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

Wort, J.—These are two appeals, one by the defendants and the other by the plaintiffs, in the following circumstances. The plaintiffs'' action was for an injunction to restrain the defendants from continuing an alleged breach of an agreement of 1932, alternatively for possession of the property, notice to quit having been served. The agreement of 1932 was in settlement of certain proceedings taken by the plaintiffs u/s 107, Criminal P.C. There it was alleged that there was a possibility of a breach of the peace, that the defendants were not complying with the terms of their tenancy and of the agreement mentioned. The agreement, as I have said, was with regard to a roof, and it was therein undertaken by the defendants that they would build a thatched roof with tiles and would not make a chat; this was to be done with, in fifteen days.

The question that came to be determined by the trial Court and the Appellate Court was, first of all, whether there was a breach of the agreement of 1932; and, secondly whether the plaintiffs in the alternative were entitled to eject the defendants. The decision of the latter question depended upon whether the defendants had (as they alleged) a permanent lease or whether their tenancy was from month to month. Now, the issue as regards the tenancy has been decided against the plaintiffs, the Judge holding from the facts that there was a permanent tenancy. As regards the other question, the Judge has held that there has been a breach of the agreement.

I propose in the first place to deal with the alleged breach of agreement of 1932. I might add at this stage that the case has been argued with great ability by Mr. Manuk on behalf of the defendants and by Mr. Khurshed Husnain on behalf of the plaintiffs, so I find it unnecessary to reserve my judgment although the arguments have been long and detailed. With regard to the question whether the defendants had broken the agreement of 1932, I must make a further statement. It appears that the present defendants came into possession of the premises by an assignment of 1930, two years before the agreement the breach of which is complained of.

But the original tenancy was one of 1913 under an agreement or kabuliyat which was unregistered and therefore inadmissible in evidence to prove that it was a permanent tenancy. There was a statement in the Court below that there was a patta, but that was not produced. Therefore both on the ground that the kabuliyat of 1913 was not registered and on the ground that there was no patta, having regard to the decision of the Full Bench of this Court, the document which I have before me is inadmissible for the purpose of proving the original tenancy of 1913.

It would be otherwise, if the correct view of the matter is that the document constitutes merely a tenancy from month to month. Under that document the predecessor, in-interest of the defendant cove-nanted in these terms:

I declare and put in writing that I shall, in keeping with the terms of this kabuliyat, build a tiled straw thatched house and shop on the land taken in settlement.

Now, it has been held in this case (and it is quite unnecessary to go into further detail with regard to the matter) that the intention of the parties was that the house or premises to be built by the defendants should be built in such a way as not to overlook those of the plaintiffs or to affect their privacy. It was the contention of the plaintiffs that there had been a breach of this understanding, and indeed the breach of the express terms of the agreement of 1932, as I have already stated, was the reason for this action. Some fifteen days after the first agreement of 12th January 1932, i.e. on 27th January 1932, the parties came to another agreement. Perhaps it would be better to describe the second document as a statement to which both parties put their names. The terms were these:

The petitioners second party have completed the thatching of the house with tiles as promised in the petition filed on 11th January 1932 (the date given should have been 12th January 1932), and now the petitioner Akif Hussain, first party, has no objection whatsoever left in this connexion. Therefore it is prayed that the case may be dismissed.

It really amounts to a compromise of the criminal case u/s 107, Criminal P.C. What the plaintiffs said in this case was this that, although they had agreed on 27th January 1932 that the original terms of the 12th of the month had been complied with, the defendant had surreptitiously broken the agreement by erecting a "roof" inside the building and under the tiled and thatched roof. What the defendants really did was this, that whereas on the completion of the titled and thatched roof they had a one storied building, they erected another roof (or as it has been described and wrongly described a ceiling) inside the building which converted it from one storied into two storied. They also opened a window which according to the plaintiffs gave on to the plaintiffs'' premises and affected their privacy. Now, there was some discussion as regards this window in the trial Court, but it seems to me that the matter is disposed of by the statement of the learned Munsif who, in deciding Issue 7, says:

As regards the right of privacy, the learned advocate for the plaintiffs said at the outset that for this he did not rely on any right beyond what he got by agreement.

