Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Ismail Khan Mahomed vs Jaigun Bibi on 19 January, 1900
Equivalent citations: (1900) ILR 27 Cal 570
Author: B A Stevens
Bench: Banerjee, Stevens


Banerjee and Stevens, JJ.

1. This appeal arises out of a suit brought by the plaintiff-appellant, for ejectment of the defendant-respondent from a plot of land, and for arrears of rent, on the allegation, that the plaintiff is lessee of taluq No. 99 on the register of 24-Pergunnahs Collectorate under the mutwali or manager of the Hughli Imambara, who holds that taluq as trustee of the endowment; that the defendant in possession of the plot of land in dispute is a tenant-at-will under the plaintiff; that the plaintiff gave the defendant, as he is entitled by his lease to do, a notice to quit the land in suit; and that the defendant has not complied with the notice.

2. The defence was that the defendant knew nothing of the taluq No. 92 being wakf or endowed property; that the defendant was not a tenant-at-will; that the notice was bad in law; that the land in dispute was part of an ancient mourasi mocorari holding of Nizam Mistry and was purchased by Shadhu Serang in 1256 from Gholam Kadir who had obtained the greater part of that holding under a compromise decree against Nazim Mistry’s widow; that Shadhu Serang erected a pucca building on the land; that the land with the building has, by successive transfers, come to the hands of the defendant, who has built another pucca house on the land and has been holding the same as a permanent tenure on payment of the fixed rent of Us. 2-11-8; and that by the local custom of taluq Kidderpore tenants of homestead lands have permanent rights in the same.

3. The Court below overruled the objection to the notice, but dismissed the suit for ejectment on the ground that the defendant had a permanent right to the land, and it gave the plaintiff a decree only for arrears of rent.

4. Against that decree the plaintiff has preferred this appeal and it is contended on his behalf that the Court below was wrong in holding that the defendant has a permanent right in the land. On the other hand the defendant seeks to support the decree of;the Court below dismissing the suit, not only on the ground, on which it is based but also on the ground that the notice to quit was bad in law; and it is further contended on her behalf that even if the notice be good and she be found not to have any permanent right, the plaintiff cannot eject her without giving her sufficient compensation for the value of the buildings standing on the land.

5. The points, therefore, that arise for determination in this appeal are:

First–Whether the notice to quit is a good notice;

Second–Whether the tenancy of the defendant is a permanent one; and

Third–Whether in the event of the first two points being decided against the defendant, she is entitled to any compensation.

6. On the first point, it is argued for the defendant-respondent, that if her tenancy be not a permanent one, it must at least be a tenancy from year to year, and the notice to quit must, as has been held in Kishori Mohun Roy v. Nund Kumar Ghoshal (1897) I.L.R. 24 Cal., 720, be a six month notice expiring with the end of a year of the tenancy; and as the tenancy is said to have been created by the kabuliyat, (1) Exhibit III, dated the 19th Chait 1257, and the notice was served on the 23rd of Ashwin 1303 and expired on the last day of Chait of that year, it did not expire with the end of a year of the tenancy, and was therefore a bad notice. We do not consider this argument valid. For though the tenancy was, as appears on the face of Exhibit III, created by that document, and the document is dated the 19th of Chait, rent has all along been paid, as is clear from the rent receipts filed (see in particular Exhibit A for 1300 and Exhibits D and DD for 1257) according to the ordinary Bengali year, so that a year of the tenancy would be the ordinary Bengali year. But then it is contended for the respondent that the notice would still be bad, as it does not expire with the end of the Bengali year but requires the tenant to vacate the holding before the expiry of the last day of Chait which is the last day of the Bengali year; and in support of this contention the case of Page v. More (1850) 15 Q.B.,684, is cited. We are of opinion that the contention is untenable, and that the case cited is distinguishable from the present. In that case the notice required the tenant to quit on the proper day at noon, so that there was an appreciable interval between the expiry of the notice and the end of a year of the tenancy. Here the notice required the tenant to quit before the expiry of the last day of the Bengali year, that is a year of the tenancy, so that there was no appreciable interval between the expiry of the notice and the end of a year of the tenancy. To say that the notice here is bad because it required the tenant to quit before instead of on the expiry of the last day of Chait, would be to indulge in subtleties which, as Lord Justice Lindley observed in Sidebotham v. Holland (1894) L.R. 1 Q.B., 378, “ought to be and are disregarded as out of place.”

