Bejoy Gopal Mukherji Vs. Pratul
Chandra Ghose [1953] INSC 4 (28 January 1953)
DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 153 1953 SCR 930
CITATOR INFO :
R 1966 SC 629 (9) R 1972 SC 410 (17) R 1988
SC1531 (63)
ACT:
Landlord and tenant -Permanent
tenancy--Evidence-lnference from possession from generation to generation,
transfers, erection of structures and other circumstances -Mere increase of,
rent, effect of.
HEADNOTE:
Permanency of tenure does not necessarily
imply both fixity of rent and fixity of occupation and the fact of enhancement
of rent does not necessarily militate against the tenancy being a permanent
one. When, therefore, in a previous suit the only question was whether the jama
could be increased and the jama was increased:
Held, that this decision did not operate as
res judicata on the question of permanency of the tenure in a subsequent suit
for ejectment.
Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N.
57; Jogendra Krishna Banerji v. Subashini Dassi (1940) 45 C.W.N. 590, Probhas
Chandra Mallick v. Debendra Nath Das (1939) 43 C.W.N.828, relied on.
Mere possession for generations at a uniform
rent, or construction of permanent structures by itself may not be conclusive
proof of a permanent right but the cumulative affect of such facts coupled with
other facts may lead to the inference of a permanent 931 tenancy Where it was
not known how the earliest known tenant acquired the tenancy or what the nature
of the tenancy was, the tenancy bad passed from one person to another by
inheritance or by will or by transfer inter vivos, in the deeds of transfer the
transferee was given the right to enjoy from generation to generation forever,
pucka structures and tanks had been constructed, and though there was an
enhancement of rent in 1860, the rent bad not been increased since then:
Held, that all these circumstances put
together irresistibly led to the conclusion of a permanency of the tenure.
Probhas Chandra Mallik v. Debendra Nath Das
(1939) 43 O.W.N. 828 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 93 of 1952.
Appeal from the Judgment and Decree dated the
20th January, 1950, of the High Court of Judicature at .Calcutta (Das and Gupta
JJ.) in Appeal from Original Decree No. 141 of 1940 arising out of Judgment and
Decree dated the 8th May, 1940, of the Court of the Subordinate Judge, 1st
Court of Zillah If owrah in Title Suit No. 38 of 1948.
N.C. Chatterjee (A. N. Sinha, with him) for
the appellant.
Panchanan Ghosh (Syama Charan Mitter and A.K.
Dutt, with him) for the respondent.
1953. January 28. The Judgment of the Court
was delivered by DAS J. - This is an appeal by the plaintiff' in an ejectment
suit. His case was that defendant No. I Pratul Chandra Ghose was a Ticca tenant
of premises Nos. 2 and 3, Watkin's Lane, Howrah, comprising an area of I Bigha
19 Cottahs of land on a rent of Rs. 78 per annum under the landlords Kumar
Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, proform a defendants Nos. 2 and
3, that the plaintiff took a Mourashi Mokarari lease from these landlords on
the 23rd September, 1937, and thereby became the immediate landlord of the said
defendant and that the teancy was determined by a notice to quit dated the 7th
October, 1937. The trial Court, amongst other 932 things, found as a fact that
the tenancy of the defendant Pratul Chandra Ghose was permanent, heritable and
transferable and was not liable to be determined by notice.
The plaintiff preferred an appeal to the High
Court but the High Court dismissed that appeal holding, amongst other things,
that the finding of the trial Court as to the nature of the tenancy was
correct. The plaintiff has now come up on appeal before us after getting a
certificate from the High Court that it is a fit case for appeal to this Court.
Relying on the decision of the Privy Council
in Dhanna Mal v. Moti Sagar(1) Shri N. C. Chatterjee appearing on behalf of the
plaintiff-appellant contends that the present appeal is not concluded by the
concurrent finding of the Courts below that the tenancy was permanent because
that question was one of the proper inference in law to be deduced from the
facts as found by the Courts below. The learned counsel has, therefore, taken
us through. the evidence mostly documentary, as to the nature of the tenancy.
