JUDGMENT
B.B. Ghose, J.
1. These four appeals arise out of a decision of the learned President of the Tribunal under the Calcutta Improvement Act with regard to the compensation awarded for acquisition of land in which there was a dispute between the landlords and the tenants as regards the apportionment of the compensation. The lands were acquired out of two promises: 3 chittakis 9 sq., ft. out of premises No. 6 Circular Garden Reach Road and 3 chittaks out of No. 3 Circular Garden Reach Road. The landlords are two sets of persons with regard to each property, one set representing the secular interest in a half-share and the other representing the debutter interest in the other half share of both the properties. The tenants held under both sets of landlords. It is not necessary in the appeal to state the nature of the proceedings between the two sets of landlords. They have adjusted their differences and it is now admitted by them that one-half of the property is debutter and the other half secular. The dispute is between the interest of the landlords and tenants, the latter claiming that they had a permanent tenancy right in the lands in question and that compensation should be awarded to them from that point of view. The learned President held that the tenants have succeeded in establishing their claim to a permanent right and apportioned the compensation according to that view. The landlords have preferred separate appeals, two appeals by the two sets of landlords in each case and their contention is that the tenants have not been able to estaablish any permanent interest in the premises in question. The struggle between the landlords and the tenants is mainly that with regard to the question about the title to the land. The amount of compensation is very small and it has not been argued before us that the compensation should be apportiond in any manner different from what the Collector did on the basis that the tenants had no permanent right or what the learned President has done on the basis that the tenants had a permanent right to the land in question. I shall therefore confine my judgment to the question whether the tenants have a permanent right in the two premises, which are on the opposite side of a passage leading to the Circular Garden Reach Road.
2. Appeals Nos. 15 and 16 are by claimant No. 4 who had been appointed Receiver to the secular property and he represents the original claimant No. 1. Claimant No. 5 has bean appointed by the court as Receiver of the debutter estate of the Idol Sri Sri Gopal Jiu Thaknr, and he represents the claimants who made their claim as shebaits of the Thakur. The respondents in all the four appeals are represented by claimant No. 3. The case of the appellants is that the tenants held as tenants from month to month, It appears from the evidence on the record that in the books of the landlord premises No. 3 stands in the name of one Nabin and with regard to premises No. 6 the name of Parikshit, the father of Nabin, appears as the tenant. The rent of No. 3 is Rs. 45 per year, and the area is said to be 2 cotlas, 2 chhitakas, that of No. 6 is Re. 54 and the area, according to the respondents’ cage, is 2 cottas, The appellants however contend that the area of the tenancy is only 1 cotta 2 chhitakas. In my view, nothing much depends upon the dispute as regards the area of the lands. It was no doubt contended on behalf of the appellants that it is of some importance as showing a probable variation in the rent, because when the tenants say that the area of the land was greater than what is now found by actual measurement, the contention of the learned Advocate is that the present rate of rent is charged on the present area, and if the original tenancy consisted of a larger area, then it follows that the rate of rent per cotta roust have been increased, That teems to me to be rather a speculative argument because the tenant may say that the area is really greater than the actual area held by him, and, in my opinion, no inference can be drawn from the fact that the tenancy was alleged to consist of a larger area than what it is actually found to be on measurement. Having disposed of this minor point the main question remains to be dealt with.
3. The learned President, of the Tribunal has held upon the facts found by him that the reasonable inference is that both the tenancies were at their inception of a permanent nature. It should be stated here that there is no reason to doubt the proposition that the inference from the facts alleged and found as to whether a certain tenancy is permanent; or not is an inference of law and not one of fact. This has been the law as understood all along and has been finally laid down by their Lordships of the Judicial Committee in the case of Dhanna Mal v. Moti Sagar . The learned President has referred to a number of cages in his judgment in which the question whether a certain tenancy was of a permanent nature or not was discussed. I shall. deal with some of them later on. But it is necessary first to discuss the facts found by the learned President as to whether those facts are supported by the evidence in this case. As was observed by their Lordships of the Privy Council in the case of Chidambara, Sivaprakasa v. Veerama Reddi 68 Ind. Cas. 538 : A.I.R. 1922 P.C. 292 : 41 A. 286 : 45 M. 586 : 16 L.W. 102 : 31 M.L.T. 54 (1922) M.W.N. 749 : 43 M.L.J. 640 : 37 C.L.J. 199 : 27 C.W.N. 245 (P.C.), that in such cases as these, each case must be dealt with on its own facts, special regard being had to the evidence and the circumstances therein, and it is necessary therefore to go into the facts first and to find what is the legitimate inference from these facts. The learned President found, first, that the origin of the tenancy is not known and, secondly, that the existence of the tenancy has been traced back for a period of at least 90 years. These two findings may be taken together. The documentary evidence as to this tenancy apart from the rent receipts produced by the tenants which will be dealt with separately are only two. Exhibit 4, dated 30th September 1891, is a deed of partition between the grandfather of claimant No. 3 Nabin and his brother. This document has been aim itted by the learned President under Section 13(a) Evidence Act, as showing a transaction by which a right was claimed. In this document, there was a recital in para 9 that the lands in schedule kha were held by them mukarrari kayemi interest.
