Fazl Ali, J.This is an appeal from the judgment and decree of the Subordinate Judge of Dhanbad affirming on appeal the judgment and decree of the Munsif of Dhanbad in a suit instituted by the respondents to eject the appellant. The appellant is recorded in the Record of Rights as the tenure holder of the lands in suit under the plaintiffs and the tenure is further recorded as resumable. The plaintiffs case was that the tenure had been terminated by notice to quit duly served upon the defendant before the institution of the suit. The main contentions raised on behalf of the defendant were (1) that the civil Court had no jurisdiction to try the suit as it was triable only by a Revenue Court u/s 139(4) Chota Nagpur Tenancy Act (2) that the tenancy in respect of which the suit was brought was a permanent one.

2. The suit was decreed by the Court of first instance and an appeal by the defendant was dismissed. Hence this second appeal.

The first question to be considered in this appeal is whether Section 139(4) applies to the facts of this case and whether it was triable by the Munsif of Dhanbad, On this point the following decisions have been cited on behalf of the parties; Aghor Manjhi and Others Vs. Kshirida Sundari and Others, Deonandan Pande and Another Vs. Anhach Kahar and Others, Rikhi Nath v. Rangoo Mahto AIR 1929 Pat 18 , Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., , Nandu Mahton Vs. Bholu Mathton and Another, and Mt. Jageshwar Kuer Vs. Tikakdhari Singh, .

3. It may be mentioned here that the strongest case in favour of the appellant is the case of Mt. Jageshwar Kuer Vs. Tikakdhari Singh, . In that case it was held that a suit to eject raiyats who are holding over after the expiry of the lease is not in places to which the Chota Nagpur Tenancy Act applies entertainable by a Munsif and that u/s 139 of the Act such a suit is cognizable only by the Deputy Commissioner. The learned advocate for the respondent however tries to distinguish that case by showing that in the present case a notice to quit had been served by the plaintiff upon the respondent before the institution of the suit and so the tenancy had terminated. It is true that in some cases it has been held that the suit contemplated by Section 139, Chota Nagpur Tenancy Act, is only a summary suit for possession and that where a suit is instituted not only for recovery of possession but also for a declaration of title, the suit is cognizable by the civil Court.

4. The present case was sought to be distinguished from those cases by the learned advocate for the appellant on the ground that in this case no prayer has been expressly made for a declaration of title but possession is claimed merely on the ground that a notice to quit had been served upon the tenant. In my opinion however the correct principle has been laid down in Nandu Mahton Vs. Bholu Mathton and Another, where it has been held that a suit for the ejectment of a tenant in which it is averred that the tenancy having bean duly terminated the relationship of landlord and tenant does not exist between the plaintiff and the defendant, lies in the civil Court. The present case comes well within the rule laid down in that decision and I hold therefore that it was cognizable by the civil Court.

5. The next question which was argued was one relating to court-fee the valuation of the suit. It was pointed out that para. 7 of the plaint shows that court-fee-was paid according to the provisions of 8. 7, Clause (c), Court fees Act, but as the suit had been brought on the footing, that the relationship of landlord and tenant between the parties had come to an end, such a suit was virtually a suit for a declaration of title as well as for possession as a consequential relief and therefore the court-fee payable on such a suit must be an ad valorem court-fee The argument in other words amounts to this that the court-fee paid was in sufficient and that if the suit had been properly valued the forum of the suit might have been different. Mr. Sushil Madhab Mullick who appears on behalf of the respondent meets this argument in two ways.

6. In the first place it is urged by him that the question that the court-fee paid by the plaintiff was insufficient was not raised in the form in which it is raised in this Court, at least before the lower appellate Court, and that if it had been raised the lower appellate Court might have on investigation found that the valuation of the suit would not have been so high as to change the forum. It is contended by Mr. Mullick that although the suit may cover a large quantity of lands, yet what was to be valued was the interest which the tenure-holder possesses in the land, and after all the valuation of this interest might not have been so high as to alter the forum of the suit. I do not think it necessary to deal with this part of the argument because in my opinion the present suit would be governed by the provisions of Section 7, para. 11, Sub-clause (cc), Court-fees Act.

7. That clause relates to suits for the recovery of immovable property

from a tenant including a tenant holding over after the determination of the tenancy.

It is to be remarked that the language used here itself indicates that the mere use of the word "tenant" without adding the explanatory words which follow, would not have conveyed the meaning of the framers of the Act and would not have been wide enough to include cases which are intended to be covered by this provision. The words

including a tenant holding over after the determination of the tenancy,

are sufficient to indicate that the provision is meant to cover even those cases where a person was a tenant before, but his tenancy has been determined since. That this is the right construction to be placed upon the section is apparent from the decision of this Court in Ramcharan Singh v. Sheo Dutt Singh AIR 1923 Pat 380 . There it was held that the word "tenant" used in para. 11, Sub-clause (cc) seems to include a person to whom the description would apply immediately before the commencement of the suit, but whose tenancy had terminated entitling the landlord to eject him.

8. A tenant who is the thiccadar and whose thiccadari interest has expired but who has refused to quit, whatever the reason may be, was held to come within Sub-clause (cc) of para. 11 of the section and it was held that that section applied where in such circumstances the landlord brought a suit to eject him. I therefore hold that the court-fee paid by the plaintiff was sufficient.

The last point that was urged related to the merits of the case. The Courts below have both concurrently found that the tenure is resumable and not permanent as alleged by the defendant and that the tenancy had been terminated by proper notice. It has been urged by Mr. Abani Bhusan Mukherji on behalf of the appellant that the question whether in a particular case a tenancy is or is not to be held to be permanent is not a pure question of fact but a mixed question of law and fact, and reliance is placed on AIR 1927 102 (Privy Council) and Kamal Kumar Datta and Another Vs. Nandalal Dubey, . Mr. Mukherjee then proceeds to show that the defendant in this particular case had bean in possession of the lands for over forty years and that the rent was not a variable one.

9. Assuming that the defendant had established these points, I do not think that they would be sufficient to support a finding that the tenancy was a permanent one. The onus of proving that the tenancy was a permanent one has in such cases been always laid upon the person who asserts it to be so. In Nainapillai Marakayar v. Ramanathan Ghettiar AIR 1924 PC 65 it was held that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such a right is upon the tenant. In the present case the Record of Rights was against the defendant and the Courts below have on a consideration of the entire evidence in the case come to a distinct finding that the defendant has failed to establish that the tenancy was a permanent one. In my opinion therefore this appeal is concluded by findings of fact and must be dismissed with costs.