Jwala Prasad, J.This is an appeal by the plaintiffs in a suit for ejectment. The ancestor of the plaintiffs Alam Mian obtained a jalsasam patta from the landlord of village Damudih on the 9th Fagun, 1230 B.S. (Ex. 1). After preparing a bandh and taking possession of the land granted to him by the aforesaid patta he gave the land to defendant No. 1 in Khaikhalasi (usufructuary) mortgage for a term of fifteen years ending with 1327. The mortgage was redeemed, and in 1328 the plaintiffs went to take possession but were resisted by defendants Nos. 2 and 3 who claimed to be the tenants of the land under defendant No 1. The plaintiffs then asked defendant No. 1 to give them khas possession. He claimed to have purchased the land in 1292 B.S. under a kabala, from the ancestor of the plaintiffs and that be had settled the same with the defendants Nos. 2 and 3 under a patta dated the 11th January, 1906 (Ex. A).

2. Both the Courts below concurrently held that the defendant No. 1 was not a purchaser of the land in dispute but was merely a mortgagee and after redemption the plaintiffs came to be the holders of the jalsasam right, holding that the defendants Nos. 2 and 3 were non-occupancy raiyats in respect of the lands in dispute. They could not be ejected except under the provisions of Section 41 of the Chota Nagpur Tenancy Act which not having been complied with the plaintiffs are entitled to no relief. Accordingly, the Courts below dismissed the plaintiffs suit, but they have come up to this Court in appeal and dispute the correctness of the findings of the Courts below as to the status of the defendants Nos. 2 and 3 being that of a non-occupancy raiyat. We have been taken through the provisions of the Chota Nagpur Tenancy Act and the Settlement Report of Chota Nagpur by Mr. Sifton and of Manbhum by Mr. Gokhale.

3. Mr. Bose appearing on behalf of the respondents contends that the plaintiffs were tenure-holders in respect of the lands in suit. Now a "tenure-holder" has been denned in Section 5 of the Chota Nagpur Tenancy Act (Act VI of 1908) as meaning: "primarily a person who has acquired from the proprietor, or from another tenure-holder, a right to hold land for the purpose of collecting rents or bringin g it under cultivation by establishing tenants on it", and a "raiyat" has been denned in Section 6(1) as meaning "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, etc".

4. Clause (3) of that section says "In determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to--(a) local custom, and (b) the purpose for which the right of tenancy was originally acquired."

5. In Section 5 of the Bengal Tenancy Act over and above the above considerations for determining whether a tenant sis a tenure-holder or a raiyat the statutory presumption has been raised in favour of a tenant holding land in excess of 100 standard bighas. No such presumption having been provided for in the Chota Nagpur Tenancy Act, the question of area becomes immaterial. In the present case the area of the lands in dispute is a small one. No proof of custom has been given as to the tenancy in question being that of a tenure-holder or of a raiyat. The only basis upon which the nature of the tenancy can be determined in this case is the purpose for which the tenancy was created. The use of the land by direct cultivation or by settlement of tenants or collection of rents from them as well as the area of the land, the position of the tenants and other circumstances might be taken into consideration. To my mind, the jalsasam patta (Ex. 1) affords in this case a firm, basis for determining the nature of the tenancy. By this patta right was conferred upon the lessee to prepare a bandh in the mauza in question in a certain tract of land known as sapahigara lying in the southern portion of Mama Damudih out of the lands thus rendered fit for cultivation. The lessee was given as much land "as will yield 4 maunds (of crop)", so that the lessee, his heirs and successors might possess and enjoy the same. The land was not specified by boundaries, but was directed to be given out of the northern portion of that area. In accordance with this lease the plaintiffs ancestor came into possession of the specific portion of the reclaimed land. This land was given in usufructuary mortgage to defendant No. 1 who, as stated above, leased a portion of it to defendants Nos. 2 and 3. The patta (Ex. A) states that the lessor was in khas possession of the land in dispute and that the land was leased on receipt of salami of Rs. 10 and at a fixed rent of Rs. 7. At the time when the patta was executed the mortgagee was in khas possession of the land, that is to say, was cultivating it himself and presumably the mortgagor was also cultivating it himself. There is nothing to show that the land was ever settled with tenants. The use of the land, therefore, by the original jalsasam holder, the mortgagee and the lessee of the mortgagee, that is, by all the parties concerned, indicates that the object of taking the lease of this land was to bring it in khas cultivation and not for the purpose of establishing tenants thereon. The area of the land being only such a quantity as would yield four maunds would also indicate the same. There is not a single word in the jalsasam patta (Ex. 1) indicating that the land was primarily let out for the purpose of establishing tenants on it. It could not be for the purpose of collecting rents, as at that time the land was not fit for cultivation, and the object of the patta was to have the lands reclaimed and rendered fit for cultivation. The defendants have failed to prove it, and the onus of it undoubtedly lay upon them, that the land in question was let out for such purposes as would create a tenure. The Settlement Reports referred to above do not say that all korkar or jalsasam lands are necessarily tenures and the holder thereof is a tenure-holder. It seems to me that the nature of the tenancy has to be determined according to the evidence in each case, and in the absence of anything to show that the tenancy created was in the nature of a tenure, the definition of the word "korkar" including jalsasam given in Section 3, Clause (xiii) read with the statutory provision in Section 67, would inevitably lead to the conclusion that a jalsasam tenure cultivated or held by a raiyat comes to be an occupancy holding. The tenancy in the present case was admittedly a jalsasam tenancy and consequently the plaintiffs ancestor acquired a right of occupancy therein. The view is supported by the decision in the case of Pareshram Deogharia v. Pratap Udai Nath Sahi Deo (1). The contention of Mr. Bose that Section 67 would apply only to the case of one who was previously a raiyat and cultivated or held the land by korkar subsequently, does not seem to be substantial. The question was not raised in the Courts below nor was any issue framed as to whether the plaintiffs ancestor, who acquired the jalsasam right, was not a raiyat at all. Therefore, in no case the contention of Mr. Bose can have any force. The plaintiffs being occupancy raiyats of the land in dispute, the defendants could not be non-occupancy raiyats at all. An occupancy raiyat cannot create a non-occupancy raiyat. Both occupancy and non-occupancy rights are held directly under the landlord or a tenure-holder. The view taken by the Courts below, therefore, that the defendants-respondents were non-occupancy raiyats in respect of the land in dispute, is erroneous and must be set aside.