4. The rent, payable on account of the lands is not mentioned. It is contended on be-half of the appellants that this document is not, admissible under the provisions of Section 13(a), Evidence Act, with reference to the question of the permanency or otherwise of the tenancy. It seems to me that Section 13(a) only refers to the admissibility of any transaction by which a right is asserted. In my judgment, the deed of partition would be admissible in order to establish the right to effect the partition, because by that deed the right to partition the property was asserted. But it would be a far fetched application of this section to say that if in a deed of partition between two persons rights are alleged with reference to the property which either has or has not any reference to the right to partition, those allegations should be considered as a transaction by which the right is asserted. Properly speaking, therefore this document would not be admissible for the purpose of establishing a mukarrari right in the tenancy in question. I need not elaborate the point further, but I would only refer to two oases to which our attention has been drawn by the learned Advocate for the appellant: viz., Bansi Singh v. Mir Amir Ali 11 C.W.N. 703, and Brojendra Kishore v. Mohim Chandra . Assuming that this document is admissible to prove a kaimi mukarrari mourashi right of the tenant in these premises, it seems to me that the learned President has made a further use of the statement contained in the document which in my judgment is not warranted by the rules of evidence. There is a recital in the preamble of the document that Nabin and his father came to Kidderpore when Nabin was quite an infant and there at the place called Kali-bazar started a cloth business and he and his father carried on that business when Brindaban the second sou was born in a rented house at Kidderpore.
5. The learned President has used this in order to come to a finding that the premises in question were leased out to the father Parikshit somewhere about 1837 and he arrives at that conclusion from the fact that Brindaban was born in thai year. The appellant contended that, these recitals cannot be used as evidence in the case. Dr. Basak on behalf of the respondent contended that this statement is admissible under Section 32, Sub-section (7), Evidence Act. He contends that any statement of relevant facts when it is contained in any dead which relates to any sack transaction as is mentioned in Section 13, Clause (a), is admissible and he says that the date of the taking of the lease is a relevant fact and as the question of birth of Brindaban makes the date of the taking of the lease probable or improbable, it is also relevant under Section 9, Evidence Act, and that therefore this statement is admissible in evidence. I do not know whether I have properly appreciated this contention of Dr. Basak, But in my view the statements in that document as regards Nabin and his father’s going to Kidderpore and Brindaban being born in a rented house are not admissible. Besides I do not see how this recital can establish anything about the taking of the lease of those premises. It is not stated that the lease was taken of these premises at the time; it is only stated that Brindaban was born in a rented house.Therefore the inference that the learned President has made from those statements that the lease was taken some time before 1837 cannot be made upon the evidence. Then the question is whether the learned President is correct in his conclusion that the origin of the tenancy is not known, In my judgment that cannot be said with regard, to these tenancies, The exact date of the creation of the tenancy may not be known; but it is quite certain that the tenancy with regard to one was created in the name of Nabin’s father, Parikshit, and with regard to the other it was created in Nabin’s name, may be while his father was yet alive. In my opinion, we can only say with regard to a tenancy that its origin is unknown when we cannot trace out the person who created the tenancy or in whose favour it was created. When both the grantor and the grantee cannot be traced and the creation of the tenancy is lost in antiquity, it can only be said then that the origin of the tenancy is unknown. In my opinion therefore the learned President’s finding with regard to the first two points is not supported by the evidence, that is, that the origin of the tenancy is not known and that it has been traced back to 90 years. The date of the creation of the tenancy cannot be fixed definitely, but from the evidence it can be assumed that both the tenancies ‘ware created before the death of Parikshit that is before 1864; and in this respect the partition dead is evidence, because premises No. 3 which stands in the name of Nabin was said to be the subject-matter of partition.
