Authored By : Banerjee, J.F. Stevens

Banerjee and J.F. Stevens, JJ.

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

2. The defence was that the defendant knew nothing of thetaluq No. 92 being wakf or endowed property; that the defendant was not atenant-at-will; that the notice was bad in law; that the land in dispute waspart of an ancient mourasi mocorari holding of Nizam Mistry and was purchasedby Shadhu Serang in 1256 from Gholam Kadir who had obtained the greater part ofthat holding under a compromise decree against Nazim Mistrys widow; thatShadhu Serang erected a pucca building on the land; that the land with thebuilding has, by successive transfers, come to the hands of the defendant, whohas built another pucca house on the land and has been holding the same as apermanent tenure on payment of the fixed rent of Us. 2-11-8; and that by thelocal custom of taluq Kidderpore tenants of homestead lands have permanentrights 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 apermanent right to the land, and it gave the plaintiff a decree only forarrears of rent.

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

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

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

Second--Whether the tenancy of the defendant is a permanentone; and

Third--Whether in the event of the first two points beingdecided against the defendant, she is entitled to any compensation.

6. On the first point, it is argued for thedefendant-respondent, that if her tenancy be not a permanent one, it must atleast be a tenancy from year to year, and the notice to quit must, as has beenheld in Kishori Mohun Roy v. Nund Kumar Ghoshal I.L.R (1897) 24 Cal., 720 [LQ/CalHC/1897/61] , be asix month notice expiring with the end of a year of the tenancy; and as thetenancy is said to have been created by the kabuliyat, (1) Exhibit III, datedthe 19th Chait 1257, and the notice was served on the 23rd of Ashwin 1303 andexpired on the last day of Chait of that year, it did not expire with the endof a year of the tenancy, and was therefore a bad notice. We do not considerthis argument valid. For though the tenancy was, as appears on the face ofExhibit III, created by that document, and the document is dated the 19th ofChait, 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) accordingto the ordinary Bengali year, so that a year of the tenancy would be theordinary Bengali year. But then it is contended for the respondent that thenotice would still be bad, as it does not expire with the end of the Bengaliyear but requires the tenant to vacate the holding before the expiry of thelast day of Chait which is the last day of the Bengali year; and in support ofthis contention the case of Page v. More (1850) 15 Q.B.,684, is cited. We areof opinion that the contention is untenable, and that the case cited isdistinguishable from the present. In that case the notice required the tenantto quit on the proper day at noon, so that there was an appreciable intervalbetween the expiry of the notice and the end of a year of the tenancy. Here thenotice required the tenant to quit before the expiry of the last day of theBengali year, that is a year of the tenancy, so that there was no appreciable intervalbetween the expiry of the notice and the end of a year of the tenancy. To saythat the notice here is bad because it required the tenant to quit beforeinstead of on the expiry of the last day of Chait, would be to indulge insubtleties 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 ofplace."

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

8. On the second point it is argued for the appellant thatthe tenancy was created by the kabuliyat Exhibit III(1) which contains no wordsof inheritance, nor anything to show that the land was taken for residential orbuilding purposes from which a permanent tenancy could be presumed; that thoughthe land has passed by successive transfers, there is nothing to show that thelessor had knowledge of them, or registered the transferee as tenant; and thatthough there are pucca buildings on the land, they have not been in existencefor such a length of time as would warrant an inference that the lease was onefor building purposes, nor are they shown to have been erected undercircumstances from which acquiescence of the landlord and the creation of anyequitable right in the tenant to resist eviction can be inferred. And it isfurther argued that the fact of the lessor being, as is shown by the kabuliyatitself, a mutwali or manager of wakf or endowed property who has no power togrant any permanent lease, and of the estate being held by ijaradars, wouldprevent the inference of any permanent grant, or the creation of any permanentright by acquiescence. And the cases of Lala Beniram v. Kundan Lal; Krishna Kishor Neogi v. Mir Mohamad Ali :3 C.W.N. 255; Shoojat Ali v. Zumeeruddeen (1866) 5 W.R., 158, and various othercases are cited in support of the argument. On the other hand, it is argued forthe respondent that the tenancy was not created by the lease of 1257 but arosefrom the sub-division of an old tenancy in the name of Nizam Mistri; that fromlong possession and numerous transfers of the land, and the existence of puccabuildings on it, the lease should be presumed to have been one for buildingpurposes and therefore permanent; and that the contention that no suchpresumption could arise by reason of the limited character of the lessorsright 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 insupport of this argument Dhunput Singh v. Gooman Singh (1867) 9 W.R., P 3;Robert Watson & Co. v. Mohesh Narayan Roy (1875) 24 W.R., 176; Bern MadhabBanerjee v. Joy Krishna Mukerjee (1869) 7 B.L.R., 152; Prossunno CoomarChatterjee v. Jagunnath Bysack (1881) 10 C.L.R., 25, and several other casesare relied upon.

