Ram Lal Sahu and Another vs Mt. Bibi Zohra and Others

Fazl Ali, J.—These are two Letters Patent appeals by defendants 1 and 2 from the decision of "Wort J., in a second appeal arising out of a suit which was instituted by the plaintiff-respondents in the following circumstances.

On 4th October 1913, the plaintiffs'' predecessor-in-interest had settled a piece of land with one Gajadhar Sahu for the purpose of erecting a shop and a house covered with tiles or a thatched roof at a rental of 4 annas per month or Rs. 3 per year. After the death of Gajadhar Sahu, his brother Bulakan sold the land with a house which had been constructed by Gajadhar upon it to Hira Sahu and Beni Sahu for a sum of Rs. 1500. On 17th September 1930 these persons sold the land and the house to the appellants Ramlal Sahu and Jugal Kishore Sahu for a sum of Rs. 6565. In 1931 the appellants demolished the old structure and began to construct a pucca house. This led to a dispute between them and the plaintiffs, and ultimately a notice u/s 144, Criminal P.C., was issued against them. After the expiry of the period during which the notice was in force the appellants again began to construct a pucca house and at the instance of the landlords a proceeding u/s 107, Criminal P.C. was started against him and his servants. Later on, after the matter had been fought up to the High Court, the parties entered into a compromise and on 12th January 1932 a petition was filed on behalf of the appellants informing the Court that they would construct a tiled house on the disputed land and would not construct a house with a pucca roof. On 27th January 1932, another petition was filed by the defendant to the following effect:

That your petitioner, the second party, had already constructed a tiled house according to the terms of the petition dated 11th January 1932. Now the petitioner Aquif Hussain, first party, has got no objection to it. Therefore it is prayed that the case may be struck off. In support of this signatures of both the parties and their mokhtears have been put on this petition.

On this petition the case was dismissed, but afterwards the plaintiffs discovered that the appellants had secretly constructed a pucca roof underneath the tiled roof, raised the walls of the house and opened a window on the eastern side of the house and so they sent a registered notice to the appellants determining the tenancy and calling upon them to quit the land and put the plaintiffs in possession thereof. As the appellants failed to comply with the terms of the notice, the plaintiffs brought two suits which were registered as Suit No. 80/33 and Suit No. 104/33. In Suit No. 80/33 the plaintiffs claimed a decree for one-fourth of the consideration money which had been paid by Ramlal Sahu and Jugal Kishore Sahu to their vendors on the ground that one of the terms of the lease was that in the event of the land being transferred such a sum would be recoverable by the landlord. In Suit No. 104/33, which has given rise to this appeal, the plaintiffs asked for the ejectment of the appellants (defendants 1 and 2) from the disputed land and in the alternative for an order directing them to remove the pucca roof and to close the window towards the east. The trial Court decreed Suit No. 80 and in Suit No. 104 directed the removal of the pucca roof and the closing of the window, but did not grant the prayer for ejectment. The decision of the trial Court was upheld by the first appellate Court but, on second appeal, Wort J. decreed ejectment. As two second appeals had been filed in the High Court one by the plaintiffs and the other by defendants 1 and 2 the latter had to prefer two appeals under the Letters Patent from the judgment of Wort J. also.

The only question which was argued in this Court was whether the plaintiffs were entitled to a decree for ejectment. Sir Manmatha Nath Mukherjee, who appeared for the appellants, contended in the first place that the lease of 1913 which had been executed by the plaintiffs in favour of Gajadhar Sahu conferred upon the lessee a permanent right of tenancy and secondly that if it be held that the lease was not admissible in evidence for want of registration or that the terms of the lease are not clear, the compromise of 1932 as well as the conduct of the parties since the execution of the lease were sufficient to show that the defendants were permanent tenants of the land.

It was also contended that the landlord by his acts and omissions must be deemed to have represented to the tenants that it was a permanent tenancy and the principle of estoppel would accordingly bar ejectment. The first point to be considered is whether the kabuliyat of 1913 which is admittedly an unregistered document is admissible in evidence. Strangely enough, both the parties urged us to hold that the document is admissible though they based their argument on different grounds.