6. The only other documentary evidence as I have already mentioned is Ex. 14. That does not give any indication as regards the nature of the tenancy. This deed is dated 15th December 1896. It was executed by Nabin in favour of his grandson, the present claimant No. 3 and he made a gift of the premises in his favour. No mukarrari right was alleged in that document. But it showed that there was a transfer of the rights of Nabin in favour of his grandson.
7. The third point found by the learned President is that during the period of the tenancy there has been one succession by inheritance in the case of one of the tenancies and one case of transfer by gift with regard to both; and both the devolutions have been recognized by the landlord. This finding of the learned President cannot be contested, With regard to premises No. 6 there has been succession and as I have already stated both of them have been transferred. The difficulty is with regard to recognition by the landlord. This is contested by the learned Advocate for the appellant. He points out from the rent receipts filed by She tenants that rent receipts were always being given in the names of the original tenants with regard to premises No. 6 in the name of Parikhit with the cent ruction of the word ‘sarbarahakar’ as Nabin and with regard to Nabin’s tenancy, premises No. 3, Nabin’s name stands throughout, and the money is paid either marfat or sarbarahakar. The learned President has therefore said it somewhat broadly that this devolution has been recognized by the landlords. The only thing that can be said is this that the landlord’s agents having known of this devolution have accepted rent subsequent to the succession and gift in the names of their original tenants. It appears from the evidence of Kailash, the father of claimant No. 3, that he showed the partition deed and the deed of gift to the gumastha. Assuming that to be true, it does not follow that the landlords admitted the right of the tenant as mokarrari, that it was capable of transfer. As a matter of fact, if this had stood alone, it would be difficult from one succession and one case of transfer in favour of the grandsons of the tenant to draw an inference that the tenancy was mukarrari one.
8. The fourth thing found by the learned President was that the masonry structures had been built more than 80 years. As to the length of the period during which the structures remained on the land, the evidence is very meagre, but it is true that there are some brick-built structures on the land. It was said that there was one brick-built room in premises No 3, In No. 6 there is a pucca room, about 20 cubits long and. 5 or 5 1/2 cubits broad, and there is a verandah in front of it having a tiled roof which is about 6 cubits wide. It can be assumed from the evidence that these structures were built by the tenants. As it appears that the premises were let out for the purpose of holding stoops, it can very easily be inferred that the shop-rooms were to be built by tie tenants. But I do not think that any stress can be given to the fact whether bricks were need for the structures or not. In my opinion, the question depends upon the nature of the structures. If a considerable amount of money is spent on structures made of earth, that fact may stand in favour of the tenants under certain circumstances and the use of the bricks under other circumstances may be of no use in this connexion. A tenant here may build structures on the land rented by him which are not of a vary substantial nature for the purpose of holding shops. But that itself cannot lead to the inference that the original letting was of a permanent nature. In this case it has been found that the structures are not of a substantial nature. In the deed of gift executed by Nabin in favour of claimant No. 3, the entire land with the structures on it was valued at Rs. 1,500 and according to the award of the Collector the structures were valued at Rs. 1,000.
9. The fifth and the sixth items found by the learned President are: fifth, the rents have not been varied; and sixth, saleable values and rents of lands in the locality have risen very considerably during the period.
10. It may be assumed that the learned President’s finding as regards rent not being varied is correct. But as regards the saleable values of lands and the rent of the lands having increased in this particluar case is almost nil. (After discussing the evidence on the point, his Lordship proceeded as follows) This does not show that taking the evidence of these witnesses the rent was much too low. With these facts one must take into consideration the other fact which has been admitted on behalf of the respondents. The respondents have filed rent receipts from 1897 to 1918. From 1908 no rent was received for these lands, The tenant’s witness Khirode says:
No one of the Mondals have taken any rent from the tenants 10 or 12 years or so. The co-sharers are quarrelling among themselves.