9. These being the contentions of the parties, the decisionof the second point must depend upon the determination of the followingquestions:

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

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

(3) Whether the erection of the pucca buildings in questionwas under circumstances such that the landlord should be presumed to haveacquiesced in the same, and should be held to be estopped from disputing thetenants right to remain on the land.

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

10. Upon the first question this is how the facts, so far asthey can be gathered from the evidence, stand. There was a holding of 4 bighasand 5 cottahs of land belonging to Nizam Mistry. When it was created, what itsnature was, and how much its rent was, we do not know. One Golam Kadir by adecree based on a compromise obtained 3 bighas and 13 cottahs out of that landat 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 indispute by a conveyance dated the 17th Pous 1256, describing the property soldas a cocoanut garden with homesteads of tenants. Sadhu Serang applied to thelandlord for settlement of the land and be obtained settlement of the 14cottahs 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 Writtenrelinquishment on the 17th Pous 1256; and he had made a written petition forsettlement 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 ofthe 19th Chait 1257 was not the creation of a new tenancy, but only therecognition of the sub-division, and transfer of a part of the old tenancy ofNizam Mistry; that the relinquishment of the 17th of Pous 1256 referred to inthe kabuliyat was the conveyance of that date; and that the patta referred toin that document was in the nature of a confirmatory patta. We are unable toaccept this argument as valid. No doubt confirmatory pattas, as remarked by thePrivy 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 thata prior title existed; but the patta taken by Sadhu Serang has not beenproduced, and judging from the language of the kabuliyat (Exhibit III), whichmust be taken to be the counter-part of the patta, we cannot say that the pattain this case was in the nature of a confirmatory document only. Nor can we holdthat the written relinquishment referred to in the kabuliyat was the conveyanceto Sadhu Serang. A conveyance and a relinquishment deed are very differentdocuments, and the one could never have been mistaken for the other. The onlyreference to the old tenure of Nizam Mistry that occurs in the kabuliyat, is inthe recital, and though the land settled under the kabuliyat is part of thattenure, there is nothing to show that the rent for that land was fixed with anyreference to the rent of Nizam Mistrys tenure. It is true that the rent fixedfor the 14 cottahs bears the same relation to Rs. 14-3, the rent for 3 bighas13 cottahs obtained by Golam Kadir that the area 14 cottahs bears to 3 bighas13 cottahs, but there is nothing to show how or when the rent of Rs. 14-3 wasfixed. Sadhu Serang clearly states in the kabuliyat that he takes a settlementof 14 cottahs of land at a rent of Rs. 2-11-8 according to the relinquishmentof the former holder and to his own petition for settlement, and, if he refersto his purchase, he refers to it, not as the purchase of the land but as thepurchase of "the fixtures and structures" upon it. We should notehere that there is a slight mistranslation in the kabuliyat which appears to besomewhat misleading. In the original of the sentence translated as "Ishall continue to hold and enjoy without any anxiety," there is nothingcorresponding to the words "continue to," and the words correspondingto "without any anxiety" are the usual formal words param sukhe thatis "with perfect happiness." Beading the kabuliyat as a whole andhaving regard to all the surrounding circumstances we think it created a newtenancy in favour of Sadhu Serang in 1257 or 1851.

