Hafiz Muhammad Zayauddin vs Shaikh Dargahan and Others

Harries, C.J.—This is a Letters Patent appeal from a decision of Wort J. in a second appeal reversing a decree of the lower Appellate Court in favour of the plaintiff. The suit out of which this appeal, arises was brought by the plaintiff to recover possession of a small plot of land, 11 acres in extent situate in the village of Shakranwan. According to the plaintiffs, the land had been originally let to the defendants'' predecessors upon the terms that it should be given up to the plaintiff''s predecessors when the latter required it. In short, the plaintiff alleged a tenancy at the will o� the landlord. According to the plaintiff''s case, this tenancy had been determined by notice and accordingly possession was claimed. The defence was that the tenancy was a permanent one, and therefore the plaintiff had no right to eject the tenant. The trial Court held that the tenancy was permanent and dismissed the plaintiff''s claim: but on appeal the lower Appellate Court held that the tenancy was a tenancy-at-will and accordingly decreed the plaintiff''s claim. In second appeal, Wort J. held that the tenancy was a permanent one and accordingly he reversed the decree of the lower Appellate Court and restored the decree of the learned Munsif dismissing the claim in its entirety.

The origin of this tenancy is unknown. The lower Appellate Court has found that the defendants'' predecessors have been in possession of this land for over a hundred years and had built upon it a substantial structure consisting of mud walls and tiled roofs. This structure is found to be very old and must have been in existence for very many years. It is also found that the possession of this land together with the structure thereon has been held by the de-fondants'' family generation after generation without let or hindrance. No rent has ever been paid to the plaintiff and his predecessors for the Baid land and the latter has, until the present proceedings, made no attempt to eject the defendants or their predecessors. From these facts "Wort J. held that the inference to be drawn was that the tenancy was a permanent one. It has been argued before us that these facts do not support an inference of a permanent tenancy. It is clear that where a tenant alleges that his interest is a permanent one the lonus lies upon him to establish such an interest. This is clearly laid down in Kamal Kumar Datta and Another Vs. Nandalal Dubey, Rankin C. J. observed:

When a person claims to hold land as a tenant under a landlord it is for him to prove the existence, the nature and the extent of the interest which the owner of the full right has granted to him.

In the present case it is common ground that the defendants are tenants under the plaintiff, and it is for them to show the nature and the extent of the interest which they hold. This is conceded by Mr. Baldeva Sabay, who appeared for the defendants. As I have stated, the origin of this tenancy is unknown and the nature and the extent of the interest must be inferred from the facts which have been proyed in this case. The inference to be drawn from the proved facts is not a question of fact but, on the contrary, is a question of law. This has been laid down by their Lordships of the Privy Council in AIR 1927 102 (Privy Council) Lord Blanesburgh observed:

They are -well aware moreover that questions of law and of fact are often difficult to disentangle. It is clear however that the proper effect of a proved fact is a question of law, and the question whether a tenancy is permanent or precarious seems to them, in a case like the present, to he a, legal inference from facts and not itself a question of fact. The High Court has described the question here as a mixed question of law and fact, a phrase not unhappy if it catties with it the warning that in so far as it depends upon fact, the finding of the Court on first appeal must be accepted. On these lines, which the High Court appears strictly to have'' observed, the appeal to that Court was competent, and it was in their Lordships'' judgment open to the learned Judges there to entertain it as they did.

In that case the High Court had held in second''; appeal that an inference as to the nature of a tenancy from proved faots was a question, of law, and their view was up held by the Judicial Committee of the Privy Council. The case in AIR 1927 102 (Privy Council) was discussed by a Bench of the Calcutta High Court in Kamal Kumar Datta and Another Vs. Nandalal Dubey, where it was held that whether a long standing tenancy of unknown origin is permanent or not is an inference of law to be deduced from the facts proved in each case, it being on the tenant to prove the facts leading to such inference. The Bench further held that neither possession for generations at a uniform rent nor construction of permanent structure, in itself, can be taken as conclusive proof of permanent right.

It has been urged strenuously before us by Sir Manmatha Nath Mukerji that the facts of the present case are precisely similar to the facts in Kamal Kumar Datta and Another Vs. Nandalal Dubey, , to which I have referred, and it is contended that we should follow that case and hold that the facts proved in the case before us do not warrant an inference of permanent right. In Kamal Kumar Datta and Another Vs. Nandalal Dubey, , Rankin C.J. observed that each case must depend upon its particular facts, and in my view there is a clear distinction between the case before this Court and the case in Kamal Kumar Datta and Another Vs. Nandalal Dubey, . In the latter case the land in question had been used for residential purposes for 60 years at least and the tenancy was nearly a hundred years old. The tenant and his family had held the land for generations at a uniform rate of rent which had never been enhanced. The buildings, however on the land are described as mud huts, whereas'' in the present case the buildings, though of kachha construction, are very substantial and can in no way be described as mud huts. The learned Subordinate Judge accepted the report of the Commissioner who had inspected the constructions and that report describes the building as consisting of 12 rooms and a shop with three verandahs and three courtyards. The roof of this building was tiled, and there were various signs in the building showing that it had been repaired from time to time with bricks. It is true that the building can be described as a kachha one, but the description given by the Commissioner makes it clear that it was an extremely substantial kachha construction. There is therefore one very marked difference between the present case and the case in Kamal Kumar Datta and Another Vs. Nandalal Dubey, . The question therefore arises whether the same inference must be drawn from the proved facts in the present case as was drawn from the proved facts in the Calcutta case.