11. The question therefore is: Was there such an increase of rent before 1905 in the locality from which it can be inferred that the landlords having allowed the tenants to remain in occupation on payment of Rs. 54 or Rs. 45 for the premises in question without attempting to increase the rent according to the prevailing rate in the locality, an inference can be drawn that the tenants held at a fixed rate of rent? I am prepared to hold, as I have held in some previous cases, that where letting value of the land has increased to a great extent in the locality but a particular tenancy is held at a low rent for a considerable number of years, that is an element which with other facts may lead to an inference that, the rent was fixed in perpetuity as otherwise the landlord would have asked for an increase is the rent. But in the present case, there is no evidence on which such an inference can be made. The only evidence as I have said is that the rents have increased from 1911 enormously. That was after the quarrel among the several landlords, was such that they could not even realize the rent that was settled with the tenants, not to speak of asking for increase of rent or seeking ejectment by terminating the tenancy by a proper notice to quit. Moreover, it has not been shown that the rent was lower than the rent, that pro vailed before 1908 in the locality. It has however been contended on behalf of the respondents by Dr. Basak that the rent fixed was rather too high having regard to the evidence that the condition of the land was jungly when Kailash saw it and he saw it sometime between 1854–77 He contends that from the fact that, the rent was fixed at a very high rate, a presumption should be drawn that the rent was fixed in perpetuity, because the landlord when fixing the rent took into account the probable rise in rent in future; that is however a point which is raised for the first time, here, which might be worthy of consideration if sufficient ground had been made for it by the tenant in the trial Court.
12. It does not appears that the rent was too high or too low with refrence to the rent prevailing in the locality. This is my view with regard to the facts found by the learned President. That, being so, the question is whether the inference of a permanency arises in such a case as this. It was laid down in the case, of Seiuratnam Aiyar v. Venkatachala Gounden 56 Ind. Cas. 117 : A.I.R. 1920 P.C. 67 : 47 I.A. 76 : 43 M. 567 : (1920) J.M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 25 C.W.N. 485 (P.C.), by the Privy Council that permanency is not a universal and integral incident, of an under-raiyats holding; if claimed, it must be established. This may be done by proving a custom, a contractor a title; and possibly by other means. As in that case, the custom is out of the question in the presents case; there is no suggestion of a custom. The contract has not bean proved. Then the only question is the question of title. In that case it was found that the tenants were in possession from time immemorial, that they had been making alienations for a long time, have been paying a uniform rate of rent and have made large improvements and from these the inference was drawn that the tenancy was permanent in its inception. Similar facts were found in the case of Chidambara Sivaprakash v. Veerama Reddi 68 Ind. Cas. 538 : A.I.R. 1922 P.C. 292 : 41 A. 286 : 45 M. 586 : 16 L.W. 102 : 31 M.L.T. 54 (1922) M.W.N. 749 : 43 M.L.J. 640 : 37 C.L.J. 199 : 27 C.W.N. 245 (P.C.). At page 304 Page of 49 I.A.–[Ed.] the facts found were that the defendants having been in possession and occupation from before 1829 dealt with those lands asserting their permanent rights.
by partitioning their holdings, transferring and mortgaging them with the knowledge and acquiescence of the plaintiff and his agents.
and received compensation for lands that had been acquired for public purposes; and from these facts and circumstances, the inference was drawn that the defendants had fully established their prescriptive right of occupancy. In the case of Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : A.I.R. 1024 P.C. 65 : 56 I.A. 83 : 47 M 337 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : L.R. 5 A. (P.C.) 33 (P.C.) it was held under the circumstances, that no inference of a permanent; tenancy could be made and in this case it was further laid down, which would be relevant as regards one of the questions involved in the pre pent appeal that the grant of a permanent right by a shebait or a trustee would have been in breach of his duty and therefore could not be presumed, Their Lordships approved of the case of 13 I.C. 596 Satya Sri v. Kartic 13 Ind. Cas. 596 which laid down this principle as well established The latest case in the Privy Council is Subramanya Chettiar v. V.P. Subramanya Mudaliar 116 Ind. Cas. 601 : A.I.R. 1929 P.C. 156 : 56 I.A. 248 : 52 M. 549 : 33 C.W.N. 734 : 31 Bom. L.R. 830 : 30 L.W. 30 : 57 M.L.J. 1 : (1929) M.W.N. 561 (P.C.), where it was laid down that long possession at a uniform rate of rent and a recent transfer do not necessarily give rise to an inference of a permanent tenancy. As I have already said on the authority of the Judicial Committee that each case must be dealt with on its own facts, we should therefore consider the facta of the present case and say whether the inference of permanency can be legitimately made.
