Mt. Batulan vs Sayid Mohammad Naeem

Dhavle, J.—This is an appeal by the defendant in a suit for recovery of possession of land in which, according to the plaintiff, his predecessor-in-title and other maliks had allowed the defendant''s father to build a temporary shed for residential purposes on condition that he would cook food for the maliks on ceremonial occasions and render other menial services on wages. Plaintiff said that the defendant had stopped rendering services and then after a service of notice to quit, this suit was brought for recovery of possession. The defence was that the land had been settled with the ancestors of the defendant for permanent residential purposes more than a hundred years ago, that the tenant had put up substantial structures worth more than Rupees 4000 on the land, that there had been several successions, and that while the tenant had put up the substantial structures in the honest belief that he had a permanent right, the landlords, knowing that the ancestor of the defendant was acting under such belief, had stood by and allowed the expensive structures to be put up.

The trial Court found that the land had been settled with defendant''s father in 1317 Fasli on the conditions alleged by the plaintiff, and that even if the structures, which the learned Munsif found were not substantial, had been put up with the knowledge of the plaintiff, the mere fact that the landlord stood by and acquiesced would not suffice to raise any equitable estoppel against him. The suit was accordingly decreed; and defendant appealed to the District Judge. The appeal was heard by a Subordinate Judge, who concurred in the findings of the learned Munsif.

The first point urged before me is that as admittedly the grant was for residential purposes, the Court should have started with a presumption of permanency; and in support of this contention, Sir George Rankin''s remarks in Debendra Nath Dhang and Others Vs. Pashupati Nath Deb, have been referred to. The learned Chief Justice said that upon the question whether a tenancy is permanent or not, the law of India attaches a good deal of importance to the question whether the tenancy was for residential purposes apart altogether from the question whether substantial structures were built upon the land and that in this country the old-fashioned notion at all events was that a place which was intended as a family home was very likely to be intended to be held in permanent right. These observations however can have no application to a tenancy created so recently as 1317, and that too on condition of the tenant performing menial services.

The learned advocate has next contended that there was an equitable estoppel in the case "on general principles" that a landlord who allows a substantial structure to be built by the tenant in the absence of a written lease should be taken impliedly to contract that, whether or not the tenancy was permanent in its inception, he would give a permanent interest to the tenant by reason of the substantial structure.

Now, in the first place, the finding of fact is that the structures put up by the defendant and his predecessor were not substantial. Defendant said that they were worth more than Rs. 4000, but a pleader commissioner found that they were only worth Rs. 528, and this figure was accepted by the lower Courts.

The learned advocate urges that the sum of Rs. 528 was large relatively to the means of the original tenant and that therefore the structures should have been held to be substantial. I am not sure that it is open to me in second appeal to take that view. But, in any case, it is clear that the proposition formulated by the learned advocate "on general principles" cannot be accepted as at all sound.

The learned advocate had indeed, no difficulty in distinguishing on the facts of the case Beni Ram v. Kundan Lal (1899) 21 All 496 on which the trial Court relied. But in that decision there is a quotation from the speech of the Lord Chancellor in Ramsden v. Dyson (1865) L R 1 H L 129 showing the rule on the point:

if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end.

It does not seem to me that the application of this rule is affected by the mere circumstance that in the present case there was no written lease even though the defendant''s father took the land as recently as 1317 Fasli.

Of special circumstances the appellant has not been able to show any at all. He did endeavour in the trial Court to establish that the construction of the substantial buildings on the land had been supervised by the plaintiff; but that was not the case set up in his written statement, and it was disbelieved by the trial Court with which the lower Appellate Court agreed. The contentions urged before, me thus fail.

The appeal is dismissed with costs.