Authored By : Asutosh Mookerjee, Ernest Edward Fletcher

Asutosh Mookerjee, C.J.

1. The controversy in this case relates to the nature of thedisputed tenancy. The plaintiffs-appellants maintained that the tenancy was ofa temporary nature and was non-transferable. The defendants contended that thetenancy was of a permanent character and was transferable. The Courts belowhave found that the origin of the tenancy was unknown but that it had been inexistence for at least half a century, that the land was let out forresidential purposes, that it had been held at a uniform rent, and that thetenant had actually built a dwelling house thereon and lived there from theinception of the tenancy till the sale to the defendants. From thesecircumstances, the District Judge drew the inference that the tenancy waspermanent and transferable. His conclusion is supported by a long series ofdecisions of recognised authority which are reviewed in the case of MohoramSheikh Chaprasi v. Telamuddin Khan 13 Ind. Cas. 606 [LQ/CalHC/1911/350] : 15 C.L.J. 220 : 16 C.W.N.567 and are in harmony with the recent judgment of the Judicial Committee inSurendra Nath Roy v. Dwarka Nath 50 Ind. Cas. 856 : 24 C.W.N. 1 : (1919) M.W.N.811 (P.C.). On behalf of the plaintiffs it has been argued, however, that thetenancy should not have been held to be permanent and transferable; first,because the dwelling house was not brick built, and secondly, because thetenancy is not shown to be heritable. In our opinion, there is no force ineither of these contentions. In the first place, it is plain that the dwellinghouse need not be brick-built in order to indicate that the tenancy wasintended in its inception to be of a permanent character. In the second place,there has been no occasion for inheritance, because the original tenant haslived for over half a century. No doubt, if the original tenant had died andthe landlord had thereupon resumed possession, that might have been evidence toshow that the tenancy was not of a permanent character. Reference has been madeto the decisions in Baroda Prasad v. Prasanna Kumar Das 14 Ind. Cas. 152 [LQ/CalHC/1912/79] : 16C.W.N. 564 and Ambica Prasad Singh v. Baldeo Lal 36 Ind. Cas. 126 [LQ/PatHC/1916/95] : 20 C.W.N.1113 : 1 P.L.J. 253 : 2 R.L.W. 417. But neither of these cases purports to laydown any inflexible rule of law which militates against the view adapted by theDistrict Judge and confirmed on appeal to this Court.

2. The result is that the decree made by Mr. Justice ShamsulHuda is confirmed and this appeal dismissed with costs.

Ernest Edward Fletcher, J.

3. I agree.

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Shoroshi Charan Ghose and Ors. vs. Bhagloo Sah and Ors.(03.05.1920 - CALHC)