7. The first point must, therefore, be determined in favour of the plaintiff-appellant.

8. On the second point it is argued for the appellant that the tenancy was created by the kabuliyat Exhibit III(1) which contains no words of inheritance, nor anything to show that the land was taken for residential or building purposes from which a permanent tenancy could be presumed; that though the land has passed by successive transfers, there is nothing to show that the lessor had knowledge of them, or registered the transferee as tenant; and that though there are pucca buildings on the land, they have not been in existence for such a length of time as would warrant an inference that the lease was one for building purposes, nor are they shown to have been erected under circumstances from which acquiescence of the landlord and the creation of any equitable right in the tenant to resist eviction can be inferred. And it is further argued that the fact of the lessor being, as is shown by the kabuliyat itself, a mutwali or manager of wakf or endowed property who has no power to grant any permanent lease, and of the estate being held by ijaradars, would prevent the inference of any permanent grant, or the creation of any permanent right by acquiescence. And the cases of Lala Beniram v. Kundan Lal (1899) L.R., 26 I.A., 58; Krishna Kishor Neogi v. Mir Mohamad Ali (1899) 3 C.W.N. 255; Shoojat Ali v. Zumeeruddeen (1866) 5 W.R., 158, and various other cases are cited in support of the argument. On the other hand, it is argued for the respondent that the tenancy was not created by the lease of 1257 but arose from the sub-division of an old tenancy in the name of Nizam Mistri; that from long possession and numerous transfers of the land, and the existence of pucca buildings on it, the lease should be presumed to have been one for building purposes and therefore permanent; and that the contention that no such presumption could arise by reason of the limited character of the lessor’s right could not be raised in appeal when it was not raised in the first Court, and even if it could be raised, it was not substantiated by evidence. And in support of this argument Dhunput Singh v. Gooman Singh (1867) 9 W.R., P.C., 3; Robert Watson & Co. v. Mohesh Narayan Roy (1875) 24 W.R., 176; Bern Madhab Banerjee v. Joy Krishna Mukerjee (1869) 7 B.L.R., 152; Prossunno Coomar Chatterjee v. Jagunnath Bysack (1881) 10 C.L.R., 25, and several other cases are relied upon.

9. These being the contentions of the parties, the decision of the second point must depend upon the determination of the following questions:

(1) Whether the tenancy in this case was created by the lease of the 19th Chait 1257/31st March 1851 or arose out of the sub-division or an ancient tenancy and carried with it the incidents of that tenancy.

(2) Whether in either case the length of possession of the tenant, the transfers of the holding, and the erection, of pucca buildings on it, are circumstances sufficient to warrant the inference that the tenancy was a permanent one, due regard being had to the fact that the estate of the landlord had been let out in ijara or farm for many years.

(3) Whether the erection of the pucca buildings in question was under circumstances such that the landlord should be presumed to have acquiesced in the same, and should be held to be estopped from disputing the tenant’s right to remain on the land.

(4) Whether the inference of a permanent grant or of acquiescence by the landlord, if it could otherwise arise, was negatived by the fact of the lessor being a trustee of an endowment and his right being consequently limited.

10. Upon the first question this is how the facts, so far as they can be gathered from the evidence, stand. There was a holding of 4 bighas and 5 cottahs of land belonging to Nizam Mistry. When it was created, what its nature was, and how much its rent was, we do not know. One Golam Kadir by a decree based on a compromise obtained 3 bighas and 13 cottahs out of that land at a rent of Rs. 14-3, and out of that land he sold to Sadhu Serang, predecessor in interest of the present defendant, 14 cottahs, the land now in dispute by a conveyance dated the 17th Pous 1256, describing the property sold as a cocoanut garden with homesteads of tenants. Sadhu Serang applied to the landlord for settlement of the land and be obtained settlement of the 14 cottahs at a rent of Rs. 2-11-8 on the 19th Chart 1257, and executed a kabuliyat (Exhibit III) on that date, in which he said that his vendor had made a Written relinquishment on the 17th Pous 1256; and he had made a written petition for settlement on the 31st Sravan of the same year.

