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PETITIONER:

BEJOY GOPAL MUKHERJI

Vs.

RESPONDENT:

PRATUL CHANDRA GHOSE.

DATE OF JUDGMENT:

28/01/1953

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

MAHAJAN, MEHR CHAND

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 153 1953 SCR 930

CITATOR INFO :

R 1966 SC 629 (9)

R 1972 SC 410 (17)

R 1988 SC1531 (63)

ACT:

Landlord and tenant -Permanent tenancy--Evidence-lnference

from possession from generation to generation, transfers,

erection of stractures and other circumstances -Mere

increase of, rent, effect of.

HEADNOTE:

Permanency of tenure does not necessarily imply both fixity

of rent and fixity of occupation and the fact of enhancement

of rent does not necessarily militate against the tenancy

being a permanent one. When, therefore, in a previous suit

the only question was whether the jama could be increased

and the jama was increased:

Held, that this decision did not operate as res judicata on

the question of permanency of the tenure in a subsequent

suit for ejectment.

Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogendra

Krishna Banerji v. Subashini Dassi (1940) 45 C.W.N. 590,

Probhas Chandra Mallick v. Debendra Nath Das (1939) 43

C.W.N.828, relied on.

Mere possession for generations at a uniform rent, or

construction of permanent structures by itself may not be

conclusive proof of a permanent right but the cumulative

affect of such facts coupled with other facts may lead to

the inference of a permanent

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tenancy Where it was not known how the earliest known tenant

acquired the tenancy or what the nature of the tenancy was,

the tenancy bad passed from one person to another by

inheritance or by will or by transfer inter vivos, in the

deeds of transfer the transferee was given the right to

enjoy from generation to generation for ever, pucka

structures and tanks had been constructed, and though there

was an enhancement of rent in 1860, the rent bad not been

increased since then:

Held, that all these circumstances put together irresistibly

led to the conclusion of a permanency of the tenure.

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Probhas Chandra Mallik v. Debendra Nath Das (1939) 43 O.W.N.

828 referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 93 of 1952.

Appeal from the Judgment and Decree dated the 20th January,

1950, of the High Court of Judicature at .Calcutta (Das and

Gupta JJ.) in Appeal from Original Decree No. 141 of 1940

arising out of Judgment and Decree dated the 8th May, 1940,

of the Court of the Subordinate Judge, 1st Court of Zillah

If owrah in Title Suit No. 38 of 1948.

N.C. Chatterjee (A. N. Sinha, with him) for the appellant.

Panchanan Ghosh (Syama Charan Mitter and A.K. Dutt, with

him) for the respondent.

1953. January 28. The Judgment of the Court was delivered

by

DAS J. - This is an appeal by the plaintiff' in an ejectment

suit. His case was that defendant No. I Pratul Chandra

Ghose was a Ticca tenant of premises Nos. 2 and 3, Watkin's

Lane, Howrah, comprising an area of I Bigha 19 Cottahs of

land on a rent of Rs. 78 per annum under the landlords Kumar

Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, proform a

defendants Nos. 2 and 3, that the plaintiff took a Mourashi

Mokarari lease from these landlords on the 23rd September,

1937, and thereby became the immediate landlord of the said

defendant and that the teancy was determined by a notice to

quit dated the 7th October, 1937. The trial Court, amongst

other

932

things, found as a fact that the tenancy of the defendant

Pratul Chandra Ghose was permanent, heritable and

transferable and was not liable to be determined by notice.

The plaintiff preferred an appeal to the High Court but the

High Court dismissed that appeal holding, amongst other

things, that the finding of the trial Court as to the nature

of the tenancy was correct. The plaintiff has now come up

on appeal before us after getting a certificate from the

High Court that it is a fit case for appeal to this Court.