If this matter had been pressed very seriously, which perhaps it cannot be having regard to the statement made in the trial Court, I should have been inclined to remand the case for the determination of the point which I shall indicate in a moment.

Now, it is quite clear that the agreement of 12th January 1932 had in fact in letter been complied with, as is clearly shown by the subsequent statement which was made by the parties in settling the 107 proceedings. The only question therefore to be determined is whether by turning the building into a two-storied one the defendants had caused a breach of the agreement which they had entered into. It is perfectly obvious, although perhaps it may not be necessary to decide it, that the intention of the agreement was that the privacy of the plaintiffs should not be affected, but I am clearly of the opinion that as a matter of law it cannot be said that the erection of a ceiling or floor or, it may be correctly described a roof inside the building, is itself a breach of the agreement. Therein arises the point to which I referred a moment ago, namely whether having erected the ceiling inside the house, turning a one-storied building into a two-storied one, and having thrown open a window on the east side which gave on to the plain, tiffs'' premises, the defendants had in fact broken the agreement and the whole intention of the parties had been vitiated in that way? But haying regard to the decision which, it seems to me, I am bound to come to on the other part of the case, it is unnecessary for me to decide that point.

But if my decision on the other question is wrong, it seems to me necessary that the case be remanded for a determination of the question whether a window had been made which overlooked the plaintiffs premises, and, if that be answered in the affirmative, whether thereby a breach of the agreement of 1932 had been caused.

The other question is a much more serious one. The question is, whether the plaintiffs were entitled to eject the defendants. If the document of 4th October 1913, the, kabuliyat executed by Gajadhar Sahu, the predecessor-in-title of the defendants, be construed as creating a tenancy from month to month or if they have otherwise such a tenancy, then quite clearly the plaintiffs having issued a valid notice to quit were entitled to eject the defendants. The defendants derived their title from Gajadhar Sahu thus: A lease was granted to Gajadhar in 1913. In 1915, Gajadhar died leaving his brother Bulkan who took possession; in 1923 Bulkan sold his interest to one Hira Sahu and in 1930 Hira Sahu in turn assigned his interest to the defendants for a sum of Rs. 2461. If the kabuliyat is to the construed as creating a tenancy from month to month, the only clause which can be relied upon is this clause:

For the purpose of building a shop and house fixing the ground-rent at annas four a month, the annual ground-rent being Rs. 3.

The period at which rent is payable has always been held to be evidence of the term of a tenancy. But I should hesitate before coming to the conclusion in this case that on the construction of the document itself it was a monthly tenancy, as the document is certainly ambiguous, regard being paid to the words "the annual ground-rent being Rs. 3." But the defendants did not rely on any such contention, naturally their contention being that they had a permanent lease. But, quite apart from the fact that no patta exists, I am prevented from relying upon this kabuliyat for holding that the defendants had a permanent lease for the reason that it is unregistered. Mr. Manuk who appears on behalf of the defendants does not seriously dispute nor can he dispute that proposition. I am therefore thrown back, for the decision of the case, on other grounds. Before I leave that branch of the case I would say that it is impossible, as Mr. Khurshed Husnain argues, for this Court to come to the conclusion in the circumstances of the case that the defendants had a permanent lease, and for this simple reason that when the origin of the tenancy is known, as it is here, it is impossible to hold as a matter of inference from the facts proved that the tenancy is other than what it purports to be.

And indeed Mr. Manuk does not seriously contend that on the facts of this case the inference should be drawn that the defendants had a permanent tenancy. But what he does contend here is that the landlords, in the circumstances of the case, are estopped from contending that the tenancy is other than a permanent tenancy. I have already stated some of the facts upon which the defendants rely for establishing their case: the ground lease in 1913 for building purposes, the sale of the house and land in 1923 and again in 1930. There are two other facts which are relied upon by the defendants: one is that in 1915 when Gajadhar died his brother Bulkan took possession; and the other is that in 1919, four years afterwards, Bulkan executed an ijara deed in favour of a person whose name is irrelevant. Another fact is that in the earlier proceedings, the details of which it is perhaps unnecessary to state, the plaintiffs complained to the predecessor of the defendants that in the building of their premises the defendants were encroaching upon the plaintiffs'' land; and again, and perhaps the most important fact upon which the defendants rely, are these agreements of 12th January and 27th January 1932. Mr. Manuk on behalf of the defendants contends that these facts in law constitute such a representation as is contemplated by Section 115, Evidence Act, and, in support of his contention he relies upon a number of authorities or principles laid down in those authorities.

