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Calcutta High Court
A. Caspebsz vs Kader Nath Sabbadhikari And Ors. on 12 July, 1901
Equivalent citations: (1901) ILR 28 Cal 738
Author: Maclean
Bench: F W Maclean, K C.J., Banerjee


Maclean, C.J.

1. This is a suit for ejectment. The defence is that the defendants are not1 liable to be ejected, as their tenure of the land in question is of a permanent nature. The matter comes before us on second appeal, and we are, there fore, bound by the findings of fact of the Court below.

2. In support of their case the defendants first set up a pottah, which purported to show that the tenure was of a permanent nature. That document has been found by both the Courts below not to be genuine. But then the defendants say that, even if the pottah be not genuine, they have been for a very long time in possession of the land in dispute, that it has been from time to time transferred by succession and purchase from one tenant to another, that pucca buildings have, many years ago, been erected upon it by successive tenants, and that that has been done with the permission and knowledge of the landlord, and that, upon these facts, the Court would be justified in inferring or presuming that the tenure was of a permanent nature. To which the appellant replies that as the defendants in the first instance based their case upon a fraudulent pottah, it is not open to them to set up the alternative case upon which they now rely. I do not think this contention can properly prevail. When parties to a litigation set up a false document, as here, that circumstance no doubt induces the Court to view the evidence which they tender upon some other part of the case, with great care and possibly with some suspicion, but it does not prevent the parties from setting up such alternative case, nor prevent the Court from duly weighing and considering the evidence adduced in support of it. In this connection I may refer to the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Ranee Surnomoyee v. Maharajah Sutteeschun der Roy Bahadoor (1864) 10 Moo.I.A.123. The passage I refer to is at page 149 and runs thus: ” When false witnesses or forged documents are produced in support of a case, the fact naturally creates suspicion as to the case itself; and if the evidence on which their Lordships’ act depended in any decree for its credibility or weight on such witnesses, or document, they would have paused as to their conclusion.” The fact is not so, however, in the present case; their Lordships believe they have to deal with a just cause, foolishly and wickedly attempted to be supported by false evidence.” That disposes of the first point.

3. The second point is that, having regard to the language of para. 15 of the defence, this alternative case has not been sufficiently or properly pleaded. This, to my mind, savours of too much refinement, for it is reasonably clear that the defendants intended to raise this case, and it is equally clear from the second issue in the First Court, which runs as follows: “Whether the Adhikaries held the tenure as a permanent one either by express or implied grant; if so, is the suit maintainable?” that the plaintiff was aware that this case was raised and was in no wise misled by the pleadings. Moreover, evidence was gone into on the question without objection, and the appellants have not even raised this point as one of their grounds of appeal, and so it cannot be discussed without our permission. To my mind it is a mere afterthought, and there is nothing in it.

4. I now pass to the substantial question in the case, and, that is whether upon the facts found by the Court below, the Court was justified in presuming that the tenure was of a permanent nature. The Judge sums up the matter as follows: “In the absence of all documentary evidence, I must hold that the long possession of the vendor defendants and their ancestors, and the fact that the landlord permitted a pucca, house to be built upon the land by the tenant, which house has stood for a very considerable time, raises the presumption that the original grant was some kind of permanent building grant.” I must also refer to one or two other passages in his judgment. He says “there can be no doubt on the evidence that the house on the land in dispute has been built by successive tenants,” and a little earlier in relation to the question of transfer he says, ” At any rate the landlord acquiesced, and it is admitted that, for at least two generations, the Sarbadhikaris have occupied the land as tenants of the estate, paying a rent which was increased at irregular intervals from Rs. 5 in 1239 to Rs. 1810 in 1291.” I may point out in passing that acquiescence is not a question of fact, but of legal inference from the facts found; and upon it the judgments of the Appellate Courts are not final (see I.L.R. 21 All. 504.) However, it has not been suggested that the inference qua the question of acquiescence was not in the present case well founded.

