Anant Teli and Others vs Ramdhan Puri and Others

Agarwala, J.—The plaintiff-respondent is the owner of the land on which Gobindpur Bazar is built. The defendant-appellants are traders who have their shops and houses in the bazar. The plaintiff sued to eject them on the ground that they were tenants, at-will, alleging that they were inducted on to the land in 1896. The defence of the tenants was that their tenancies had existed for over 100 years, that the sites of which they were in possession were granted for the purpose of building shops and residences and that they have built substancial structures on those sites.

The Court of appeal below has come to the following findings: (1) that the tenancies were created prior to the passing of the Transfer of Property Act of 1882; (2) that the original settlement was for business, and residential purposes; (3) that the buildings put up by the tenants were put up with the knowledge of the landlord (it may be mentioned that 22 of these buildings are double storied); (4) that transfers of the sites which have taken place have not always been recognized by the landlord; (5) that the rent has not been uniform, and (6) that the evidence did not establish that the holdings were heritable although in some cases there had been succession which had been recognized by the landlord.

From these findings of fact, the Court of Appeal below inferred that the tenancies were not permanent. The question whether on the facts found a particular tenancy is a permanent one or not is a mixed question of fact and law.

The fact that substantial structures have been erected is not conclusive proof of a permanent right in land. The onus of proving permanency lies on the tenant, but where the origin of the tenancy is unknown, it is open to the tenant to show that the correct inference is that the right granted and enjoyed by him is a permanent one. As was observed by Rankin, C.J. in Kamal Kumar Datta and Another Vs. Nandalal Dubey, :

In considering these cases it is necessary to bear in mind certain general considerations of fact applicable to Indian conditions prior to the Transfer of Property Act of 1882, Where a tenant has succeeded in proving that the holding has consistently passed by succession and that transfers have been made as a right and that the rent has remained uniform, it would be difficult to resist the conclusion that the tenancy is a permanent'' one.

But where these elements are missing, the mere fact that the landlord has not objected to a tenant''s heir continuing the tenancy or to some transfers that have been made, is not necessarily an indication that he recognized the permanency of the tenant''s rights. The learned District Judge who heard the appeal in the Court below observed:

We have to judge the purpose of the settlement from the manner in which the holding is actually being used, and from surrounding circumstances. As to this, the evidence clearly shows that the holdings are being used both for residential and for business purposes. This is a usual thing in most Indian bazars. The ordinary village shopkeeper does not keep separate buildings for residential and for business purposes. Nor is there any evidence to the effect that this happened in Gobindpur. The idea of the maliks when they established the market, would be to keep the shopkeepers in the village, so that the bazar might become established. They would hardly do this, if they insisted that the shopkeepers must not use their holdings for residential purposes. From the circumstances therefore we may reasonably infer that the settlement was for residential and business purposes.

This settlement of the object of the owner of the land is to my mind an extremely important clue to determine what the parties intended by the settlement that was made. If, on the one hand, the owner of the land hoped to induce traders to establish themselves in the bazar by permitting them to erect buildings which would serve for their business and residential purposes, it may reasonably be inferred on the other, hand that persons who proposed to establish businesses in this bazar would put up substantial buildings only if they contemplated staying there permanently. The fact that the buildings put up were not in the majority of cases pucca buildings, is not a decisive factor.

In India, where many buildings are built less substantially but with no idea that they should be merely temporary erections, the correct test appears to be not the materials used but the substantiality of the structure. In the present case, as I have already stated above, a large number of the buildings put up are double-storied. Another very important clue to the intention of the parties in the present case is the evidence of Kedarnath who was a landlord of the village from 1896 to 1920. He deposed on behalf of the tenants and stated that he had always looked upon the tenants as permanent.

The learned District Judge said that he regarded this witness as most reliable. The evidence of this witness taken in conjunction with the known object of the landlord in inducing the tenants to take up building sites in the bazar clearly indicates, I think, that permanent tenancies were in contemplation when the tenancies originated.

I would therefore set aside the decision of the learned District Judge and restore the decree of the first Court. The appellants are entitled to their costs.