a total of Rs. 14-12-0.

(14.) Then we have a will executed by Haji Khuda Bux. This is dated the 13th of October, 190

6. In this will, Haji Khuda Bux declares that he had declared his entire property as waqf property to meet the expenses of the repairs of the mosque erected by him, that for a long time a tobacco shop was toeing run by him, that about 30 years ago he had adopted Faqir Bux and brought him up as his own son, married him and that he was joint in the business with him and was thriving on account of his efforts and that he had named the shop as Haji Khuda Bux Faqir Bux and that the said Faqir Bux was the owner of the entire funds and profits of the tobacco business and the entire moveable and immovable property existing after the death of the testator. This document, beyond mentioning this business of tobacco carried on in these shops, makes no mention of any permanent lease or permanent lease-hold property. This is rather significant.

(15.) Haji Khuda Bux and Faqir Bux then executed a Joint deed called a deed of Partnership on the 12th of July, 1909, This was in respect of the partnership in the tobacco shop. The value of the business is fixed Rs. 46,000/- and the executants of the deed declare themselves owners of half and half, not only in the business but also in the entire property specified in the deed whether purchased in the name of the executor No. 1 or in the name of the executor No.

2. Paragraph 13 of the deed is material and it may be quoted. "That whatever buildings have been constructed appertaining to the shop situate in Fatehganj, City Lucknow and whatever may be constructed from time to time, those all shall be treated as joint property of us the declarants and if at any time any compensation in respect thereof be realised from the owner of the land, then that too shall be treated as joint property." The shop situate in Fatehganj refers to the three shops and the land in dispute. Here again, the executants failed to mention that they held the shops or the land behind the shops on a permanent lease but it is significant that they contemplated the contigency in which they might be compelled to vacate the land and to get compensation in respect of the buildings which they had constructed thereon and they declared that any such compensation realised, from the owner of the land was to be treated as the joint property of the executants. The very notion of their being awarded compensation for the constructions made over the land goes to show that they did not consider that they were entitled to keep the buildings for ever in their possession, that is to say, the executants did not consider that they were permanent lessees of the land, not liable to be evicted therefrom.

(16.) The next document is of the utmost Importance. In or about the year 1918, when the entire estate was under the mortgagee-possession of the Maharaja of Balrampur, Faqir Bux had made certain constructions, probably pucca constructions, which seem to have been objected by the Maharaja of Balrampur. There was then an agreement between Faqir Bux and the Maharaja. This agreement was executed on the 29th of January, 1918 and is Ext. 12 on the record, The agreement recites that Faqir Bux, the proprietor of the shop known as Faqir Bux, Khuda Bux, was occupying the shops on payment of rent and that Faqir Bux, Khuda Bux had got erected structures in the shops as well as in front of the shops on the vacant land with their funds both with and without the permission of the Balrampur Estate. The conditions of tenancy were agreed upon as follows :

"(1) That we shall always continue to inhabit (the land) on payment of the rent which we are paying at present, and (2) That if the Ganj be purchased by the Estate and at that time the Estate requires it to be vacated, then we shall vacate it without any compensation and shall remove all the decorations and articles from each shop and if the mortgagor gets this property redeemed then we shall enter into a mutual agreement with him".

The document is registered. This document wag not admitted by Faqir Bux in the present suit but has been duly proved as having been in fact executed by him. This document shows two things, first, that the rent was to continue to be the same and not to be enhanced, and second, that the lessee was liable to be evicted without payment of compensation for the constructions, if the mortgagee became the owner of the Property but if the mortgagor gets the property redeemed, then there would have to be a fresh agreement between the lessee and the mortgagor. This document destroys the theory of a permanent tenancy. If the lessee was a permanent tenant, he would not have agreed to vacate the land if the mortgagee became the owner of the property. It is alleged on behalf of the plaintiffs and defendant No. 4 that even if the lessee was a permanent tenant at any anterior time, he gave up his rights and obtained a fresh lease by means of this document. I shall consider this aspect of the matter later,