It was contended by Sir Manmatha Nath Mukherjee who appeared on behalf of the appellants that it was admissible u/s 49, Registration Act as amended in 1929, the amended section being according to him retrospective in operation and that in any case it was admissible for a collateral purpose. The contention put forward on behalf of the plaintiffs on the other hand was that the document did not create a permanent tenancy but a tenancy-at-will or tenancy from month to month and was therefore admissible in evidence. The material portion of the kabuliyat which we are asked to construe reads as follows:

I, the executant...have taken settlement of...1 katha 8 dhurs parti homestead land for constructing a shop and house by fixing 4 annas ground rent per month. The annual ground rent is Rs. 3 and when there will be intercalary month every third year, the year will be of 13 months. I hereby declare and put into writing that according to the terms of this kabuliyat I shall construct on the land taken on settlement a shop and house covered with tiles or thatched roof and run a shop and I shall pay the ground rent & annas monthly besides the rent for theintercalary month to the said proprietors. If I execute any deed of sale or conditional sale in respect of the said house or shop in favour of any one else, I shall, according to the custom prevailing in this village, pay one-fourth out of the consideration money to the said proprietor. If at any time I, the executant, shall desire to give up the house I shall remove the materials of the house; to this the proprietor shall have no objection or contention whatsoever. I shall not fail to carry out the orders of the proprietor which may be fit to be carried out.

The points to be noted in regard to this document are firstly that it contemplated the construction of a merely tiled or thatched roof; secondly, that the rent fixed was payable monthly and though a sum of Rs. 3 was stated to be the yearly rent, it was made clear that if a particular year consisted of 13 months, there were to be 13 payments of annas each; thirdly that the sale was permitted only on payment of one-fourth of the consideration money; and fourthly, that it was expressly stated that the lessee was free to give up the house and remove the materials thereof whenever he chose.

In my opinion, it is difficult to hold in view of these terms that the tenancy created by the document was a permanent one. It is evident that at the time when the kabuliyat was executed the lessee did not have in contemplation the construction of a very substantial structure. The construction which was contemplated was a shop or a house with a thatched roof which could be removed at any time the lessee chose to do so. The rent also was a remarkably low one considering that the land was situated in the town of Jehanabad and consistently with the provision which enabled the lessee to remove the materials of the house which he might build on it the rent was fixed on a monthly basis.

Mr. Khurshaid Husnain who appeared on behalf of the respondents contended that the last provision of the document which enabled the lessee to give up the land whenever he chose to do so showed unmistakably that the tenancy created there under was a tenancy at will and not a permanent tenancy. The contention of Mr. Khurshaid Husnain seems to me to be correct, because it is well settled in England as well as in this country that when a tenancy is terminable at the will of the tenant it must be held to be terminable at the will of the landlord also. This proposition is enunciated in very clear terms in Coke on Littleton, Ch. 8, Section 68 in these words:

It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor; and so are all the books that seem prima facie to differ, clearly reconciled.

Again, in Halsbury''s Laws of England (1911 Edition), vol. 18 at p. 438 the law on the subject is stated thus:

A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at will must in law be at the will of both parties. As in other tenanoies, a tenancy at will arises by contract binding both the lessor and lessee and the contract may be express or implied.

The rule laid down in the above passage is a perfectly logical one and it being merely a rule of construction I would have felt no hesitation in applying it to the present case even if there had been no Indian precedents. I find however that the Madras High Court have clearly laid down in Manicka Mudaliar v. Chinnappa Mudaliar (13) 36 Mad. 557 that a lease by which the lessees are to hold for such time as they require or wish is a tenancy at the will of the lessee which in law is a tenancy at the will of the lessor also. In my opinion on the terms of the kabuliyat the appellants must be regarded as mere tenants at will. As the land was let for the purpose of building a house thereon, the option given to the tenant to give up the house must be construed to involve an option to give up the land also. Mr. Khurshaid Husnain also contended in the alternative that in any event the tenancy was a monthly tenancy in view of the statement in the kabuliyat that the rent for the land would be payable from month to month.

The document, as I have already stated, mentioned a yearly rent also, but Mr. Khurshaid Husnain''s contention receives some support from the fact that it also provides that where the year will consist of 13 months, the rent was to be payable for 13 months and not for 12 months. In my judgment therefore having regard to the terms of the kabuliyat the tenancy created thereunder must be held to be either a tenancy-at-will or a tenancy from month to month and that being so the kabuliyat though unregistered was admissible in evidence. But even if the present case is dealt with on the footing that the kabuliyat was not admissible in evidence, it is in my view difficult to infer from the circumstances proved in the case that the appellants were permanent tenants of the disputed land.

In Secrtetary of State v. Luchmeswar Singh (88) 16 Cal. 223 Lord Hobhouse dealing with the question of the proof of permanent tenancy observed as follows:

The Government undoubtedly are tenants of the Darbhanga Raj. It is for them to show why the landlord may not recover his property, and they can only do that by proving that there is some agreement between them and their landlord and that they shall have something more than the ordinary tenancy-at-will or from year to year. All they offer is some conjecture of such an agreement founded simply on their long possession at a uniform rate of payment. If we could not find out the origin of these things there would be strength in that argument but as the origin of them is known the argument loses its force. In fact the possession is not difficult to explain in other ways. It is not the business of the plaintiff to explain the possession; it is the business of the defendant to show that it leads to an inference of a perpetual tenancy.

