Krishna Kishore Neogi vs Mir Mahomed Ali

Banerjee, J.—This appeal arises out of a suit for ejectment upon notice to quit. The Plaintiff in his plaint alleged that the Defendant was a tenant-at-will and that he had been served with a notice to quit. The defence was that no notice to quit had been served, that the Defendant was not a tenant-at-will, that he held the land under a mourasi pattah which he had obtained about 50 years ago but which had been destroyed by fire, that the Defendant had built a two-storied house and a pucca musjid on the land, and that the tenure was one from which the Plaintiff was not entitled to eject him. The First Court found for the Plaintiff and gave him a decree. On appeal the lower Appellate Court has reversed that decree, holding that the Plaintiff by allowing the Defendant to erect a pucca musjid on the land was precluded from enforcing his right to eject the Defendant and holding further that the long possession of the Defendant coupled with the fact that permanent structures had been built by the Defendant upon the land demised, warrant the presumption that the tenure was of a permanent nature.

In second appeal it is contended on behalf of the Plaintiff: (1) that the lower Appellate Court is wrong in holding that the mere fact of the Plaintiff not having objected to the raising of a pucca building by the Defendant was sufficient to disentitle him to maintain this suit; and (2) that the facts found by the lower Appellate Court are not sufficient to warrant the presumption of a permanent tenure.

In connection with the first contention it is urged that the lower Appellate Court is wrong in law in not taking into consideration the fact that at, and subsequent to, the time of the building of the pucca musjid the land had been let out in ijara, by the Plaintiff; and in connection with the second contention it is urged that the Court of Appeal below is wrong in taking into consideration the fact of the existence of another pucca, building on the disputed land besides the musjid without displacing the Munsif''s finding as to the circumstances under which that building was raised or alluding at all to the circumstances under which it was raised.

Upon the first point the fact found by the lower Appellate Court is that there is a pucca musjid on the disputed land, that it was built more than twenty years ago, and that it was built with the knowledge of the Plaintiff; and the conclusion of law based upon that finding of fact is that the Plaintiff is precluded by his conduct from turning the tenant out of possession.

The contention on behalf of the Appellant is that the conclusion of law does not follow from the fact found.

The authorities relied upon by the lower Appellate Court are the cases of Beni Madhub Banerjee v. Joy Kissen Mookerjee 12 W. R. 495 (1869), and Zeshwada Bai v. Ram Chandra Takaram I. L. R. 18 Bom. 66 (1891).

The learned vakil for the Appellant contends that the authorities cited are not sufficient to support the judgment of the lower Appellate Court, and that the case of Ramsden v. Dyson L. R. 1 H. L. 129(1866) is clear authority to the contrary. If the two Indian cases, one of which is a decision of this Court, really support the view taken by the lower Appellate Court, then even if it be opposed to the decision in the English case relied upon by the learned vakil for the Appellant, we would be bound to affirm that view. But we do not think that the two Indian cases relied upon quite support the proposition which the learned Subordinate Judge has deduced from them. In the case of Beni Madhub Banerjee v. Joykissen Mookerjee 12 W. R. 495 (1869) the question of the permanency of the tenure was not the primary question for consideration. The question which directly arose in that case was one relating to the transferability of the tenure; and it was held upon the evidence adduced in that case, part of which was evidence of local custom, that tenures of the kind then under consideration were transferable. What is relied upon is the following observation in the judgment of Sir Barnes Peacock. His Lordship observed:

If he (that is, the Plaintiff) allowed the Defendants to erect pucca buildings upon the land without objecting, it appears to me that he was bound in the same way in equity as if he had granted them a pattah with the privilege of building pucca houses on the land, and I think that Mr. Justice Kemp is right in holding that the Plaintiff was precluded by his conduct from turning the Defendants out of possession.

That observation must be taken in connection with the facts of the case, and taken in that connection it does not support the broad proposition that a landlord by merely not objecting to his tenants raising pucca buildings confers on the tenant a permanent right to remain on the land. If there are other circumstances in the case, such as long possession, such circumstances coupled with the acquiescence of the landlord in the raising of pucca buildings and his continuing to receive rent from the tenant after such buildings have been raised [as was found in Zeshwada Bai v. Ram Chandra, I. L. R. 18 Bom. 66 (1894)] may justify an inference that the tenant has a permanent right. But just as coupled with circumstances such as long possession and long acquiescence, the fact of a permanent building'' being allowed to be erected without objection, may warrant an inference in favour of a permanent holding, so there are circumstances which may go far to weaken the force of that inference; and one of these is the circumstance of the landlord''s interest being let out in ijara as was alleged in this case and found by the Munsif.

The existence of such an ijara would prevent the landlord from asserting his immediate right of possession, and the absence of objection to the erecting of a permanent building by a tenant during the continuance of an ijara should not be construed as amounting to acquiescence such as might be inferred where the landlord is in direct receipt of rent from the tenant.

The omission of the lower Appellate Court to consider the circumstance of the existence of the ijara is therefore one which vitiates its decision upon the question of acquiescence.

It was argued by the learned vakil for the Respondent that it was not open to us in second appeal to interfere with a finding of fact upon a ground like this. We do not consider this contention sound. It is quite true that it is not open to us to question the correctness of a finding of fact; but it is open to us to question the soundness of an inference drawn from a finding of fact; see Ram Gopal v. Shamskhaton (4). The inference of acquiescence drawn from the fact, namely, that the building was (4) I. L. R. 20 Cal. 93 (1892).

raised with the knowledge of the Plaintiff is an inference, the soundness of which is open to revision in second appeal : and one of the grounds upon which we think it necessary that the conclusion should be revised is that in arriving at that conclusion the lower Appellate Court has omitted to take into consideration the important circumstance of the existence of an ijara.

Then with reference to the second contention of the learned vakil for the Appellant, that the facts found are not sufficient to warrant the inference that the tenure was permanent, we would observe that the lower Appellate Court has based its conclusion in favor of a permanent tenure upon three facts,-- the existence of a pucca musjid on the land in dispute, the existence of another pucca building on it, and long possession of the Defendant. Of these three facts, one, namely, the existence of another pucca building beside the mosque, is only barely stated in the judgment of the learned Subordinate Judge without any reference to the circumstances under which that building was erected, circumstances which are set out in detail in the Munsif''s judgment in page 8 of the paper-book. Of course if the learned Subordinate Judge displaces the Munsif''s finding with regard to these circumstances the matter would be different. As it is, the Munsif''s finding on the point, that this building was stealthily erected, and its erection led to the institution of this suit, has not been displaced; and so long as it is not displaced the existence of this building cannot warrant any inference of a permanent right but on the contrary would warrant an opposite inference.

We are far from saying anything as to the weight to be attached to the evidence in support of the circumstances detailed by the Munsif in his judgment. It is for the lower Appellate Court to say how far that evidence is to be relied upon. What we do say is that the judgment of the lower Appellate Court is vitiated by the two errors pointed out above. That judgment must therefore be set aside and the case remanded to lower Appellate Court in order that it may reconsider the evidence having regard to the observations made above.

We would point out for the consideration of the lower Appellate Court that although upon the authorities, of which we may notice the case of Gungadhur Shikdar v. Ainuddi Shah Biswas I. L. R. 8 Cal. 960 (1882), Courts are at liberty to presume if they think fit the permanent character of any tenure upon proof of long possession, of erection of permanent structures upon the land, and of succession of one tenant after another by inheritance, the absence of any of these circumstances must always have an important effect upon the conclusion to bo drawn, and that in this case one of these circumstances, namely, succession of one tenant after another by inheritance, is wanting. The cost of this appeal will abide the result.