(17.) In 1921, after Murlidhar had redeemed the property from the Maharaja of Balrampur, a suit for the eviction of Faqir Bux and his two sons was instituted by Murlidhar. It appears that Khuda Bux had died by this time and the only defendant to the suit was Faqir Bux. His case was that the defendant was occupying the house with shops and ahata on a rent of Rs. 14-0-0 p. m. on behalf of Rahim Bux and that the plaintiff did not want to keep the defendant as his tenant any longer. In reply, Faqir Bux pleaded that Haji Khuda Bux remained in possession of the land with buildings present thereon from before 1874 on behalf of Mumtaz Mahal, the previous owner on payment of rent for purposes of manufacturing, chewing and smoking tobacco and that thereafter the defendant has continued to run the tobacco factory on the same site, that it was stipulated with the owner that the tenant shall make constructions thereon as desired by him till the subsistence of the factory on payment of Rs. 12-0-0 p. m., that thereafter on the same conditions and rent the heirs of Babu Khuda Bux aforesaid have been in possession thereof and a portion of land towards the east was added to the possession of the ancestors of the defendant on payment of Rs. 2-0-0 subject to the compliance of the said conditions by the heirs of Babu Khuda Bux, that in that way the defendant had been paying Rs. 14-0-0 p.m. instead of Rs. 2-0-0 p. m. as rent, that the ancestors of the defendant and the defendant from time to time got constructed Pucca shops and kothris and also got constructed one pucca residential house and other pucca and kachcha buildings, that in these constructions about Rs. 8,000/- Were spent by the defendant and his ancestors with the consent of the owner, that the plaintiff and the vendors of the plaintiff had no right to effect eviction and that under all circumstances the defendant could not be evicted from any portion of the building without payment of the costs of the constructions by way of compensation.

(18.) It will be noted that in this written-statement permanent tenancy was not pleaded. What was pleaded was that they were entitled to remain in possession till the subsistence of the factory. It was also pleaded that the defendant had become a co-sharer in the property and such also, was, not liable to be evicted.

(19.) On behalf of Faqir Bux, statements of Ujjo Lal, Zahur Ahmad, Jan Mahammad and Gokaran Dayal were recorded. Copies of their statements have been filed in the present case and I shall consider them later on. The Munsif recorded a finding that the property was taken on the terms mentioned by him in his written-statement in so far as the original lease of 1870 relating to the blue portion was concerned but that with regard to the red portion the terms could not be proved as the leases were neither written nor registered. The Munsif dismissed the suit for ejectment on both the grounds, namely, because of the terms of the tenancy as well as of the fact that the defendant had become a co-sharer in the proprietary rights.

(20.) As against the decree of the Munsif, Murlidhar went up in appeal. The appeal was dismissed on the ground that the defendant had become a co-sharer in the property and could not be ejected. The District Judge did not go into the question of the nature of tenancy of the defendant.

(21.) Thereafter litigation for accounting for profits started between the parties: Faqir Bux suing Murlidhar and other co-sharers for his share of profits and Murlidhar suing Faqir Bux for his share of profits in the property occupied by Faqir Bux, In one of these suits, namely, Suit No. 54/66/73 of 31-32, filed by Sheikh Faqir Bux and Sheikh Abdul Ghafoor against Murlidhar and others, the question of the nature of the tenancy of the defendant was again raised. The learned Judge stated that there was no proof that the land was originally let out in permanent tenancy and that there was no proof that the premises were originally let out for being used as a factory, but the point was not finally decided.

(22.) Another suit was filed by Faqir Bux for his share of profits against Kundan Lal and others. This wag Suit No. 66 of 193

7. It was decided on the 30th September, 1939.

(23.) This is the entire documentary evidence on the record on the nature of tenancy of the defendants-appellants.

(24.) The oral evidence consists of copies of statements of four witnesses who had made statements in the suit of 1921, namely Ujjo Lal, Zahur Ahmad, Jan Mohammad and Gokaran Dayal and in the present suit there are the statements of Abdul Ghafoor defendant and one witness Syed Husain. I have gone through the statements of these witnesses and I have no hesitation in affirming the opinion of the lower Court that their evidence is wholly unreliable. Ujjo Lal stated that the tobacco factory was established immediately after the old settlement. Haji Khuda Bux got it from Imtiaz Mahal (that is Mumtaz Mahal) for establishing a tobacco factory in a permanent rent of Rs. 12-0-0 p. m. so long as the factory lasted and that he would not be evicted. According to the witness, Haji Khuda Bux had asked his (witnesss) father to get the terms settled. His father said to Ori Lal, Mukhtar of Imtiaz Mahal, to help him. The terms were settled in his presence. He admitted in cross-examination that he was 14 or 16 years old at the time of the old settlement and that his father died leaving him a child of 9 years, that is to say, his father died several years before the old settlement. According to him, the factory was started after the old settlement and presumably the land was taken after the old settlement. His statement that Haji Khuda Bux had asked his father to get the terras settled is, therefore palpably false. In any, case, if the factory was started immediately after the old settlement, when the witness was 14 or 16 years old at the most, it is inconceivable that he would be called to witness the settlement of the terms of the tenancy or he would be present before Begam Mumtaz Mahal when the terms of the lease were being settled. This witness is not a witness of the second lease alleged to have been taken in 1900 of the portion marked red.

(25.) Zahur Ahmad was an employee of the Balrampur Estate. He says that he learnt on inquiry that Faqir Bux was a permanent tenant and that he learnt this from Rahim Bux. He says that he retired in 1916 and, therefore, he does not know about the agreement of 21st of January, 1918. His statement does not inspire confidence.