In my view it is impossible to draw the inference that the tenancy in the present case is a tenancy-at-will or a tenancy determinable at short notice. It appears to me that the buildings which have been constructed on this plot and maintained by generations of this family are such that no one would have built if his tenancy was a precarious one. It must be remembered that the defendants'' family were weavers and the family continued to ply that trade until today. They were certainly in the past humble folk who could not be expected to erect pakka constructions costing a considerable amount of money. The present buildings must have meant a very considerable outlay for people of this class and from the nature of the building I am bound to hold that the tenants built it because they knew that their interest in the land was secured and permanent. Had their interest been precarious, it is inconceivable that a building of this kind would have been erected by them. The facts, as proved, show that the landlords never at any time objected to the construction of this very substantial building, and though it is common knowledge that the value of land'' in villages has risen considerably they never made any attempt to obtain any rent from these tenants.

It has been argued that the fact that no rent was paid for this land strongly suggests that the tenancy was a tenancy-at-will. The fact that no rent is payable is entirely consistent with a tenancy-at-will; but a tenancy-at-will cannot be inferred when it is known that the tenant who was paying no rent constructed such a substantial; building as that which stands on this land. Failure to demand rent may be due to the inactivity or kindliness of the landlord; but) there is nothing in this case to suggest that the landlord was either inactive or kindly disposed towards the defendants. The learned Munsif found as a fact that the plaintiff'' and his father had been extremely vigilant and had dispossessed the tenants of their kasht land. The lower Appellate. Court makes no reference to this finding, and therefore, I do not base my deoision upon it. However, it is clear that there is nothing in the findings of the lower Appellate Court to suggest that failure to demand rent was due to anything other than the fact that no rent was payable for this land. The fact that land with a house upon it has been held for many years at a uniform or nominal rent has frequently been relied upon to support an inference of a permanent tenancy of land.

In my view, the fact that for a hundred years no rent has been demanded or paid is equally good ground for inferring a permanent tenancy, particularly when it is found that the land together with the buildings upon it has devolved from generation to generation of the same family. It has been strenuously argued that an inference of a permanent tenancy should not be drawn even where substantial buildings have been erected unless such buildings are: of pakka construction. Had the present buildings been pakka, the case would have been beyond all argument; but in my view the true test is not whether the buildings are pakka but whether the buildings are of a substantial nature. In Kamal Kumar Datta and Another Vs. Nandalal Dubey, the question whether the existence of pakka buildings is necessary to support an inference of permanency was discussed by Rankin C.J. At page 745 he stated:

In Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, , Chakravarti J. as a result of his analysis of previous decisions, considered that the absence of permanent pucca buildings on the land would ordinarily be fatal to a claim for permanency. What I think ha meant by this statement was that unless permanent pucca buildings existed on the land the tenant would not, as a rule, be able to point to anything more than matters which can be explained by the reluctance of a landlord to eject a reasonable tenant, i.e. to point to any other element showing that the tenant''s long occupation at a uniform rate of rent is unequivocally referable to a permanent right. In my opinion, it cannot be laid down that the existence of permanent structures is the only unequivocal or unambiguous fact for the purpose of an inference in favour of the tenant.

The necessity or otherwise of the existence of pakka structures to support an inference of permanency was also considered by Iqbal Ahmad J. in Sitara Shahjahan Begam and Another Vs. Munna and Another, . According to the learned Judge,

a pakka building is a building more permanent than a kachha one, but a mere difference in the degree of permanence could not alter the nature of the tenancy. The fact that a kachha house had been in existence for a period of more than 60 years and had passed by succession to the heirs of the lessee who originally built the house, might be enough to lead to the presumption that the lease was a permanent one.

In Pramatha Nath Das Bairagi Vs. Champa Dasi, , a Bench inferred that a tenancy was a permanent one though there was no evidence that there had ever been any pakka building or structure erected on the land. As I have stated earlier, each case must depend upon its particular facts. Normally the existence of unsubstantial kachha structures would not lead unequivocally to an inference of permanency; but where it is found that the structures, though kachha, are of the most substantial nature and are such as no poor man would be likely to build upon land unless his interest in the land was secured, then an inference of permanency is the only one which can be drawn. The inference of permanency can only be drawn where the facts point irresistibly to such a conclusion. Where the facts are equally consistent with permanency or a tenancy-at-will, then permanency cannot be inferred; but where the facts are inconsistent with a tenancy-at-will and consistent only with a permanent tenancy, the latter is the only inference which can be drawn and the permanency of the tenancy must legally be inferred. In my judgment the facts of the present case unequivocally and irresistibly point to a tenancy of a permanent nature, and that being so, I hold that the decision of Wort J. is right and must be affirmed. I would thereto dismiss this appeal with costs.

Mohamad Noor J.

I agree.