13. One important fact stands in the way of such an inference and that fact appears from the rent receipts which the tenants have produced. They show with regard to both the tenancies that the tenant Parikhit has been described as “bharatia” and so also is Nabin. The word “bharartia” is generally used with regard to tenants who have rented a house temporarily or from month to month. It is seldom used with regard to a permanent tenant or with regard to a tenant who has taken a lease of a piece of land only from the landlord. It sppears from these rent receipts that the landlord’s agents wanted not only to say that the tenants were temporary tenants with regard to the lends but that they were also tenants with regard to structures. But there is something more. In some of the rent receipts it will be found, for instance Ex. 5 (77), 5(80) bearing different dates, that Nabin has been described as a tenant-at-will. I ought to say here, there are some receipts, where it has been said that the tenant is Parikhit, ‘settled” with Nabin. This is a mistranslation, the word “settled with” ought to be read as “sarbarakar.” But there is no explanation why a man who has acquired a mourashi mukarrari lease from the landlord should accept receipts which not only do not describe him as mourashidar but on the contrary describe him as a tenant-at-will, or at, bharatia. With regard to this feci, there is the oral evidence of Kailash, the father of the tenant, who says this:
I never tried to have our holdings described in the dakhlias as mourashi mukarrari. I had mentioned the matter to my father-in-law but he told me not to worry about it and not to mind what the landlords wrote in the dakhila and all that I had to see was that the rent was being taken at the old rate. I wold not mind how the holdings were described in the dakhilas. The rent is not described in any dakhila as a monthly rent. I would object if that was done.
14. How is this indifference explained both on the part of Nabin and Kailash? I could quite understand this attitude of mind if there was a proper document creating a tenancy as mourashi mukarrari tenancy. But where there is no such document if the landlord refused to recognize his mourashi mukarrari interest and gave a dakhila describing the tenant as a tenant-at-will, if the tenant had any higher right, he would certainly object to hie right not being properly described in the rent receipt,. This shows conclusively that the landlord never intended to give any permanent lease to the tenant, nor did the tenant venture to assert to. the knowledge of the landlord that his lease was really a permanent one and that he was not a mere tenant-at-will. As against these receipts the respondents point out that one of their witnesses, witness No. 2 for the landlord, one Rishikesh, says that he has a mourashi mukarrari title under these landlords of premises No. 3(1) Ganesh Some Lane. But the dakhila he produced Ex. C shows that he has been described as a monthly tenant-at-will. From this it is contended that the landlords were in the habit of describing their permanent tenants as monthly tenants. Whether that is so or not, depends upon the fact whether the witness has got a proper document creating mourashi mukarrari interest If he hag got such a document he may be careless about how he is described in his rent receipts. If he has not any such document he will hardly be saved from trouble for having taken such a receipt as that.
15. It shows only one thing that the landlord refused to consider him as a permanent tenant. Taking all the facts of this case into consideration it seems to me that no inference can be drawn that the tenancy of claimant No. 3 was permanent at its inception. It has been argued on behalf of the appellant that as the property was partly debutter no permanent lease could have been granted by the she-bait. Mr. Banerjee on behalf of the respondent rightly argued that there is no evidence as to the date when this property was granted as debutter. The learned President fixed 1847 as the date of the debutter coming into existence. The evidence ban beer, carefully analyzed. There is nothing to support this conclusion. On the other hand, there may be documents in the possesion of the Receiver which might show the date of the creation of the debutter but these documents have not been produced. Moreover, as I have pointed out, there is nothing to show that the tenancy was created before 1837. These two things are quite uncertain. But from the evidence on behalf of the tenants it appears that all along they were paying half of the rent to the shebaits of the debutier and half to the other landlords who have the secular right. From that it is argued that the tenants did not prove that at any time during the course of their tenancy they paid the full rent to the owners as if it was secular property.
16. The inference which the appellant’s Advocate asks us to draw is that it was debutter when the lease was granted and that being so, that is another ground on which the inference of permanency should not be drawn. It is very difficult to come to that conclusion on that point, because neither the date of the creation of the debutter nor the date of the tenancy can be found in this case. But on other grounds as already stated the tenants’ interest cannot be taken as a permanent one. That being so, the award made by the learned President is set aside; and as I have said that no argument was addressed to us as regards apportionment of the compensation, the amount being very small we simply affirm the award of the Collector. Whether the tenant’s interest is that of a monthly tenant or a yearly tenant it is unnecessary to discuss in this case. These appeals are, therefore, allowed with costs in the manner stated above.
17. Claimants Nos. 4 and 5 have adjusted their differences.
18. With regard to claimant No. 5 there will be no order as to costs in Appeals Nos. 15 and 16. The tenant (claimant No. 3) will be liable to pay one-fourth of the costs of the paper bocks in all the appeals and two gold mohurs as hearing-fee in each appeal. The landlord’s share of compensation is to be divided equally between claimants Nos. 4 and 5. Costs of the lower Court as between the appealing claimants Nos 4 and 5 and the tenant-claimant No. 3 will be paid by the tenant-claimant No. 3 respondent to landlords
Bose, J.
19. I agree