The case most in his favour is a decision of this Court in A.H. Forbes v. Hanuman Bhagat A.I.R (1914) . Pat. 88 where two questions fell to be considered by Jwala Prasad and Adami JJ., first whether on inference drawn from the facts of the case there was in law a permanent tenancy; and, secondly, whether to use the words of the learned Judges, "the subsequent acts and conduct of the lessor and lessees converted the lease into a permanent one." In deciding the first point the following statement was made.

upon the facts in the present case and the lease in question, we are not prepared to differ from the view of the Court that at its inception the lease was a permanent lease and not one from year to year. The respondents are on firmer ground on Issue 2.

Issue 2 being estoppel. The learned Judge there particularly referred to the fact that in 1907 before the foundations of permanent or pucca buildings were laid, the defendants applied for permission and they were given that permission. Comment was made that under the parwangis which had been given by the landlord it appeared that the buildings had already been completed and that the construction of those buildings was confirmed by the plaintiff, the landlord. There were a number of other facts, including the fact that no higher rent was claimed as a condition of the erection of these permanent buildings, and the learned Judge summed up the position by stating that

the plaintiff in this case did not only acquiesce in the construction of the buildings in question by merely abstaining from interference, but he actually granted permission for erecting the buildings.

Mr. Manuk then relies upon the observations of their Lordships of the Privy Council, as expressed by Mr. Ameer AH, in AIR 1925 146 (Privy Council) for his contention that there is an estoppel in this case. That was a case in which there was one possible construction of the lease (which incidentally was a registered lease), that it was a tenancy from year to year. But, on the footing of a letter written by Forbes'' agent that the lease was in fact a permanent lease, their Lordships of the Judicial Committee of the Privy Council held that the defendants were estopped from asserting that the lease was not permanent. Mr. Manuk contends that although there may have been a definite specific statement in AIR 1925 146 (Privy Council) which their Lordships held to be an estoppel, yet, estoppels are not confined to specific statements. For this contention he relies upon Section 115, Evidence Act, which provides: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person": in other words, it may be an act or omission on the part of the landlord; and, if he can show in this case that there has been an act or omission upon which the defendants acted, then the landlords in this case, equally as in AIR 1925 146 (Privy Council) would be estopped from asserting that the tenancy of his clients was not a permanent one. Now, their Lordships in coming to their conclusion in AIR 1925 146 (Privy Council) made this statement at p. 186 of AIR 1925 146 (Privy Council) .

The Munsif and the District Judge have rightly held, in their Lordships'' opinion, that the statement in the letter of 31st December 1903, is a statement of fact and not an expression of opinion as contended by the plaintiff.

Their Lordships then proceeded to rely upon the decision in Ramsden v. Dyson (1865) 1 H.L. 129 and repeated the Well-known passage to which reference has been made in more than one ease. Mr. Manuk relies upon that passage which runs thus:

The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and without objection by him lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell (1811) 18 Ves 328 and as I conceive, is open to no doubt.

Now, it is quite clear that the defendants cannot rely on Ramsden v. Dyson (1865) 1 H.L. 129 as the case before me is not a case in which the defendant

takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation...lays out money upon the land.