Relying on the decision of the Privy Council in Dhanna Mal

v. Moti Sagar(1) Shri N. C. Chatterjee appearing on behalf

of the plaintiff-appellant contends that the present appeal

is not concluded by the concurrent finding of the Courts

below that the tenancy was permanent because that question

was one of the proper inference in law to be deduced from

the facts as found by the Courts below. The learned counsel

has, therefore, taken us through. the evidence mostly

documentary, as to the nature of the tenancy. The earliest

document referred to is Exhibit P/11, being a conveyance

executed in 1226 B.S.1819-1820 by Sheikh Manik and another

in favour of Mrs. Cynthia Mills Junior. How the vendors had

acquired their title is not known. By that deed of sale the

vendors, for a money consideration,, conveyed their interest

in the lands described as Jamai lands to the purchaser who,

on payment of rent of Rs. 480 per kist, was to "go on

possessing and enjoying the same with great felicity down to

your sons and grandsons etc., in succession by constructing

houses and structures." Mrs. Cynthia Mills died some time

before October, 1855, and her son John Henry Mills who had

succeeded her sold the premises to one Mrs. Sabina Love by a

conveyance Exhibit P/10 dated the 29th October, 1855. It

appears from that deed that by that time a tank with masonry

steps had been excavated on the lands which were described

as a plot of rentpaying garden land. The consideration for

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the sale

(1) (1927) L. R. 54 1. A. 178.

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was Rs. 1,000. The following provisions of the sale deed

are of importance:--

"From this date being entitled to make gift and sale of the

said property, you do bring into your own possession the

said lands etc., and on paying annually to the Maliks

Zemindars Rs. 480 (Rupees-four and annas eight) in Siccas

coins as rent and on getting your name mutated in place of

mine and obtaining Dakhilas in your own name, you do go on

possessing and enjoying the same with great felicity down to

your sons and grandsons etc., in succession."

By a conveyance Exhibit P/9, dated the 10th October, 1856,

Mrs. Sabina Love transferred the premises to one Francis

Horatio Dobson. The premises were there described as

"garden land held under Mourashi Patta" which Patta has

since been held to be a spurious document in a subsequent

litigation. It appears from this document that Mrs. Cynthia

Mills had excavated a tank and constructed a pucca ghat and

laid out a garden and that on her death her son and heir

John Henry Mills came into possession of the land and that

he had sold the premises to Mrs. Sabina Love and that after

her purchase Mrs. Sabina Love had enclosed the said lands

and had manufactured bricks with the earth of the land she

purchased. The consideration for this conveyance was Rs.

1,200. It provided as follows :----

" From to-day you become the owner of the said lands with

powers of making gift and sale. On keeping the said lands

together with the tank with all interests therein in your

possession and under your control, and on paying according

to the previous Patta the Mokarari annual rent of Rs. 480 in

Sicca coins into the Sherista of the Zemindar and on having

the previous name struck off from the landlord's Sherista

and getting your own name recorded therein, you do go on

enjoying and possessing the same with great felicity down to

your sons, grandsons etc., in succession . "

On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859, a

notice under sections 9 and 10 of Regulation V of 1812 was

issued by the then Zemindars Rani

934

Lalanmoni and Raja Purna Chandra Roy. It was ,addressed to

" Mrs. Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of

Salkhia. " It rail as follows: -

" This is to inform you that you are in. possession of I

Bigha 19 Cottas of lands of different kinds as per the

boundaries given below as recorded in the Mal Department in

the said village for which according to your own statement

you are paying a yearly rental of Rs. 4126. But you have

taken no settlement in respect thereof from our estate

(sarkar). Now on fixing the annual Jama of the said lands

according to the prevailing rate as per Jamabandi at Rs.

137-8-0 a year, fifteen days' notice is given to you under

the provisions of sections 9 and 10 of Regulation V of 1812

and you are hereby informed that within the said period you

should appear before, our Zamindary Cutchery and accept a

Pottah after submitting a Kabuliyat according to the

practice in respect of the land and Jama. In default, after

the expiry of the said period action will be taken according

to law, and thereafter no plea shall be entertained."

The requisition not having been complied with, the landlords

evidently filed a suit being Suit No. 590 of 1859. The

pleadings in this suit are not on the record. On 21st

September, 1860, the Principal Sudder Amin delivered his

judgment, Exhibit 24. It appears from that judgment that

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the following two issues had been framed:-

" 1. Whether the plaintiffs have served notice on the other

party for assessment of Jama ?

2. Whether a Jama can be assessed in respect of the

disputed lands; if so at what rate?"