5. Upon these findings of fact it is urged that the Court below was not justified in presuming that the tenure was of a permanent nature. Now in substance what facts are found? We have the fact of the long possession by the defendants and their ancestors, the fact of the land lord having permitted them to-build a pucca house upon it, that the house has been there for a very considerable time, that it has been built (this probably means added to) by successive tenants, and that the tenure has from time to time been transferred by succession and purchase, in which the landlord is found to have acquiesced, or of which he could not have been ignorant as he accepted rent from the transferees. In my opinion these facts are sufficient to warrant the Court in presuming that the tenure was of a permanent nature, and the authorities appear to me to support this view. I will first refer to the case of Baboo Dhunput Singh v. Gooman Singh (1867) 11 Moo. I. A. 433, and the passage which I propose to read is at page 466: “And, upon the proof here given of long and uninterrupted enjoyment, accompanied by the recognition of its hereditary and transferable character, it is almost impossible to suppose that a suit by the zemindar in the Civil Court to disturb the possession of the respondent, could not be successfully resisted.”

6. I now pass to the case of Gungadhur Shikdar v. Ayimuddin Shah Biswas (1882) I.L.R. 8 Cal. 960. This case in its circumstances is not dissimilar from the present; it is not suggested that the lands in the present case were let out for agricultural purposes and the Court said: “In this case we think there was quite sufficient ground to justify the Court below in presuming a grant of a permanent nature in favour of the defendants’ ancestors. It is conceded that the land in question was never let for agricultural purposes. It was apparently let upwards of 60 years ago for building purposes, because it is found that after the grant (whatever it was) these buildings, which are of a substantial character, were erected some 60 years ago by the defendants’ ancestors, and that they and their ancestors have lived there ever since. Under these circumstances, we think that the Courts below were at liberty to presume, if they thought fit, that the land was granted for building purposes, and that the grant itself was of a permanent character.” In the present case we have the element of pucca buildings, built a very long time ago by the ancestors and predecessors in title of the defendants and apparently added to by successive tenants.

7. The case last cited virtually followed the case of Prosunno Coomar Chatterjee v. Jagun Nath Bysack and Ors. (1881) 10 C.L.R. 25, where this passage occurs: ” No doubt, if land is let for building pucca houses upon it, or if the tenant with the knowledge of the landlord, does in fact lay out large sums upon it in buildings or other substantial improvements, that fact, coupled with a long-continued enjoyment of the property by the tenant or his predecessors in title might justify any Court in presuming a permanent grant, especially if the origin of the tenancy could not be ascertained.” There I pause to observe that the origin of the tenancy has not been ascertained in the present case. If there were any document, a pottah for instance, which showed the original nature of the tenancy, very different considerations would arise. “But the mere circumstance of a tenant occupying buildings upon property would not justify such presumption, unless it could be shown that they were erected by him or his predecessors, because a landlord might let property of that kind in the same way as agricultural land, at will, or from year to year.”

8. There is only one other case, a recent case, that of Ismail Khan Mahomed v. Jaigun Bibi (1900) I.L.R. 27 Cal. 570 which I need refer to in this connection. That was a regular appeal and the Court could go and did go into the evidence. There I find this statement of the law: ” When the origin of a tenancy and the circumstances attending its creation are not known, evidence of the mode of dealing with the land demised and of the acts and conduct of the parties generally, constitutes the best and indeed the only evidence to prove the nature of the tenancy. If that had been the case, the evidence of the mode of dealing with the property, such as we have here, might, perhaps, have been sufficient to raise the presumption of a permanent tenancy. But where, as in this case, we know when and under what circumstances the tenancy was created, evidence such as has been adduced is not sufficient for that purpose. Indeed, the circumstances attending the creation of the tenancy positively militate against any inference that it was intended to be permanent.” These authorities appear to me to establish that upon the facts found, the Court below was justified in presuming that the tenure was of a permanent nature. I need not refer to the well known case of Ramsden v. Dyson (1865) L.R 1E & I App. 129 and to the Privy Council case of Beni Bam v. Kundan Lai (1899) I.L.R. 21 All. 496, which have been cited by the appellant, for we are not, in the present case, dealing with the point which was there decided.

9. In my opinion the appeal fails and must be dismissed with costs.

Banerjee, J.

10. I am entirely of the same opinion.

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