The earliest document referred to is Exhibit P/11, being a conveyance executed
in 1226 B.S.1819-1820 by Sheikh Manik and another in favour of Mrs. Cynthia
Mills Junior. How the vendors had acquired their title is not known. By that
deed of sale the vendors, for a money consideration,, conveyed their interest
in the lands described as Jamai lands to the purchaser who, on payment of rent
of Rs. 480 per kist, was to "go on possessing and enjoying the same with
great felicity down to your sons and grandsons etc., in succession by
constructing houses and structures." Mrs. Cynthia Mills died some time
before October, 1855, and her son John Henry Mills who had succeeded her sold
the premises to one Mrs. Sabina Love by a conveyance Exhibit P/10 dated the
29th October, 1855. It appears from that deed that by that time a tank with
masonry steps had been excavated on the lands which were described as a plot of
rentpaying garden land. The consideration for the sale (1) (1927) L. R. 54 1. A.
178.
933 was Rs. 1,000. The following provisions
of the sale deed are of importance:-- "From this date being entitled to
make gift and sale of the said property, you do bring into your own possession
the said lands etc., and on paying annually to the Maliks Zemindars Rs. 480
(Rupees-four and annas eight) in Siccas coins as rent and on getting your name
mutated in place of mine and obtaining Dakhilas in your own name, you do go on
possessing and enjoying the same with great felicity down to your sons and grandsons
etc., in succession." By a conveyance Exhibit P/9, dated the 10th October,
1856, Mrs. Sabina Love transferred the premises to one Francis Horatio Dobson.
The premises were there described as "garden land held under Mourashi
Patta" which Patta has since been held to be a spurious document in a
subsequent litigation. It appears from this document that Mrs. Cynthia Mills
had excavated a tank and constructed a pucca ghat and laid out a garden and
that on her death her son and heir John Henry Mills came into possession of the
land and that he had sold the premises to Mrs. Sabina Love and that after her
purchase Mrs. Sabina Love had enclosed the said lands and had manufactured
bricks with the earth of the land she purchased. The consideration for this conveyance
was Rs. 1,200. It provided as follows :---- " From to-day you become the
owner of the said lands with powers of making gift and sale. On keeping the
said lands together with the tank with all interests therein in your possession
and under your control, and on paying according to the previous Patta the
Mokarari annual rent of Rs. 480 in Sicca coins into the Sherista of the
Zemindar and on having the previous name struck off from the landlord's
Sherista and getting your own name recorded therein, you do go on enjoying and
possessing the same with great felicity down to your sons, grandsons etc., in
succession . " On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859, a
notice under sections 9 and 10 of Regulation V of 1812 was issued by the then Zemindars
Rani 934 Lalanmoni and Raja Purna Chandra Roy. It was ,addressed to " Mrs.
Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of Salkhia. " It rail as
follows: - " This is to inform you that you are in. possession of I Bigha
19 Cottas of lands of different kinds as per the boundaries given below as
recorded in the Mal Department in the said village for which according to your
own statement you are paying a yearly rental of Rs. 4126. But you have taken no
settlement in respect thereof from our estate (sarkar). Now on fixing the
annual Jama of the said lands according to the prevailing rate as per Jamabandi
at Rs. 137-8-0 a year, fifteen days' notice is given to you under the
provisions of sections 9 and 10 of Regulation V of 1812 and you are hereby
informed that within the said period you should appear before, our Zamindary
Cutchery and accept a Pottah after submitting a Kabuliyat according to the
practice in respect of the land and Jama. In default, after the expiry of the
said period action will be taken according to law, and thereafter no plea shall
be entertained." The requisition not having been complied with, the
landlords evidently filed a suit being Suit No. 590 of 1859. The pleadings in
this suit are not on the record. On 21st September, 1860, the Principal Sudder
Amin delivered his judgment, Exhibit 24. It appears from that judgment that the
following two issues had been framed:- " 1. Whether the plaintiffs have
served notice on the other party for assessment of Jama ?