There is another reason to which I shall in a moment refer for coming to the conclusion that Ramsden v. Dyson (1865) 1 H.L. 129 is no authority for the proposition put forward by Mr. Manuk. Ramsden v. Dyson (1865) 1 H.L. 129 taken as a whole, cannot be an authority in Mr. Manuk''s favour as the decision must be confined to the facts of that case and they were that there was a representation of fact and the party had acted upon it. But here Mr. Manuk says there was an "act or omission" u/s 115, Evidence Act. I should like to observe that their Lordships of the Judicial Committee of the Privy Council have stated that Section 115, Evidence Act, represents, or is the same as the law of estoppel in England : see Sarat Chander Dey v. Gopal Chunder Laha (1892) 20 Cal. 296. I would now like to refer to one or two other cases in passing. Reference was made to Promada Nath Roy v. Srigobind Chowdhry (1905) 32 Cal. 648 It will be observed, however, that that was not a case of estoppel but a case in which the Court presumed that in the origin the lease was intended to be permanent. Reliance has also been placed on certain observations of Rankin C.J. Kamal Kumar Datta and Another Vs. Nandalal Dubey, . There the origin of the tenancy was unkown: it could be traced back for about hundred years, rent had not been enhanced at least for forty years, certain small houses or huts had been built upon the land, the land had been used for residential purposes but the Court declined to draw the inference that there was a permanent tenancy. The observation of Sir George Bankin upon which Mr. Manuk relies is that the erection of the buildings was a notice to the landlord that a permanent tenancy was claimed; and it is contended in this case that the creation of more permanent buildings after the kutcha buildings had been pulled down was also a notice to the landlords in this case that a permanent tenancy was created. Now, it is a remark, able fact that apart from AIR 1925 146 (Privy Council) and the decision reported in Mr. A.H. Forbes Vs. Hanuman Bhagat and Others, to which reference was made in the early part of my observations, there is no decision in which this rule of estoppel has been applied. It is not conclusive of the fact, but it does seem to indicate the difficulty of holding that the landlord is estopped.

The facts upon which Mr. Manuk relies, for his contention that the landlords in this case are estopped, I have already referred to and do not propose to state them again. It must be noticed that apart from the agreements of 1932, all the "acts or omissions" which are relied upon took place years before the present defendants came into possession. It is difficult, indeed it is impossible I think to contend that the fact that Gajadhar''s brother Bulkan took possession in 1915 when Gajadhar died, and the omission of the landlords to take any action can be treated as a representation by the landlords causing the present defendants to believe that the then holder of the land had a permanent tenancy; and it seems to me equally impossible to contend that the present defendants in any way acted upon such belief in the year 1930 when they took possession of the land. A building was already on the land and it cannot be said therefore that the defendants built upon the land acting upon the representations of the landlord. In my judgment, quite clearly the omissions or acts of the landlords before the present defendants came into possession are not matters upon which the defendants can rely for establishing an estoppel. But, I will assume for the purposes of the case that those facts can be relied upon by the present defendants, that is to say, those facts and circumstances prior to the defendants'' possession may be relied upon for what they are worth by the defendants. 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 landlords 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 Datta and Another Vs. Nandalal Dubey, .

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.

Mr. Khurshed Husnain appearing on behalf of the plaintiffs relies on the other hand upon the well-known case in Lala Beni Ram v. Kundan Lall (1829) 21 All. 496 There the defendants failed to establish equitable estoppel. The land in that case had been let to five tenants for the purpose of constructing thereon a saltpetre factory at the annual rent of Rs. 28. The saltpetre factory had been constructed, but in course of time it got into a state of disrepair or was demolished, and then other buildings were erected and the defendants spent several thousands of rupees on those buildings. The plaintiffs instead of objecting or prohibiting (it was alleged), induced the defendants and their ancestors to build. Their Lordships of the Judicial Committee, reversing the decisions of the Courts in India, observed that the statement of the rule of equity made in Gopi v. Bisheshwar (1885) A.W.N. 100 was inadequate; and that in order to raise a case of equitable estoppel,

it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence from interfering or in active 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.

In referring to Ramsden v. Dyson (1865) 1 H.L. 129. Lord Watson repeated the words of the Lord Chancellor to this effect:

It follows as a corollary from these rules, or perhaps, it would be more accurate to say it forms part of them, that 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 building 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.

Mr. Manuk agrees that this decision lays down the proposition that mere acquiescence is not enough. What is there in the case before me other than acquiescence? There is the acquiescence or standing by, by the landlords when Bulkan the brother of Gajadhar took possession; there is acquiescence or standing by when he executed the ijara deed; and there is the same when there was a transfer to Hira Sahu and to the defendants. The only additional circumstance is the agreement of 1932. I held and I still hold that even assuming that acquiescence by the landlords up to 1930 were facts upon which a party could otherwise rely, no reliance could be placed upon them by the present defendants because they do not amount to a representation to them or their agent. But assuming they do, there is nothing, as I have said, but mere acquiescence or standing by, and the agreement of 1932 adds nothing to, but conditions the terms under which the defendants are presumed to have gone into possession. These acts or omissions are not clear representations which caused the defendants to act in the way they did. Their actions such as they were, that is to say the building operations, are referable to the agreement which they believed entitled them to build, and not to any representation by the plaintiffs.

