Abdur Salam Sahib and Another vs M. Kandaswami Chettiar

Walter Salis Schwabe, K.C., C.J.—I am very loath to disagree with the Judge who heard the evidence on questions of fact but in this case I

do not think that the view I am about to express really differs at all on the question of fact because I take the facts as found by the learned Judge.

On these facts, whether the proper inference is that the tenancy in question is a permanent or temporary one is a question of law and not a question

of fact.

The facts of this case as found are that a superstructure described as a pucca house was erected on those premises at least fifty years ago -

according to the evidence the period is nearly 100 years, from that date forwards there has always been fixed and paid a monthly ground rent of

14 annas. The tenant from time to time has disposed of his interest. The last tenant sold his interest to the present plaintiff for Rs. 350. During that

period the value of the land in Madras has arisen and we are told that the present proper ground value of this land is not H annas but Rs. 2.

Now the question under those circumstances, there being no direct evidence as to what the original tenancy was, is ""In the proper inference that

it is a permanent tenancy or a tenancy of some shorter period."" It is put as monthly because the rent was payable monthly. On this matter we are

not without authority. A similar case came before their Lordships of the Privy Council in Afzal-un-nissa v. Abdul Karim 36 M.L.J. 580 (P.C.). In

that case which was in reference to some land in a suburb of Delhi covered by buildings, the facts were that from 1859 onwards a uniform rent had

been fixed and paid and substantial buildings had been erected without the landlord''s objection and they had been dealt with by assignment or

mortgage. So far that case is very like the present. There was one additional fact in that case, namely that the landlords had in some receipts

applied the term ''permanent'' to the rent. I do not think that that fact alone would suffice to differentiate this case. But, however that might be, in

that case their Lordships of the Privy Council quoted with approval the case of Caspersz v. Kader Nath Sarbadhikari ILR (1901) Cal. 738 and

the part that they quoted with approval is this: ""Although the origin of a tenancy may not be known, yet if there is proved the fact of long

possession of the tenure, by the tenants and their ancestors, the fact of the landlord having permitted them to build a pucca house upon it, the fact

of the house having been there for a very considerable time, of its having been added to by successive tenants, and of the tenure having from time

to time been transferred by succession and purchase, in which the landlord acquiesced or of which he had knowledge, a Court is justified in

presuming that the tenure is of a permanent nature."" Every word in that applies to this case and that has the approval of their Lordships of the Privy

Council and it seems to me that the only proper inference that could be drawn on the facts of this case is that the tenancy was a permanent

tenancy.

It is suggested in argument that there is something peculiar about Madras in this matter and that in the city of Madras for some reason permanent

tenancy is unknown and can never be. I see no reason for accepting that statement for one asks oneself ''why should there be any difference in this

matter between Madras-and Delhi and Calcutta?'' Human nature is much the same in different provinces. People do not build valuable houses on

other people''s land with the knowledge that they may be turned lout at a month''s notice and with the knowledge that they may only remove their

bricks and mortar. Landlords do not go on accepting the same rent year after year when the value of the land is increasing. I see no reason at all to

distinguish in this matter between Madras and other towns in this country, when we have got the facts from which the proper inference to be drawn

is that there is a permanent tenancy. Those facts in my judgment result in that inference whether it is in Madras or elsewhere. On those grounds in

my judgment this judgment is wrong and must be reversed with costs here and in the Court below; and the declaration prayed for in the plaint must

be granted.

Wallace, J.

I entirely agree and I have nothing to add.