Madhusudan Singh and Others vs Jeolal and Another

Kulwant Sahay, J.—This appeal was heard on the 19th of March, last; and, as the parties expressed a desire to compromise the dispute between them, judgment was reserved and time was allowed to them to effect a compromise. On the 27th of March, it was represented that the compromise had been effected between the parties and that a petition setting out the terms of the compromise would be filed on the 1st of April, 1925. The case was accordingly again allowed to stand over until the 1st of April. On the 1st of April, it was represented by the learned Vakils on both sides that the matter had been finally settled between the parties and that in order to file a petition of compromise the khasra number of one of the plots had to be stated, which was not available; and time was again asked for to obtain the khasra number of one of the plots in dispute, The case was accordingly allowed to stand over till to-day. On the case being taken up today it is represented by the learned Vakils on both sides that no compromise has been effected. It is regrettable that if the compromise had fallen through, the matter was not brought to the notice of the Court earlier. I have, however, re-heard the learned Vakils on both sides to-day.

The appeal is by the plaintiffs and it arises out of action in ejectment. The suit was decreed by the Munsif, but, on appeal, it has been dismissed by the learned Subordinate Judge. The plaintiff''s case was that the land in dispute was gair mazrua land of the proprietors and that the defendants, without any right, had constructed a house thereon in the year 1321 Fasli; that a notice was given to the defendants to vacate the land, and they having failed to do so, the present suit was brought for a declaration that the defendant No. 1 had no right to the land in dispute and for recovery of possession thereof.

The defence of the defendants was that the land in dispute was in the occupation of the defendants for a long period and that they had built a dwelling house thereon and that they had acquired a right to remain on the land as a permanent tenant thereof and could not be evicted. It is admitted by the defendants that they are not raiyats of the village and, therefore, Section 182 of the Bengal Tenancy Act has no application to this case.

The learned Munsif found that the land was the gair mazrua land of the proprietors and that, as the defendants could not acquire any right of occupancy u/s 182 of the Bengal Tenancy Act, the relationship between the parties must be determined by the provisions of the Indian Contract Act; and he found that there was nothing on the record to show that the tenancy was of a permanent or transferable nature. The learned Subordinate Judge has dismissed the suit and the reasons given by him are these: He finds that the allegation of the plaintiffs that the defendants built the house in the year 1321 Fasli is false. He also finds that the defendants have been in possession of the house from the time of their ancestors and that, therefore, they have acquired a permanent right in the land and are not liable to be ejected. He further observes that the defendants are weavers and, therefore, members of the village community and, therefore, are not liable to be ejected. Next he finds that the defendants have paid mutarfa rents and have got receipts for a period of ten or eleven years from 1316 to 1326 Faslis. Lastly he finds that the defendants have been living in the village for the last twenty-five or thirty years. From these facts he has come to the conclusion that the defendants are permanent tenants of the homestead land and could not be ejected.

On second appeal it has been contended by the learned Vakil for the appellants that the reasons given by the learned Subordinate Judge are not sufficient in law to come to a finding that the tenancy of the defendants is of a permanent character. In my opinion, this contention is sound and ought to prevail. It is admitted by the learned Vakil for the respondents that the reasons given by the learned Subordinate Judge by themselves are not sufficient in law to create a permanent tenancy in the defendants. He, however, relies upon the decision in the case of Mohoram Sheikh Chaprasi v. Telamuddin Khan 13 Ind. Cas. 606 : 16 C.W.N : 567 : 15 C.L.J. 220. The facts of that case are distinguishable from those of the present case. In that case there was a finding that the original tenant and his successors had been in occupation of the land for over 60 years; secondly, that the rent was never varied; thirdly, that the tenancy had been treated by the landlord as heritable; and fourthly, that the land was let out for residential purposes. From these facts the Court came to a conclusion that the tenancy was of a permanent nature. In the present case it has not been found that the defendants and their predecessors had been in occupation of the land for a great length of time; all that has been found is that the defendants have been in possession from 1316 to 1326, and further that they have been living in the village (not in the house in dispute) for the last twenty-five or thirty years. Next there is no finding that the rent has never varied: all that is found is that for a period of ten or eleven years the same rent has been paid, and not that rent has continued unvaried from the time of the ancestors of the defendants down to the present time. Thirdly, there is no finding that the landlord has treated the tenancy of the defendants as heritable; and fourthly, there is no allegation and no finding as to the land upon which the house stands having been let out to the defendants or their ancestors by the proprietor for the purpose of building a dwelling-house thereon. The allegation in the written statement was that the defendants and their ancestors had been in occupation of the house in dispute. It may be that the house was standing on the land at the time the defendants and their ancestors first came to occupy it. No doubt, the allegation of the plaintiffs that the defendants built the house upon the land for the first time in the year 1321 has been found to be false; but upon the findings arrived at by the Courts below it is clear that the defendants cannot acquire a permanent right of tenancy in the land. There was an allegation in the plaint that a notice to quit had been served upon the defendants. This was not denied in the written statement and it appears that the sufficiency of the notice was admitted. In my opinion unless the defendants succeeded in proving upon evidence that there was a permanent lease granted to them or to their ancestors, the position of the defendants must be that of a tenant-at-will or from month to month or from year to year, and the tenancy is liable to be determined on a proper notice to quit. The legality or sufficiency of the notice in the present case has not been disputed and it must be taken that the notice given in the present case was sufficient.

In my opinion the decree made by the Munsif was correct. The decree of the Subordinate Judge must be set aside and that of the Munsif restored. The plaintiffs are entitled to their costs throughout.