The Principal Sudder Amin overruling the objection of the

defendants held that the landlords had full power to assess

the rent and accordingly he fixed the rent at Rs. 2 per

Cotta which worked out at Rs. 78 in respect of the entire

land. There was an appeal from that decision which,

however, was dismissed by the judgment Exhibit Z (2)

delivered on the 18th March, 1862 . The Mourashi Patta

relied upon was rejected as

935

it was not registered and appeared, on examination, to have

been newly written and filed. Thereafter the landlord filed

a suit for rent of the disputed lands# against Dobson and

Exhibits Z and Z (1) are the certified copies of the

judgment and order - passed thereon. On the 29th May, 1866,

Dobson executed two mortgages (Exhibits P/6 and P/7) in

favour of De Rozario and John Dominic Freitas for Rs. 4,000

and Rs, 2,000 respectively. The two re-conveyances dated

29th February, 1874, and 12th March, 1874, are also on the

record. On 6th March, 1874, Dobson sold the premises to

Henry Charles Mann by a deed which is Exhibit P/5. The

consideration for the sale was Rs. 9,500. It appears from

this deed that by that time there were two brick-built

dwelling houses on the property which came to be numbered as

Nos. 2 and 3, Watkin's Lane. On 11th September, 1883, Henry

Charles Mann sold the premises to George Jones for Rs.

10,000: vide Exhibit P/4. In both those sale deeds the

transferee is granted a heritable right forever. In the

assessment books of the Howrah Municipality (Exhibits 22

series) the interest of George Jones is described as

Mourashi. In the landlord's Sherista the nature of the

tenancy is not stated and Dobson continues to be the

recorded tenant (Exhibit D series). There was, however, no

column. in the rent receipts to indicate the status of the

tenant. It appears that on the death of George Jones the

estate came into the hands of the Administrator-General of

Bengal representing the estate of George Jones. In the rent

receipts of Dighapatia Raj the rent is said to be "received

from Jones--Administrator-General of Bengal." In May, 1931,

the plaintiff and the Administrator-General of Bengal

entered into an agreement for sale of premises No. 2,

Watkin's Lane, being a portion of the premises in question,

for a sum of Rs. 10,001 and Rs. 1,001 was paid by the

plaintiff as and by way of earnest money. The landlords

having declined to subdivide the ground rent between the two

portions of the premises, namely, Nos. 2 and 3, Watkin's

Lane, and a portion of the Premises No. 2, Watkin's Lane,

having fallen down the

936

agreement for sale appears to have fallen through. On the

4th June, 1932, the plaintiff suggested that a lease for 20

years should be granted which was refused by the

Administrator-General, Bengal. Then there was some

negotiation between the plaintiff and the Administrator-

General of Bengal for the sale of both the premises, Nos. 2

and 3, Watkin's Lane, to the plaintiff for a sum of Rs.

12,500. The plaintiff on 9th April, 1933, sent a draft deed

of sale (Exhibit 15) for the approval of the Administrator-

General of Bengal describing the premises as a Mokarari

Mourashi homestead. On 21st April, 1933, Dighapatia Raj

Estate wrote to the Administrator-General. of Bengal saying

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that the tenancy was a Ticca one. On 6th June, 1933, the

Administrator-General of Bengal declined to approve the

draft as drawn. After some further proposal by the

plaintiff for a long lease he declined to purchase the

property on the ground that the Administrator-General of

Bengal had not a good marketable title. Nothing having come

out of the negotiations between the plaintiff and the

Administrator-General of Bengal the latter in September,

1936, invited offers for sale of the lands (Exhibit B). The

defendant No. I made the highest offer of Rs. 12,251. and

this was accepted by the Administrator-General in preference

to the offer made by the plaintiff for Rs. 11,251. The

Administrator-General accordingly executed a conveyance in

favour of the defendant Pratul Chandra Ghose (Exhibit P. X)

who thereupon became the tenant of the premises. Having

failed to obtain title to the premises from the

Administrator-General of Bengal the plaintiff approached the

landlords and on 22nd September, 1937, obtained a Mokarari

Mourashi Patta in respect of the disputed land on payment of

a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only.

The defendant Pratul Chandra Ghose filed rent suits against

the plaintiff in respect of the underlease held by the

latter under the Administrator-General of Bengal and

obtained rent decrees. The plaintiff, however, on the

strength of his new title derived from the superior

landlords under the Mourashi Patta served

937

notice on the defendant Pratul Chandra Ghose on the 7th

October, 1937, requiring him to vacate the premises on the

last day of the month of Chaitra 1944 B. S. The defendant

Pratul Chandra Ghose, not having vacated the premises, the

plaintiff filed the suit out of which the present appeal has

arisen.

