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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 931 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. 933 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.