11. These being the facts, it was argued for the respondent, that the intention and effect of the transaction evidenced by the kabuliyat of the 19th Chait 1257 was not the creation of a new tenancy, but only the recognition of the sub-division, and transfer of a part of the old tenancy of Nizam Mistry; that the relinquishment of the 17th of Pous 1256 referred to in the kabuliyat was the conveyance of that date; and that the patta referred to in that document was in the nature of a confirmatory patta. We are unable to accept this argument as valid. No doubt confirmatory pattas, as remarked by the Privy Council in Ram Chunder Butt v. Jogesh Chunder Dutt (1873) 19 W.R. 353, are common in this country, and are not inconsistent with the presumption that a prior title existed; but the patta taken by Sadhu Serang has not been produced, and judging from the language of the kabuliyat (Exhibit III), which must be taken to be the counter-part of the patta, we cannot say that the patta in this case was in the nature of a confirmatory document only. Nor can we hold that the written relinquishment referred to in the kabuliyat was the conveyance to Sadhu Serang. A conveyance and a relinquishment deed are very different documents, and the one could never have been mistaken for the other. The only reference to the old tenure of Nizam Mistry that occurs in the kabuliyat, is in the recital, and though the land settled under the kabuliyat is part of that tenure, there is nothing to show that the rent for that land was fixed with any reference to the rent of Nizam Mistry’s tenure. It is true that the rent fixed for the 14 cottahs bears the same relation to Rs. 14-3, the rent for 3 bighas 13 cottahs obtained by Golam Kadir that the area 14 cottahs bears to 3 bighas 13 cottahs, but there is nothing to show how or when the rent of Rs. 14-3 was fixed. Sadhu Serang clearly states in the kabuliyat that he takes a settlement of 14 cottahs of land at a rent of Rs. 2-11-8 according to the relinquishment of the former holder and to his own petition for settlement, and, if he refers to his purchase, he refers to it, not as the purchase of the land but as the purchase of “the fixtures and structures” upon it. We should note here that there is a slight mistranslation in the kabuliyat which appears to be somewhat misleading. In the original of the sentence translated as “I shall continue to hold and enjoy without any anxiety,” there is nothing corresponding to the words “continue to,” and the words corresponding to “without any anxiety” are the usual formal words param sukhe that is “with perfect happiness.” Beading the kabuliyat as a whole and having regard to all the surrounding circumstances we think it created a new tenancy in favour of Sadhu Serang in 1257 or 1851.

12. The kabuliyat on the face of it contains nothing to imply permanency in the tenure created. The usual words mourasi maoorari do not occur in it, nor is there anything to show that the lease was taken for building or residential purposes. But that does not necessarily make the tenancy a terminable one; as upon the authorities a permanent tenancy may still be inferred from the length of possession by the tenant and his predecessors, from the fact of the tenure having been made the subject of transfer to the knowledge of the landlord, and from the fact of pucca buildings having been erected on the land with the knowledge of the landlord. See Dhunput Singh v. Gooman Singh (1867) 9 W.R.P.C. 3, and Prossunno Coomar Chatterjee v. Jagunnath Bysack (1881) 10 C.L.E., 25. This brings us to the consideration of the second of the four questions stated above.

13. Upon that question this is bow the facts stand. The tenure in question bad been in the possession of Sadhu Serang and his heirs and their transferees for about forty-six years when this suit was brought, but there has been no mutation of names in the landlord’s office, nor any recognition of the transferees except by receipt of rent from them, the name of Sadhu Serang still continuing as that of the recorded tenant. And there are two pucca buildings on the land, one of which was erected about 40 years ago and the other about 25 years ago. This appears from the evidence of the defendant’s witness No. 1, which we see no reason to disbelieve. But there is nothing to show that these buildings were erected with the knowledge of the landlord. And it should be borne in mind that the estate of the landlord has been held all this time by a succession of ijaradars.