2. Whether a Jama can be assessed in respect
of the disputed lands; if so at what rate?" The Principal Sudder Amin
overruling the objection of the defendants held that the landlords had full
power to assess the rent and accordingly he fixed the rent at Rs. 2 per Cotta
which worked out at Rs. 78 in respect of the entire land. There was an appeal
from that decision which, however, was dismissed by the judgment Exhibit Z (2)
delivered on the 18th March, 1862 . The Mourashi Patta relied upon was rejected
as 935 it was not registered and appeared, on examination, to have been newly
written and filed. Thereafter the landlord filed a suit for rent of the
disputed lands# against Dobson and Exhibits Z and Z (1) are the certified
copies of the judgment and order - passed thereon. On the 29th May, 1866,
Dobson executed two mortgages (Exhibits P/6 and P/7) in favour of De Rozario
and John Dominic Freitas for Rs. 4,000 and Rs, 2,000 respectively. The two
re-conveyances dated 29th February, 1874, and 12th March, 1874, are also on the
record. On 6th March, 1874, Dobson sold the premises to Henry Charles Mann by a
deed which is Exhibit P/5. The consideration for the sale was Rs. 9,500. It
appears from this deed that by that time there were two brick-built dwelling
houses on the property which came to be numbered as Nos. 2 and 3, Watkin's
Lane. On 11th September, 1883, Henry Charles Mann sold the premises to George
Jones for Rs. 10,000: vide Exhibit P/4. In both those sale deeds the transferee
is granted a heritable right forever. In the assessment books of the Howrah
Municipality (Exhibits 22 series) the interest of George Jones is described as
Mourashi. In the landlord's Sherista the nature of the tenancy is not stated
and Dobson continues to be the recorded tenant (Exhibit D series). There was,
however, no column. in the rent receipts to indicate the status of the tenant.
It appears that on the death of George Jones the estate came into the hands of
the Administrator-General of Bengal representing the estate of George Jones. In
the rent receipts of Dighapatia Raj the rent is said to be "received from
Jones--Administrator-General of Bengal." In May, 1931, the plaintiff and
the Administrator-General of Bengal entered into an agreement for sale of
premises No. 2, Watkin's Lane, being a portion of the premises in question, for
a sum of Rs. 10,001 and Rs. 1,001 was paid by the plaintiff as and by way of
earnest money. The landlords having declined to subdivide the ground rent
between the two portions of the premises, namely, Nos. 2 and 3, Watkin's Lane,
and a portion of the Premises No. 2, Watkin's Lane, having fallen down the 936
agreement for sale appears to have fallen through. On the 4th June, 1932, the
plaintiff suggested that a lease for 20 years should be granted which was
refused by the Administrator-General, Bengal. Then there was some negotiation
between the plaintiff and the Administrator- General of Bengal for the sale of
both the premises, Nos. 2 and 3, Watkin's Lane, to the plaintiff for a sum of
Rs. 12,500. The plaintiff on 9th April, 1933, sent a draft deed of sale
(Exhibit 15) for the approval of the Administrator- General of Bengal
describing the premises as a Mokarari Mourashi homestead. On 21st April, 1933,
Dighapatia Raj Estate wrote to the Administrator-General. of Bengal saying that
the tenancy was a Ticca one. On 6th June, 1933, the Administrator-General of
Bengal declined to approve the draft as drawn. After some further proposal by
the plaintiff for a long lease he declined to purchase the property on the
ground that the Administrator-General of Bengal had not a good marketable
title. Nothing having come out of the negotiations between the plaintiff and
the Administrator-General of Bengal the latter in September, 1936, invited
offers for sale of the lands (Exhibit B). The defendant No. I made the highest
offer of Rs. 12,251. and this was accepted by the Administrator-General in
preference to the offer made by the plaintiff for Rs. 11,251. The
Administrator-General accordingly executed a conveyance in favour of the
defendant Pratul Chandra Ghose (Exhibit P. X) who thereupon became the tenant
of the premises. Having failed to obtain title to the premises from the
Administrator-General of Bengal the plaintiff approached the landlords and on
22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the
disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs.
78 only.
The defendant Pratul Chandra Ghose filed rent
suits against the plaintiff in respect of the under lease held by the latter
under the Administrator-General of Bengal and obtained rent decrees. The
plaintiff, however, on the strength of his new title derived from the superior
landlords under the Mourashi Patta served 937 notice on the defendant Pratul
Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on
the last day of the month of Chaitra 1944 B. S. The defendant Pratul Chandra
Ghose, not having vacated the premises, the plaintiff filed the suit out of
which the present appeal has arisen.
Shri N. C. Chatterjee contends that in view
of the decision in the suit of 1859 it was not open to the defendant Pratul
Chandra Ghose to contend that his tenancy was a heritable permanent tenancy.
This point was neither pleaded nor raised in the trial Court but was put
forward for the first time before the High Court. The pleadings of the 1859
suit are not on the record but the substance of' the written statement appears
from the judgment Exhibit 24 passed in that case. The issues framed in that
case have already been set out. There was no issue regarding the character of
the tenancy, namely, whether it was permanent and heritable or otherwise. The
only question there was whether rent could be assessed tinder the Regulation.