(26.) Jan Mohammad speaks of the second lease. He says that this land was taken about 25 or 26 years ago on Rs. 2-0-0 p.m. on the same terms on which the other land was held. He said that the old terms were that the factory could not be removed and that no enhancement or attachment could be made and that they could make any constructions that they liked. He learnt about these terms from the talk of the parties about the new land. It does not appear that any terms were settled in his presence. The witnesss testimony is only hearsay and cannot be relied upon.

(27.) Gokaran Dayal was mutamid of the Balrampur Estate from 1914 till 1924. He had gone in 1914 or 1915 to see whether this property was capable of enhancement of rent and then he came to know that Faqir Buxs rent could not be enhanced. He mentions that Faqir Bux had said that he was a permanent tenant. His evidence merely proves the admission of Faqir Bux himself and the fact that the rent could not be enhanced. His evidence, therefore, does not prove that the tenancy was a permanent one.

(28.) Syed Husain, who has been produced in the present suit, was not produced in the earlier litigation. His statement is that a permanent lease was settled at Rs. 12-0-0 p.m. in favour of Khuda Bux, Whatever constructions were to be made by Khuda Bux would belong to him. New constructions to be made in place of the old constructions of Mumtaz Mahal were also agreed to be the property of Khuda Bux. When the said talk took place between Mumtaz Mahal and Khuda Bux, (his age was 18 or 19 years. He was a labourer. It is inconceivable that an ordinary labourer would be allowed to be present at the talk between Begum Mumtaz Mahal and Haji Khuda Bux. I agree with the Court below that his statement is wholly unreliable.

(29.) Abdul Ghafoor is the defendant himself. Before the remand he did not make a statement that any land was taken on permanent tenancy in his presence. He was not born even when the first portion was taken and he says that he was 14 or 15 years old when the second Portion was taken on lease from Rahim Bux. As he was 14 or 15 years old only at that time, he dared. not say in his first statement before the remand that, the terms of permanent tenancy were settled, in his presence. After the remand order by this Court, he has mustered courage to swear that Haji Rahim Bux and his father Faqir Bux and the witness were present and also Jan Mohammad was present when the land was taken in 1900. This belated statement is not worthy of belief in view of the fact that a boy 14 or 15 would not be likely to accompany his father for the settlement of the terms of an important transaction like a permanent lease. I agree with the Court below that the oral evidence is wholly unworthy of credit.

(30.) The onus of proving a tenancy as permanent is upon the person who avers to that effect. I find that the onus has not been discharged by the appellants in the present case. The two leases were oral. The only person who could have deposed, to the two agreements of lease was Faqir Bux himself. He took the second lease himself and he may not have been present when the first lease was taken but he has not dared to come in the witness-box. The reason is obvious. He dared not deny on oath the execution of the agreement dated the 21st day of January, 1918. His deliberate avoidance of the witness-box raises a presumption against his contention. The documentary evidence, far from establishing the defendants case, serves to demolish it. It is established that the shops and the kothris, which were let out to Haji Khuda Bux, belonged to Mumtaz Mahal and that vacant land was also given by Mumtaz Mahal along with the shops on rent. The rent was Rs. 3-3-0 for each of the shops and Rs. 3-3-0 for the vacant land. Up to 1909, when the deed of partnership was executed by Haji Khuda Bux and Faqir Bux, there was no mention of a permanent lease. On the other hand, it was in the contemplation of Khuda Bux and Faqir Bux that they could be evicted on payment of compensation. In 1918, Faqir Bux agreed that they would vacate the premises without compensation if the mortgagee acquired the mortgagors right and that they would conclude a separate agreement with the mortgagor if he redeemed the property. In 1921, for the first time, Faqir Bux put up a case that he could not be evicted so long as the factory lasted and that, in any case, he was entitled to compensation for the constructions he had made, if he was evicted. He did not even then put up the Plea of permanent tenancy. In 1931-32, the plea of permanent tenancy was put Up by Faqir Bux but it was negatived. The origin of the tenancy is known and, therefore, it is not a case of tenancy of which the origin Is not known. No question of lost grant can arise in the case. It does appear that the rent remained constant with the slight variation of -/12/- at the sum of Rs. 12-0-0 p.m. upto 1900 and from thence onward at the sum of Rs. 14-0-0. It also appears that the defendants have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructing were made after 1922 where Faqir Bux acquired a share in the proprietary rights. In these circumstances, the facts that an uniform fixed rent had been paid for a long time, that the defendants have been making constructions on the vacant piece of land at their own cost and that they have been in possession of the land for a long time, do not raise the presumption that the tenancy of the defendants was permanent. In every case, an inference of permanency of tenancy is a question of fact depending upon the facts of each particular case. In A.S.N. Nainapillai Marakayar v. T. Ramanathan Chettiar, AIR 1924 PC 65 [LQ/PC/1923/21] (A), it was ruled that the onus of proving that a tenancy is permanent is on the tenant and that the mere fact of long occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V.P. Subramanya Mudaliyar, AIR 1929 PC 156 [LQ/PC/1929/37] (B). In the circumstances of the present case, the additional fact that the defendants have been making constructions over the vacant portions of the tenancy land would not suffice to raise a presumption of permanent tenancy.