Shri N. C. Chatterjee contends that in view of the decision

in the suit of 1859 it was not open to the defendant Pratul

Chandra Ghose to contend that his tenancy was a heritable

permanent tenancy. This point was neither pleaded nor

raised in the trial Court but was put forward for the first

time before the High Court. The pleadings of the 1859 suit

are not on the record but the substance of' the written

statement appears from the judgment Exhibit 24 passed in

that case. The issues framed in that case have already been

set out. There was no issue regarding the character of the

tenancy, namely, whether it was permanent and heritable or

otherwise. The only question there was whether rent could

be assessed tinder the Regulation. There is nothing in that

Regulation suggesting that rent could be assessed only if

the tenancy was a ticca tenancy or that rent could not be

assessed if the tenancy was a permanent one. The question

of permanency of the tenancy was not, therefore, directly or

substantially in issue. We find ourselves in agreement with

the High Court that the permanency of tenure does not

necessarily imply both fixity of rent and fixity of

occupation. The fact of enhancement of rent in 1859 may be

a circumstance to be taken into consideration but it does

not necessarily militate against the tenancy being a

permanent one, as held by the Privy Council in the case of

an agricultural tenancy in Shankarrao v. Sambhu Wallad(l).

The principle of that decision was applied also to non-

agricultural tenancies in Jogendra Krishna Banerji v. Sm.

Subashini Dassi(2). In Probhas Chandra Mallik v. Debendra

Nath Das(3) also the same view was taken. We, therefore,

hold that the plea of res judicata cannot be sustained.

(1) (1940) 45 C.W.N. 57.

(2) (1940) C.W.N. 590. (3) (1939) 43 C.W.N, 828,

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121

938

Shri N. C. Chatterjee then contends, relying on the

decisions in Rasmoy Purkatt v. Srinath Moyra (1), Digbijoy

Roy v. Shaikh Aya Rahman (2), Satyendra Nath v. Charu Sankar

(3 ) and Kamal Kumar Datta v. Nanda Lal Dule ( 4 ) that the

tenancy in this case cannot be regarded as a permanent one.

The decisions in those cases have to be read in the light of

the facts of those particular cases. The mere fact of rent

having been received from a certain person may not, as held

in Rasamoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy

v. Shaikh Aya Rahman (supra), amount to a recognition of

that person as a tenant. Mere possession for generations at

a uniform rent or construction of permanent structure by

itself may not be conclusive proof of a permanent right as

held in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but the

cumulative effect of such fact coupled with several other

facts may lead to the inference of a permanent tenancy as

indicated even in the case of Satyendra Nath v. Charu Sankar

(supra) on which Shri N. C. Chatterjee relies. What, then,

are the salient facts before us ? It is not known how the

earliest known tenant Shaik Manik acquired the tenancy or

what the nature of that tenancy was. The tenancy has passed

from one person to another by inheritance or by will or by

transfers inter vivos. In the deeds of transfer the

transferee has been given the right to enjoy the property

from generation to generation for ever. A tank has been

excavated and a pucca ghat built on the land. Bricks have

been manufactured with the earth taken from the land and the

premises have been enclosed within pucca walls. Pucca

buildings have been erected and mortgages have been executed

for substantial amounts. Although there was an enhancement

of rent in 1860 that rent has continued to be paid ever

since then. Portion of the premises, namely, No. 2,

Watkin's Lane, has been used as a factory by the plaintiffs

and on the other portion, namely, No. 3, Watkin's Lane,

residential buildings were -erected which indicate that the

lease was for residential purposes. As already

(1) 7 C.W.N. 132

(2) 17 C.W.N. 156.

(3) 40 C.W.N. 854.

(4) (1929) I.L.R. 56 Cal. 738.

939

indicated there have been many transfers and devolutions and

the landlords have accepted rent' from the transferees or

the successors. The names of Mrs. Cynthia Mills and Dobson

and, Jones were mutated in the Zamindar's Sherista.

Although in the rent receipts Dobson continued to be shown

as the recorded tenant, eventually Jones's name appears on

the rent receipts as tenant. In spite of the increase in

land value and the letting value the landlords through whom

the plaintiff derives his title did not at any time make may

attempt to eject the tenant or to get any further

enhancement of rent since 1860. All these circumstances put

together are explicable only on the hypothesis of permanency

of the tenure and they irresistibly lead to the conclusion,

as held by the lower Courts, that the tenancy in question

was heritable and a permanent one. The decision of

Mukherjea, J., in the case of Probhas Chandra Mallick v.

Debendra Nath Das (supra) is definitely in point. In this

view of the matter we hold that the Courts below were right

in dismissing the plaintiff's claim for ejectment.'

In the result this appeal must fail and we dismiss it with

costs.

Appeal dismissed.

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Agent for the appellant: P. K. Ghosh.

Agent for the respondent: Sukumar Ghose.