These observations appear to me to be fully applicable to this case with this qualification only, that in the present case the appellants and their predecessors have not been shown to be in possession of the land for a very long time but have been in possession only since 1913. The tenancy here is of a known origin and the terms on which the original tenant was inducted on the land were admittedly put in writing at the inception of the tenancy. The land in dispute was mortgaged once and transferred by sale on two previous occasions but at least on the second occasion the landlord not only asserted that he was entitled to a share in the purchase money but also succeeded in recovering it. It has been contended before us that as the sale of the land with the house standing on it fetched no less a sum than Rs. 6565 in 1930, we must presume that the landlord must have allowed a substantial building to be erected on the land. But it appears that the land with the house had been sold previously for Rs. 1500 only and there is no clear finding before us as to the nature of the structures which had been put upon the land before 1930 or as to what were the circumstances under which this structure was built. We also do not know whether the price paid by the vendee in 1930 represented the market value or was a special price paid by the vendee by reason of any special advantage arising from the situation of the land.

On the appellant''s own case, it seems to be clear that whatever the nature of the old structure might have been, it had to be pulled down by the appellants before they proceeded to build a house with a pucca wall and a pucca roof on it. It is also clear that as soon as they proceeded to build the new house, there was objection on the part of the plaintiffs and in the course of a criminal proceeding the appellants had to agree to the plaintiffs'' terms. In AIR 1927 102 (Privy Council) the Privy Council dealing with the question as to whether a finding by the District Judge that a tenancy was permanent was binding upon the High Court in second appeal, observed as follows:

It is clear that the proper effect of a proved faot 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 be a legal inference from facts and not in itself a question of fact.

These observations clearly show that the finding of the first two Courts that the appellants had the status of permanent tenants was not binding on the learned Judge of the Court in second appeal. I think that the learned Judge was correct in his view that on the facts as they stand it is difficult to hold that the appellants are permanent tenants.

The appellants relied before us as they had done before Wort J. upon the decision of this Court in Forbes v. Hanuman Bhagat AIR 1924 Pat. 88. It appears that the defendants in that case had been inducted on a plot of land under a lease for an indefinite period (bemaidi) to enable them to erect a gola thereon and one of the terms in the lease was that the lessee was not to erect any pucca building without the consent of the lessor. Subsequently, the defendants applied for permission to erect pucca buildings on the land in question and such permission was granted on acceptance of nazarana. In proof of the permission parwangis were issued by the landlord stating that the permanent structures standing on the land had been erected with the permission and sanction of the lessor. In these circumstances a Bench of this Court consisting of Jwala Prasad and Adami JJ., held that

a reasonable construction of the lease was that it was intended to be permanent and that in any event the plaintiff having subsequently consented to the erection of pucca houses on the demised lease, he was estopped from ejecting the lessee.

Their Lordships made it clear in their judgment that the defendants were on firmer ground upon the question of estoppel and it appears to me that the reference in the judgment to the parwangis issued by landlords which recited that they had got permission to build permanent structures is sufficient to distinguish that case from the present case in which no express permission had ever been granted by the landlord to erect permanent structures. The next question to be considered is whether the plaintiffs are estopped from asserting in this case that the tenancy is not a permanent one. This was also one of the main questions raised before Wort J., and he has dealt with it in his judgment in these words:

The facts must be examined, the first being the lease of 1913 which was a building lease. It is impossible to hold that being a building lease it was necessarily a permanent lease or that being granted a building lease the defendants were entitled to believe that it was a permanent lease. They knew what they had. They had the document of 4th October 1913 and they knew what sort of right they had. The fact that Bulkan, the brother of Gajadhar, took possession is quite equivocal. The landlord might or might not have insisted upon the possession of the land being given up by Bulkan, but in no sense could it be said that the non-intervention of the landlord was a representation giving the defendants a permanent right in the property: see Kamal Kumar v. Nanda Lal AIR 1999 Cal. 37. The fact that the landlord stood by in 1919 when Bulkan executed the ijara deed is also equivocal. Bulkan was transferring such interest as he had, and it was the ijaradar''s look out as to what he got under that transaction. The transfer in 1923 and again in 1930 must in my judgment be looked at in the same light. It was on these facts and similar facts that the Calcutta High Court declined to infer that the tenancy there under consideration was of a permanent character. I refer to this decision as Mr. Manuk argues that the matters to be taken into consideration for coming to a conclusion whether on its proper construction a tenancy is a permanent one or not, are the same considerations which apply to the question whether in this particular case an estoppel is established.

