Authored By : B.K. Mullick, Kingsford

B.K. Mullick, J.

1. The defendant No. 2 holds a jagir tenure in Mauza Mawahar of which the plaintiff is the admitted proprietor. Outside that jagir is a piece of homestead land upon which there stands a hut consisting of mad walls and thatched roof. The plaintiff alleges that Kuber Misser, one of the successors of the original tenant, made a deed of gift of this land to the defendant No, 2, that defendant No. 2 sold it to defendant No. 1 and that as neither the original tenant nor defendant No. 2 had any transferable interest in the land, defendant No. 1 is liable to be ejected. It is admitted before us that no rent has ever been paid for the land; that the original lessee was admitted into the land by plaintiff's predecessor about 50 years ago, i.e., before the Transfer of Property Act came into operation and that the tenancy is heritable.

2. The plaintiff's case is that the original lessee was a tenant-at-will. The defendant No. 1, in his written statement, made an allegation that Saligram Misser, one of the successors of the original tenant, became absolute owner of the house and sold it to him. He denies the title of Kuber Misser, but asserts that even if Ruber Misser transferred the house to Saligram by a deed of gift, as alleged by plaintiff, he had a perfect right to do so as the tenancy is transferable. The learned Munsif found that Saligram had no transferable interest in the land, and decreed the suit.

3. In appeal the learned District Judge adopted a ' line of reasoning which dues not commend itself to us. He found that Kuber Misser transferred his jagir tenure to Saligram by a deed of gift, dated the 13th September 1911, together with the homestead land in suit. He was of opinion that on the analogy of section 182, Bengal Tenancy Act, which empowers a raiyat, who holds homestead land in a village otherwise than as a part of his holding, to acquire occupancy rights in that homestead Jand, the occupant of the homestead now in suit is untitled to hold it on the same terms as the jagir tenure. He accordingly held that in the absence of evidence to the contrary, the onus in respect of which was upon the plaintiff, Kuber Misser's interest was transferable. It is admitted on both sides that this argument is fallacious, Before us the case of adverse possession, weakly suggested in the written statement, has been abandoned and the parties have narrowed the dispute to the issue whether the original lessee had a transferable interest. According to plaintiff Kuber Misser was the last heir of the original grantee and made a deed of gift in favour of Saligram. According to defendant No. 1, Kuber Misser had no title at all and Saligram was the last heir.

4. The learned Munsif has not considered it necessary to determine whether Kuber or Saligram was the last representative, but he has decreed the suit on the ground that the original grantee had not a transferable interest. In my opinion this decision is right.

5. The cases of Banee Madhub Banerjee v. Joy Kishen Mookerjee 12 W.R. 495 : 7 B.L.R. 152 and Doorga Pershad Misser v. Brindabun Sookul 15 W.R. 274 : 7 B.L.R. 159 are in favour of the defendant and would support the argument that, before the Transfer, of Property Act, a lease of a plot of land given for residential purposes was, by the custom of the country, transferable, but the correctness of this proposition, which is based on a dictum of Sir Barnes Peacock, is now doubted and the effect of the recent decisions is, that when a landlord sues a person on the allegation that he is a trespasser and that person sets up a transfer from a tenant, it is for the latter to prove, first of all, the tenancy and, secondly, the validity of the transfer.

6. With regard to tenancies of homestead land created before the Transfer of Property Act the tendency of these decisions has been to establish that in the absence of evidence to the contrary, the burden of proof being upon the tenant, these tenancies were non-transferable. The decision of Maclean, C.J., in Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 is clear authority upon this point. The only exception made to the above rule is when there has been an erection of pakka buildings or a standing by on the part of the landlord while the tenant spends a large sum upon the land.. [See the reference and judgment of Rampini, J., in Nabu Mondul v. Cholim Mullik 25 C. 806 (F.B.) : 2 C.W.N. 405 where the previous authorities are fully reviewed.] In any event, mere long continued possession cannot give rise to a presumption of transferability.

7. In the suit before me, although possession and heritability for more than 50 years has been proved, there is no evidence of custom or of the building of permanent buildings or a standing by to take the case out of the operation of the ordinary rule. I think, therefore, that the decree of the learned Munsif is right and that the original tenant had no transferable interest. Defendant No. 1 is, therefore, a trespasser and is liable to be ejected. I would decree the appeal and restore the judgment of the Munsif with costs throughout.

Kingsford, J.

I agree.