12. The kabuliyat on the face of it contains nothing toimply permanency in the tenure created. The usual words mourasi maoorari do notoccur in it, nor is there anything to show that the lease was taken forbuilding or residential purposes. But that does not necessarily make the tenancya terminable one; as upon the authorities a permanent tenancy may still beinferred from the length of possession by the tenant and his predecessors, fromthe fact of the tenure having been made the subject of transfer to theknowledge of the landlord, and from the fact of pucca buildings having beenerected 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. JagunnathBysack (1881) 10 C.L.E., 25. This brings us to the consideration of the secondof the four questions stated above.

13. Upon that question this is bow the facts stand. Thetenure in question had been in the possession of Sadhu Serang and his heirs andtheir transferees for about forty-six years when this suit was brought, butthere has been no mutation of names in the landlords office, nor anyrecognition of the transferees except by receipt of rent from them, the name ofSadhu Serang still continuing as that of the recorded tenant. And there are twopucca buildings on the land, one of which was erected about 40 years ago andthe other about 25 years ago. This appears from the evidence of the defendantswitness No. 1, which we see no reason to disbelieve. But there is nothing toshow that these buildings were erected with the knowledge of the landlord. Andit should be borne in mind that the estate of the landlord has been held allthis time by a succession of ijaradars.

14. Now, are these facts sufficient to warrant the inferencethat the tenancy was, when first created, intended to be permanent, or wassubsequently by implied agreement converted into a permanent one We think thisquestion, which we are considering apart from the question of acquiescence andestoppel, ought to be answered in the negative. When the origin of a tenancyand the circumstances attending its creation are not known, evidence of themode of dealing with the land demised and of the acts and conduct of theparties generally, constitutes the best and indeed the only evidence to provethe nature of the tenancy. If that had been the case, the evidence of the modeof dealing with the property such as we have here, might, perhaps, have beensufficient to raise the presumption of a permanent tenancy. But where, as inthis 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 militateagainst any inference that it was intended to be permanent. For, though thefirst tenant, Sadbu Serang had, before taking the settlement, purchased theland from its former holder under a conveyance (Exhibit B 2) purporting totransfer a permanent interest, in his kabuliyat by which he took the settlementhe not only omitted to make any stipulation for permanent occupation, but madeno mention of his having purchased the land and was content with stating thathe had purchased merely the fixtures and structures thereon. This clearlyindicates that the landlord was unwilling to create any permanent tenancy, andthe tenant agreed to accept a non-permanent lease. The lease therefore wasclearly not intended to be a permanent one at its inception. Can it then beinferred from the acts and conduct of the parties that it was by impliedagreement subsequently converted into a permanent lease We think not. If it isunlikely that the tenant would have spent money in erecting pucca buildings onthe land, and the landlord would have allowed the buildings to remain on theland so long without objection, unless there was such an implied agreement, itis at least as unlikely that the landlord, who had been so cautious as not toallow the insertion of a single word in the kabuliyat which might implypermanency, would without any apparent reason come to such an agreementsubsequently. Moreover there is nothing to show that the buildings were erectedwith the knowledge of the landlord; and the fact of their having been allowedto remain on the land without objection is explained by the circumstances thatthe estate of the landlord has been all along let out in ijara. We may add thatthe fact of the tenure in question having been the subject of several transfershas not much material bearing upon the present question, as there is no disputeabout its transferability so long as the tenancy is not determined, the pointin dispute being whether it is permanent.