In this Court stress was laid mainly upon the conduct of the landlord in allowing the predecessors of the appellants to build a substantial house on the land which is alleged to have fetched Rs. 6565 in the year 1930. I have already stated that there is no clear finding in the judgment of the Courts below as to the nature of the structure. But apart from this, the observations made by Lord Watson in Beni Ram v. Kundan Lall (99) 21 All. 496 furnish a complete answer to the contention of the appellants that mere non-interference by the landlord with the construction of the house with which the land was sold in 1930 amounts to an equitable estoppel. In that case certain land had been let out to five tenants for the construction thereon of a saltpetre factory at an annual rent of Rs. 28. The saltpetre factory had been constructed but after some time it ceased to exist and a number of other buildings such as shops, some kuchha and some pucca, dalans and kothas, two wells and a temple were built at a cost of three to four thousand rupees. The landlord had not objected to the erection of these buildings but continued to receive rent from the lessees even after they had been completed. On these facts the first two Courts as well as the High Court came to the conclusion that by the rules of equity he could not eject the tenants. The decision however was reversed by the Privy Council, and Lord Watson, in stating the grounds for doing so observed as follows:

The respondents knew that the predecessors of the appellants were the owners of the land let, and that their own title was limited to their occupation of the land as tenants, upon the terms and for the periods provided by the original lease of 1858. In order to raise the equitable estoppel which was enforced against the appellant by both the-appellate Courts below, it was incumbent upon the, respondents to show that the conduct of the owner, whether consisting in abstinence from interfering, or inactive intervention, was sufficient to justify the legal inference that they had by plain implication contracted that the right of tenancy under which the lessees originally obtained possession of the land should be changed into a perpetual right of occupation.

Their Lordships have had no difficulty in coming, to the conclusion that the respondents have failed to discharge themselves of that onus. If there be no point settled in the equity law of England, it is that, in circumstances similar to those of the present case, the mere erection by the tenant of permanent structures upon the land let to him, in the knowledge of and without interference by his lessor, will not suffice to raise the equitable right against the latter which has been affirmed by the Courts below. It must also be kept in view that in Indian law the maxim quicquid inrdificatur solo, solo cedit, has no application to the present case. The rule established in India is that of Section 108, T.P. Act, which provides that ''the lessee may remove, at any time during the continuance of the lease, all things which he has attached to,, the earth, provided he leaves the property in the state in which he received it.

Reference may also be made here to the well known case in AIR 1931 79 (Privy Council) which was decided on the following facts. In 1913 the appellant having verbally agreed with the respondent to grant him a permanent lease of a plot of land on Rs. 80 per month led him into possession. Shortly afterwards the respondent with the knowledge and approval of the appellant erected structures on the land at a cost of over Rs. 10,000. In December 1918 the appellant refused to grant the respondent the agreed lease and in 1920 sued to eject him. At the time of the suit the respondent''s right to sue for specific performance had become barred. Their Lordships of the Judicial Committee held that the doctrine of part performance could not be applied in India with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument.

His Lordship also while dealing with the doctrine of equitable estoppel as explained in the case in Ramsden v. Dyson (1866) L.R. 1 H.L. 129 observed as follows:

Their Lordships cannot help feeling that some confusion of thought has prevailed in the Courts below in regard to the facts of this case and the application of the authorities to those facts. This is no case of money being expended by the respondent in any mistaken belief as to his legal rights or of the appellant knowing of the existence of any such mistaken belief or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent.... The structures wore erected on the land...not in any mistaken belief of the respondent of his rights in regard to the land but in assertion of the rights which he correctly believed to be his.

In the present case there is nothing before us to show that the landlords whom the plaintiffs represent had encouraged the defendants or their predecessors to believe that they possessed any larger rights than had been conferred upon them by the lease of 1913. In the agreement which was arrived at between them in the course of the criminal proceedings in 1932 the plaintiffs merely forced the defendants to stick to the term of the original agreement and neither curtailed nor enlarged their rights. The mere fact that the defendants may have misunderstood their rights did not create any equity in their favour.

The fact that the defendants or their predecessors spent money in raising a structure on the land is not sufficient to give them a right of permanent tenancy. It was at the most a foolish act on their part and it cannot curtail the rights of the landlord over the land.

In my opinion the view taken by Wort J. in this case was correct and these appeals should be dismissed with costs, but I would direct that a provision be inserted in the decree to the effect that the appellant should remove the existing structure from the land within a period of four months from to-day during which the operation of the decree will remain suspended and that failing such removal it will be open to the plaintiff-respondents to apply to the Court of execution for an order of removal in which event the cost of the removal will be added to the costs of the suit.

Harries C.J.

I agree.