14. Now, are these facts sufficient to warrant the inference that the tenancy was, when first created, intended to be permanent, or was subsequently by implied agreement converted into a permanent one? We think this question, which we are considering apart from the question of acquiescence and estoppel, ought to be answered in the negative. 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. For, though the first tenant, Sadbu Serang had, before taking the settlement, purchased the land from its former holder under a conveyance (Exhibit B 2) purporting to transfer a permanent interest, in his kabuliyat by which he took the settlement he not only omitted to make any stipulation for permanent occupation, but made no mention of his having purchased the land and was content with stating that he had purchased merely the fixtures and structures thereon. This clearly indicates that the landlord was unwilling to create any permanent tenancy, and the tenant agreed to accept a non-permanent lease. The lease therefore was clearly not intended to be a permanent one at its inception. Can it then be inferred from the acts and conduct of the parties that it was by implied agreement subsequently converted into a permanent lease? We think not. If it is unlikely that the tenant would have spent money in erecting pucca buildings on the land, and the landlord would have allowed the buildings to remain on the land so long without objection, unless there was such an implied agreement, it is at least as unlikely that the landlord, who had been so cautious as not to allow the insertion of a single word in the kabuliyat which might imply permanency, would without any apparent reason come to such an agreement subsequently. Moreover there is nothing to show that the buildings were erected with the knowledge of the landlord; and the fact of their having been allowed to remain on the land without objection is explained by the circumstances that the estate of the landlord has been all along let out in ijara. We may add that the fact of the tenure in question having been the subject of several transfers has not much material bearing upon the present question, as there is no dispute about its transferability so long as the tenancy is not determined, the point in dispute being whether it is permanent.

15. We have not thought it necessary to discuss in detail the various cases cited on both sides, most of which have been considered by Mr. Justice Rampini in the case of Nabu Mondul v. Cholim Mullich (1898) 25 Cal., 896, because the general principle laid down in, or deducible from, all of them is substantially the same, and is stated in terms most favourable to the tenant in two cases to which we have referred above, namely, Dhunput Singh v. Goman Singh (1881) 10 C.L.R., 25, and Prossunno Coomar Chatterjee v. Jagun nath Bysack (1898) I.L.R., 25 Cal., 896; and the result of the application of that principle in each case must depend upon the facts of that case. Applying the principle laid down in those cases to the facts of this case, the conclusion we come to is that the mode in which the property has been dealt with and the acts and conduct of the parties generally, are not sufficient to warrant the inference, that the tenancy in question was intended to be permanent at its inception or was converted into a permanent one subsequently. The only case which requires special notice is Dunne v. Nobo Krishna Mukerji (1889) I.L.R., 17 Cal., 144. The facts of that case were very different from those of the present case. There was nothing to show under what circumstances and conditions the tenure was created; and there was evidence to show that the tenure had been held at a uniform rent for nearly one hundred years; and in that state of facts the Court held that a presumption arose that the tenure was a permanent one.

16. We come next to the question of acquiescence and estoppel. Although the tenancy might not have been a permanent one by agreement, express or implied, yet, if the landlord stood by and permitted the tenant to spend money in erecting pucca buildings on it in the belief that it was permanent, he would be estopped from denying the permanent right of the tenant. But to avail himself of the plea of acquiescence and estoppel, it is necessary for the tenant defendant to show, that in spending money in erecting the buildings, he was acting under an honest belief that he had a permanent right in the land, and the landlord knowing that he was acting under such belief stood by and allowed him to go on with the construction of the building. See Lala Beniram v. Kundan Lall (1899) L.R., 26 I.A., 58, see also Ramsden v. Dyson (1866) L.R., 1 Eng. & Irish App., 129 and Jugmohan Das v. Pallonjee (1896) I.L.R., 22 Bom., 1.