15. We have not thought it necessary to discuss in detailthe various cases cited on both sides, most of which have been considered byMr. Justice Rampini in the case of Nabu Mondul v. Cholim Mullich (1898) 25Cal., 896, because the general principle laid down in, or deducible from, allof them is substantially the same, and is stated in terms most favourable tothe tenant in two cases to which we have referred above, namely, Dhunput Singhv. Goman Singh (1881) 10 C.L.R., 25, and Prossunno Coomar Chatterjee v. Jagunnath Bysack I.L.R (1898) 25 Cal., 896 [LQ/CalHC/1898/19] ; and the result of the application ofthat principle in each case must depend upon the facts of that case. Applyingthe principle laid down in those cases to the facts of this case, theconclusion we come to is that the mode in which the property has been dealtwith and the acts and conduct of the parties generally, are not sufficient towarrant the inference, that the tenancy in question was intended to bepermanent at its inception or was converted into a permanent one subsequently.The only case which requires special notice is Dunne v. Nobo Krishna MukerjiI.L.R (1889) 17 Cal., 144. The facts of that case were very different fromthose of the present case. There was nothing to show under what circumstancesand conditions the tenure was created; and there was evidence to show that thetenure had been held at a uniform rent for nearly one hundred years; and inthat state of facts the Court held that a presumption arose that the tenure wasa permanent one.

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

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

18. In the view we have taken upon the second and thirdquestions stated above; it becomes unnecessary to consider the fourth question.If it had been necessary to consider that question, we should have felt somedifficulty in answering it in the affirmative upon the materials placed beforeus, seeing that one of the plaintiffs own documents (Exhibit VI), shows thathis lessor holds certain properties as to what kharij, that is, outside theendowment, and seeing also that the lease in his favour is itself in excess ofthe power of a mutwali of wakf property to grant. (See Amir Alis Mahomedan Law,Vol. I, p. 279). We may add that the rent receipts filed by the defendantdescribe the estate as the taluq of the late Mannujam Begum, and not as wakfproperty, and that the question of wakf not having been properly raised in theCourt below, the defendant had not sufficient opportunity of meeting the point.

19. For the foregoing reasons we think the tenancy in thiscase is not permanent and the landlord is not estopped from denying itspermanent character.

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

21. The defendant claims compensation for the buildingserected on the land. Such claim could not, in the case of a tenant, come withinthe scope of Section 51 of the Transfer of Property Act, even if that Actapplied to this case notwithstanding Section 2, Clause (c), because a tenantcould not possibly believe in good faith that he was absolutely entitled to theland. The provision of the Transfer of Property Act relating to a tenantsright with reference to structures raised on the land held by him, is thatcontained in Clause (h) of Section 108, which only authorizes the tenant toremove structures raised. The same is the extent of his right under the law ofthis country in cases not governed by the Transfer of Property Act, as was heldby 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 defendantto remove the buildings raised by her or her predecessor in interest was notdisputed by the learned Advocate-General, who appeared for the appellant. Butthere is no authority in support of the contention that a tenant in a case likethis is entitled to compensation for buildings erected by him. The two casesrelied upon by the learned Counsel for the defendant, Duttetrayi Rayaji Pai v.Sridhor, Narain Pai I.L.R (1892) 17 Bom., 736, and Yeshiuadabai v. Ram ChandraTakaram I.L.R (1893) 18 Bom., 66, are clearly distinguishable from the present.In the former there were, as Mr. Justice Candy, who delivered the judgment ofthe Court, observes,--special circumstances "the near relationship of theparties, thus residing in close vicinity to each other, their ownership of thesurrounding lands pointing to the presumption that the plaintiff by his conductsanctioned the construction of the building and well and afforded hope andencouragement to the defendant that he would be allowed to remain in peaceablepossession of the same, or at least would not be ejected without a reasonablereturn for the expenditure incurred by him." And in the latter case theland 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 fathers and hisown conduct from recovering the land and premises from the tenant in the mannerhe sought.

22. The defendants claim for compensation in this case istherefore untenable.

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

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Ismail Khan Mahomedvs. Jaigun Bibi (19.01.1900 -CALHC)