Shaikh Dargahan and Others vs Hafiz Mohammad Zayauddin

Wort, J.—This appeal arises out of an action in ejectment. The defence was that the defendant-tenants had a permanent right in the land. The lower Appellate Court reversing the decision of the trial Court has held that the tenancy was not a permanent one and has decreed the plaintiff''s suit. I must confess that I find very considerable difficulty in deciding the case because apart from the authority of the Judicial Committee in AIR 1927 102 (Privy Council) should have thought that the inference to be drawn from the facts in this case was an inference of fact and not an inference of law. But their Lordships of the Judicial Committee of the Privy Council have held otherwise. I say I should have thought it was a question of fact, because what the Courts below were trying to determine in this case was what happened between the landlord and the tenants at the time the tenancy came into existence. To put it shortly, the Courts below were concerned with the question whether the landlord had granted to the tenants a permanent right or only a temporary right in the land at most it would appear to me to be a question of mixed fact and law as to what inference one could draw from the subsequent acts of the parties about what the tenancy was. In Kamal Kumar Datta and Another Vs. Nandalal Dubey, . Sir George Rankin found himself in the same difficulty, and I can only say that the difficulty that I find in this case is best expressed in the words of the learned Chief Justice as reported at page 743 of the Report. But he recognized that he was bound by the decision of their Lordships of the Judicial Committee in AIR 1927 102 (Privy Council) , to which I have already referred.

In Kamal Kumar Datta and Another Vs. Nandalal Dubey, , the Chief Justice and Mukerji, J. held that there was no permanent right in the tenant. The facts proved in that case were that the origin of the tenancy was unknown; that the tenants had held the land throughout for residential purposes; that they had paid the same rate of rent for about 14 years; that the tenant was a labourer; that the land was occupied by mud-walled huts some of which were very old and some of them had been erected by the tenant himself since his father''s death about 30 odd years before the action. In the case before me, the proved or admitted facts are that the origin of the tenancy was unknown; that the family had occupied the land for at least 100 years; that the land had been used for residential purposes; that no rent had been paid and that the land had been occupied by a building consisting of 12 rooms and three court-yards; walls were of mud and the roofs were thatched. From those facts as I have said the Judge in the Court below ha3 declined to draw the inference that the tenancy was a permanent one, facts which are not substantially different from those in Kamal Kumar Datta and Another Vs. Nandalal Dubey, .

I do not propose to refer to all the authorities which have been quoted in this Court. Each case depends very largely upon its circumstances; in one, certain facts may have been present and in the other they were not, and it is therefore difficult to lay down as a universal rule that the inference is one of law in all cases. In William M. Grant v. Mrs. Robinson 11 C.W.N. 242, Sir Francis Maclean held that from the facts proved in that case the Courts below were justified in drawing the inference that the tenancy was a permanent one.

By the judgment of the learned Chief Justice in that case I understand him to mean that the inference was a question of mixed law and fact. In Moharam Chaprasi v. Telamuddin Khan 16 C.W.N. 567 Mookerjee and Carnduff JJ. held that the question of the nature of the tenancy is a mixed question of fact and law. The inference as to the nature of the tenancy from the facts found is a question of law which can be gone into in second appeal. In that case the lower Court had held that the tenancy was not a permanent one but the defendants were merely tenants-at-will. The facts proved were:

(1) that the original tenant and his successor had been in occupation of the land for over sixty years, (2) that the rent had never been varied, (3) that the tenancy had been treated by the landlord as heritable, and (4) that the land was let out for residential purposes;

and the learned Judges there proceeded to state upon those facts that they were of the opinion that the inference was legitimate that the tenancy at its inception was permanent. But again the words used by the learned Judges were consistent in my opinion with the proposition that the inference to be drawn from the facts found was an inference of fact, and what the learned Judge in fact stated was that it was open to the Court of fact to come to the conclusion that the tenancy was a permanent one although as a matter of fact the Judge in the Court below in that case held, as I have already stated, that the tenancy was not a permanent one.

The case in Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, is useful inasmuch as the authorities with regard to this matter have been collected which, if I may be allowed to say so, only emphasize the difficulty which is experienced in deciding a case of this kind. The facts which have been found in this case, namely that the origin of the tenancy was unknown, that the family had been living in this house for over 100 years and no payment of rent had been made and that the land was for residential purposes are findings which are present either in the same form or similar form in cases which are referred to in Abdul Hakim Khan Chaudhuri Vs. Elahi Baksha Sha and Others, in which it was held that the tenancy was permanent.

But one of the disputed matters before me is whether the fact that the buildings were kuchha and not pucca buildings is a fact which could prevent the Court from holding that the tenancy was a permanent one. The learned Chief Justice in Kamal Kumar Datta and Another Vs. Nandalal Dubey, pointed out that the existence of buildings on the land adds nothing to the fact that the land was used for residential purposes, and I find it very difficult to come to the conclusion that the mere fact that the buildings are made of mud and not of bricks can be a distinguishing feature in the case and a feature which would prevent a Court from holding as a matter of law that the tenancy was not a permanent one, as the fact whether the buildings are made of mud or bricks depends very largely upon the financial position of the person occupying the land. The word "permanent" as applied to buildings in India is a relative term and I suppose that even if it be the fact that the tenancy in its origin was a permanent one, the tenant would erect buildings upon the land which would be consonant with his position in life.

The argument, as I understand it, turns entirely upon the existence of the nature of these buildings and I fail, if the matter is a question of law, to come to the conclusion that the fact that buildings were made of mud detracts from the inference which the authorities seem to show must be drawn from the proved facts, namely that the tenancy is a permanent one. Had it not been for the authority of their Lordships of the Judicial Committee of the Privy Council in AIR 1927 102 (Privy Council) , I should have come quite clearly to the conclusion that it was open to the Court of Appeal to come to the conclusion on the facts proved that the tenancy was a permanent one. But to use the language of Sir George Rankin in Kamal Kumar Datta and Another Vs. Nandalal Dubey, , it would not be an inference "compulsory in law."

However, I am of the opinion that the fact that the buildings were not of brick is insufficient to make me hold that the tenancy in this case was not a permanent one. For those reasons, I am of opinion that the decision of the learned Judge in the Court below was wrong. His order must therefore be set aside and the decree of the trial Court restored. The appeal is allowed with costs. There will be leave to appeal.