There is nothing in that Regulation suggesting that rent could be assessed only
if the tenancy was a ticca tenancy or that rent could not be assessed if the
tenancy was a permanent one. The question of permanency of the tenancy was not,
therefore, directly or substantially in issue. We find ourselves in agreement
with the High Court that the permanency of tenure does not necessarily imply
both fixity of rent and fixity of occupation. The fact of enhancement of rent
in 1859 may be a circumstance to be taken into consideration but it does not
necessarily militate against the tenancy being a permanent one, as held by the
Privy Council in the case of an agricultural tenancy in Shankarrao v. Sambhu
Wallad(l).
The principle of that decision was applied
also to non- agricultural tenancies in Jogendra Krishna Banerji v. Sm. Subashini
Dassi(2). In Probhas Chandra Mallik v. Debendra Nath Das(3) also the same view
was taken. We, therefore, hold that the plea of res judicata cannot be
sustained.
(1) (1940) 45 C.W.N. 57.
(2) (1940) C.W.N. 590. (3) (1939) 43 C.W.N,
828, 121 938 Shri N. C. Chatterjee then contends, relying on the decisions in
Rasmoy Purkatt v. Srinath Moyra (1), Digbijoy Roy v. Shaikh Aya Rahman (2),
Satyendra Nath v. Charu Sankar (3 ) and Kamal Kumar Datta v. Nanda Lal Dule ( 4
) that the tenancy in this case cannot be regarded as a permanent one.
The decisions in those cases have to be read
in the light of the facts of those particular cases. The mere fact of rent
having been received from a certain person may not, as held in Rasamoy Purkatt
v. Srinath Moyra (supra) and Digbijoy Roy v. Shaikh Aya Rahman (supra), amount
to a recognition of that person as a tenant. Mere possession for generations at
a uniform rent or construction of permanent structure by itself may not be
conclusive proof of a permanent right as held in Kamal Kumar Dutt v. Nanda Lal
Dule (supra) but the cumulative effect of such fact coupled with several other
facts may lead to the inference of a permanent tenancy as indicated even in the
case of Satyendra Nath v. Charu Sankar (supra) on which Shri N. C. Chatterjee
relies. What, then, are the salient facts before us ? It is not known how the
earliest known tenant Shaik Manik acquired the tenancy or what the nature of
that tenancy was. The tenancy has passed from one person to another by
inheritance or by will or by transfers inter vivos. In the deeds of transfer
the transferee has been given the right to enjoy the property from generation
to generation for ever. A tank has been excavated and a pucca ghat built on the
land. Bricks have been manufactured with the earth taken from the land and the
premises have been enclosed within pucca walls. Pucca buildings have been
erected and mortgages have been executed for substantial amounts. Although
there was an enhancement of rent in 1860 that rent has continued to be paid
ever since then. Portion of the premises, namely, No. 2, Watkin's Lane, has
been used as a factory by the plaintiffs and on the other portion, namely, No.
3, Watkin's Lane, residential buildings were -erected which indicate that the
lease was for residential purposes. As already (1) 7 C.W.N. 132 (2) 17 C.W.N.
156.
(3) 40 C.W.N. 854.
(4) (1929) I.L.R. 56 Cal. 738.
939 indicated there have been many transfers
and devolutions and the landlords have accepted rent' from the transferees or
the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were
mutated in the Zamindar's Sherista.
Although in the rent receipts Dobson
continued to be shown as the recorded tenant, eventually Jones's name appears
on the rent receipts as tenant. In spite of the increase in land value and the
letting value the landlords through whom the plaintiff derives his title did
not at any time make may attempt to eject the tenant or to get any further
enhancement of rent since 1860. All these circumstances put together are
explicable only on the hypothesis of permanency of the tenure and they
irresistibly lead to the conclusion, as held by the lower Courts, that the
tenancy in question was heritable and a permanent one. The decision of
Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das
(supra) is definitely in point. In this view of the matter we hold that the
Courts below were right in dismissing the plaintiff's claim for ejectment.' In
the result this appeal must fail and we dismiss it with costs.
Appeal dismissed.
Agent for the appellant: P. K. Ghosh.
Agent for the respondent: Sukumar Ghose.
Back