17. Now in dealing with the question whether the facts of the case warrant an inference in favour of a permanent grant, we have already indicated our reasons for thinking that the tenant Sadhu Serang, by whom the first building was created, could not have had any good ground for believing that the tenancy was a permanent one. But supposing that he and his successors in interest might have acted under any such belief, there is nothing to show that the landlord knew that they were so acting, or even that he knew of the creation of the buildings while they were being constructed. And it is clearly not enough to show that the landlord became aware of the existence of the buildings after they had been erected and then allowed them to remain. See De Bussche v. Alt (1877) L.R., 8 Ch. D., 286, and Kunhammed v. Narayan Mussadan (1888) I.L.R., 12 Mad., 320. The plea of acquiescence and estoppel must therefore fail.

18. In the view we have taken upon the second and third questions stated above; it becomes unnecessary to consider the fourth question. If it had been necessary to consider that question, we should have felt some difficulty in answering it in the affirmative upon the materials placed before us, seeing that one of the plaintiff’s own documents (Exhibit VI), shows that his lessor holds certain properties as to what kharij, that is, outside the endowment, and seeing also that the lease in his favour is itself in excess of the power of a mutwali of wakf property to grant. (See Amir Ali’s Mahomedan Law, Vol. I, p. 279). We may add that the rent receipts filed by the defendant describe the estate as the taluq of the late Mannujam Begum, and not as wakf property, and that the question of wakf not having been properly raised in the Court below, the defendant had not sufficient opportunity of meeting the point.

19. For the foregoing reasons we think the tenancy in this case is not permanent and the landlord is not estopped from denying its permanent character.

20. It remains now to consider the third and the last point raised in this appeal, namely, that relating to compensation.

21. The defendant claims compensation for the buildings erected on the land. Such claim could not, in the case of a tenant, come within the scope of Section 51 of the Transfer of Property Act, even if that Act applied to this case notwithstanding Section 2, Clause (c), because a tenant could not possibly believe in good faith that he was absolutely entitled to the land. The provision of the Transfer of Property Act relating to a tenant’s right with reference to structures raised on the land held by him, is that contained in Clause (h) of Section 108, which only authorizes the tenant to remove structures raised. The same is the extent of his right under the law of this country in cases not governed by the Transfer of Property Act, as was held by a Full Bench of this Court in the case of Thakoor Chunder Pramanik v. Ramdhone Bhuttacharji (1866) 6 W.R. 228. And the right of the tenant defendant to remove the buildings raised by her or her predecessor in interest was not disputed by the learned Advocate-General, who appeared for the appellant. But there is no authority in support of the contention that a tenant in a case like this is entitled to compensation for buildings erected by him. The two cases relied upon by the learned Counsel for the defendant, Duttetrayi Rayaji Pai v. Sridhor, Narain Pai (1892) I.L.R., 17 Bom., 736, and Yeshiuadabai v. Ram Chandra Takaram (1893) I.L.R., 18 Bom., 66, are clearly distinguishable from the present. In the former there were, as Mr. Justice Candy, who delivered the judgment of the Court, observes,–special circumstances “the near relationship of the parties, thus residing in close vicinity to each other, their ownership of the surrounding lands pointing to the presumption that the plaintiff by his conduct sanctioned the construction of the building and well and afforded hope and encouragement to the defendant that he would be allowed to remain in peaceable possession of the same, or at least would not be ejected without a reasonable return for the expenditure incurred by him.” And in the latter case the land was found to be fazendari land from which the tenant could not be ejected, and it was further found that the landlord was precluded by his father’s and his own conduct from recovering the land and premises from the tenant in the manner he sought.

22. The defendant’s claim for compensation in this case is therefore untenable.

23. The result is that this appeal must be allowed, the decree of the Court below, so far as it dismisses the claim for ejectment of the defendant, set aside, and in lieu thereof a decree made awarding the plaintiff possession of the land in dispute upon ejectment of the defendant, but allowing the defendant to remove the buildings and other structures standing on the land within six months from this date. The appellant will recover from the respondent his costs in this Court and in the Court below.

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