6. Now the defendants Nos. 2 and 3 were inducted on the land by defendant No. 1, who had a limited interest therein, namely, that of a mortgagee in possession liable to be redeemed in 1327. As mortgagee in possession no doubt the defendant No. 1 had a right to settle the land in the ordinary course of management, but he could not create any right beyond his own term, that is to say, he could not give a lease either in perpetuity or for a period lasting beyond 1327 when the term of the mortgage expired and the plaintiffs redeemed the mortgage. The patta (Ex. A) does not purport in any way to limit the term of occupancy of the land by the lessees defendants Nos. 2 and 3. The lease was granted on payment of salami or premium of Rs. 110 as a consideration for the lease. The annual rental fixed for ever was Rs. 7 and it was not at all liable to be varied in any circumstance. This would indicate that the lease granted was of a permanent character. That was in excess of the power of the mortgagee to do, and a permanent lessee does not acquire any right to hold the land except under the lease, and the lease is invalid and inoperative so far as the lessor mortgagor is concerned. The possession of the defendants Nos. 2 and 3 was that of a mere trespasser after the redemption of the mortgage. If, on the other hand, the patta (Ex. 1) in this case is capable of an interpretation in such a way as not to be a permanent lease but only for an indefinite period, in such a case the defendants having been brought on the land as tenants in the ordinary course of management by the mortgagee in possession they would not be liable to be objected by the plaintiffs if under any law they acquired the right to remain on the land against the will of the mortgagor. The land was an agricultural one, and the lease granted was for agricultural purposes. The defendants in that case would become under-raiyats under the plaintiffs. But the Chota Nagpur Tenancy Act does not require, as the Bengal Tenancy Act does, that an under-raiyat cannot be ejected by a raiyat except by serving him with a notice prior to the termination of the agricultural year. All leases are terminable either by an express agreement between the parties by fixing a term or period of the lease, or if no term is fixed it terminates every year, such as in the case of a tenant from year to year. In the former case, that is, in the case of a fixed term, the lease terminates on the expiry of the term. In the case of a tenant from year to year where no term is fixed, the lessee not having got any intimation of the termination of the lease, the principles of law require that it must be expressly terminated before the expiry of any one year. Giving of notice is not expressly provided for by the Chota Nagpur Tenancy Act which governs the present case, and the Transfer of Property Act does not apply to it by reason of Section 117. Therefore, want of notice in the present case will not in itself deprive the right of the plaintiffs after redemption of the mortgage to take khas possession of the land. Although it might be a lease from year to year, the mortgagee had no right to create such a lease as would have the effect of extending the occupation of one brought by him, without the consent of the mortgagor, on to the land. It must be construed to be a lease expiring with the term of the mortgage in 1327, because the Chota Nagpur Tenancy Act in itself does not contemplate of creating an under-raiyat a tenant from year to year. This is expressly forbidden by Section 46 of the Act, which does not recognize the lease by a raiyat for a period exceeding five years.

7. According to para. 26 of the plaint the defendants were asked by the plaintiffs to give up the land from before the commencement of the year 13th Fasli, that is, 1921 and the suit was brought, a year after on the 10th September, 1922. This is not denied by the defendants, and in fact the defendants do not raise the question of notice in their written statement. Therefore, even if notice was required, the defendants had sufficient notice in the present case.

8. The defendants in the present case pleaded that the plaintiffs had no right at all to the land in question and did not by redemption acquire the position of the holder of the jalsasam tenancy. In other words, the defendants repudiated the title of the plaintiffs and pleaded non-existence of relationship of landlord and tenant between themselves and the plaintiffs. In this circumstance also no notice was necessary.

9. The result is that the plaintiffs are entitled to khas possession. The appeal is allowed, and the judgment of the Court below is set aside and the plaintiffs suit for possession and mesne profits decreed with costs. There will be one set of costs of the Courts below. All the defendants will be liable to the plaintiffs for costs of both the Courts below. As regards the costs of this Court, defendants Nos. 2 and 3 only would be liable, the defendant No. 1 not having entered appearance

Wort, J.

10. I agree.