I now pass on to the well-known decision in AIR 1931 79 (Privy Council) which Mr. Manuk contends is not an authority against him. This decision has been applied in this Court by my brothers Agarwala and Varma in Maina Sahu Vs. Mahanth Balak Das, I make no further reference to that authority, because I agree, that the facts in that case are almost precisely similar to the facts in AIR 1931 79 (Privy Council) . In AIR 1931 79 (Privy Council) the defendant had taken possession of the land on the understanding that he was to get a permanent lease. He proceeded to build structures of a permanent character upon the land, and then apparently made a request to the landlord to give him a permanent lease which he had contracted for there was an agreement that he should have a lease for five years. In the result the landlord brought an action against the tenant to eject him. The plea was taken and accepted that there had been part performance of the agreement, or that there existed an equitable estoppel. Lord Russell in delivering the judgment of their Lordships of the Privy Council, referred to the fact (which I have already stated in the earlier part of my judgment) that both the cases in Ramsden v. Dyson A.I.R (1865) . P.C. 146 and Gregory v. Mighell (1811) 18 Ves 328 were cases in which doctrines of part performance in contradistinction to estoppel were pleaded, and pleaded in suits in the Court of Chancery for specific performance. They had nothing to do with the facts of the case before the Privy Council. Lord Russell, in the course of his judgment, in referring to the facts, said this at page AIR 1931 79 (Privy Council) :

In truth this case, when the true facts are appreciated, is simple enough. The acts of the respondent are all referable to a verbal contract which was enforceable against the appellant at the time when the respondent''s expenditure was incurred, and for long afterwards. Unfortunately for the respondent, he allowed his rights to enforce his contract to become barred, with the result that he can only resist the appellant''s claim to possession by seeking to establish a title, the acquisition of which is forbidden by the statute.

And in referring to AIR 1925 146 (Privy Council) . Lord Russell stated that "that decision was based upon an estoppel grounded upon a statement of fact." Mr. Manuk rightly con. tends that the difference between AIR 1931 79 (Privy Council) and the case before me is that in that case there was an oral agreement of lease and in this case there is an agreement! which cannot be used in evidence as it was not executed in accordance with law. I fail to see what difference in the proper application of the principle those facts make. Indeed when the cases are examined they seem to bear a striking resemblance to one another. I have already stated and repeat that Mr. Manuk strongly relies upon the agreements of 12th and and 27th January 1932. It is impossible to contend that those agreements constituted any representation, because what was allowed by those agreements was referable to the interest which the defendants already had, namely the unenforceable lease. Indeed, the agreements rather restricted than enlarged the defendants'' right. To put it shortly, they were agreements which kept the defendants within the confines of the original agreement of tenancy. J fail to see any representation by ''act or omission'' by the land-lord, nor can I say that the compromise of 27th January 1932 can be described as an intentional ''act or omission'' on the part of the landlord which led the defendants to believe that they had anything other than what they had already got; namely that under the Transfer of Property Act and the Registration Act the defendants, "in the absence of a contract to the contrary", had an agreement or lease from month to month within the meaning of Section 106 of that Act.

I have so held in Amrit Sahu v. Mt. Bibi Salima Second Appeal No. 460 of 1935 in which it was decided that Section 106, T.P. Act, in using the words "In the absence of contract or local usage to the contrary," referred to a contract with regard to that particular matter, that is to say the term of tenancy. I cannot see in this case any estoppel which would prevent the landlords from contending now that what the defendants have got is merely a tenancy from month to month; and the plaintiffs having given a valid notice to the defendants to quit are entitled to eject the defendants. Nor does Section 53-A, T.P. Act, help the defendants. That Section gives the party relying upon it such rights which but for the lack of some formality they would have under the written agreement, but it gives no more and does not give any right which the informal agreement would not give. Mr. Manuk referred me to the order passed in Maina Sahu Vs. Mahanth Balak Das, but I can make no such order.

The result is that the plaintiff''s appeal is allowed, but having regard to my decision that it might be necessary to remand the defendants'' appeal for the determination of the question I referred to in the earlier part of my judgment, I make no order as to costs. The defendants have leave to appeal.