(31.) Assuming, however, that the tenancies of 1870 and 1900 were both permanent, the permanent right must be deemed to have been waived and both the lands must be deemed to have been taken under the new agreement dated the 21st of January, 1918. It amounts to a waiver of the old terms and their substitution by new terms. Section 111 (f) of the Transfer of Property Act lays down that a lease of immovable property determines by an implied surrender. The permanent tenancies of 1870 and 1900 must be deemed to have been impliedly surrendered with the execution of the agreement dated 21st January, 1918. In Rehmans Law of Landlord and Tenant, 8th Edition, at Page 562, it is stated : "There cannot be two concurrent tenancies of the same premises, and therefore, if during the continuance of a lease the landlord, with the assent of the tenant, grant a new lease the previous lease is surrendered by operation of law : or, in other words, the tenant having assented is estopped from afterwards denying the landlord a power to grant the new lease which he could only do, assuming the old lease to be surrendered ...... And this is so, whether the new lease is to the tenant himself, or to himself jointly with a third person.......... It is immaterial that the new lease is for a less term than the unexpired residue of the old one, for a term of a hundred years would be surrendered if there was new demise for a week". In Foa on Landlord and Tenant, Edn. 6, at p. 695, it is stated :

"The reason why this operates as a surrender is that the lessee, by accepting the new lease, has been party to an act the validity of which he is by law afterwards-estopped from disputing, and which would not be valid if the first lease continued to exist; and as the lessor could not grant the new lease until the prior one had been surrendered, the acceptance "of such new lease is of itself a surrender of the former".

The same view has been taken in India in Suraj Bhan v. Abdul Khaliq, AIR 1944 Lah 1 (C) ; Mohammad Yusuf v. Hafiz Abdul Khaliq, AIR 1944 Lah 9 (D) and Santi Lal v. Jogendra Nath Gorain, AIR 1948 Pat 407 [LQ/PatHC/1948/41] (E). The surrender of the lease of the mortgaged, property during the continuance of the mortgage and acceptance of a new lease from the mortgagee would operate in favour of the mortgagor. The mortgagor could, therefore, rely upon the surrender of the permanent lease and if a new agreement was entered into between the lessee 2nd the mortgagee, as stated in the agreement dated 21st of January, 1918, the mortgagor would not be bound by the permanent lease which was surrendered by means of the aforesaid agreement.

(32.) As regards the second lease, the Court below held that no second lease came into force because the lease was not made by a registered or written document. That, however, will not foe conclusive against the defendants-appellants because even an oral permanent lease acted upon for more than 12 years and the lessee having been delivered possession of the leased premises, would create permanent tenancy rights in favour of the lessee by adverse possession. The initial defect would be cured by the doctrine of adverse possession but, as stated above, the second lease was not for a permanent tenancy. Even if any of the leases, first or second were of a permanent nature, permanent tenancy rights were waived and surrendered by means of the agreement dated 21st of January, 1918.

(33.) It was urged on behalf of the appellants that they having set up a permanent lease in their favour in 1921 acquired permanent tenancy "rights by adverse possession for over 12 years. This contention is not sound. As already stated, no permanent tenancy was set up in the written-statement filed in the suit of 192

1. Moreover, a tenant in possession cannot, during the subsistence of the tenancy, set up an adverse title. Further, in the present case no accrual of permanent tenancy by adverse possession can be allowed in favour of the lessee having regard to the fact that the lessee having become a co-sharer in the property, was not liable to be evicted, as held in the litigation of 192

1. If the lessor could not eject the lessee, the lessee cannot obtain, by the mere fact of claiming, permanent lessee rights for over 12 years. The Plea of acquisition of permanent rights by adverse possession commencing from the date of the written-statement in the suit of 1921 is, therefore, untenable.

(34.) It may be mentioned that Murlidhar and his successors-in-interest never accepted or acquiesced in the claim of the defendant that he was a permanent tenant. They questioned It at every stage during various litigations that went on between the parties from 1921 onwards up to 1940, when the present suit was instituted.

(35.) For all these reasons, therefore, I hold that the lease in favour of the defendants-appellants was not a permanent one but was terminable at the will of the lessor.

(36.) There is, therefore, no force in this appeal and I dismiss the appeal with costs and confirm the decree made by the Court below.