BEJOY GOPAL MUKHERJI Vs. PRATUL CHANDRA GHOSE

JUDGEMENT

(1.) This is an appeal by the plaintiff in an ejectment suit. His case was that defendant 1 Pratul Chandra Ghose was a Ticca tenant of premises Nos. 2 and 3, Watkin's Lane, Howrah, comprising an area of 1 Bigha 19 Cottahs of land on a rent of Rs. 76 per annum under the landlords Kumar Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, pro forma defendanh 2 and 3, that the plaintiff took a Mourashi Mokarari lease from these landlords on 23-9-1937 and thereby became the immediate landlord of the said defendant and that the tenancy was determined by a notice to quit dated 7-10-1937. The trial Court amongst other 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.

(2.) Relying on the decision of the Privy Council in Dhanna Mal v. Moti Sagar, A. I. R. 1927 P. C. 102 (A), 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 Ex. P/11, being a conveyance executed in 1226 B.S. :1819-1820 by Sheikh Manik and another infavour 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. 4-8-0 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 Ex. P/10 dated 29-10-1855. 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 rent-paying garden land. The consideration for the sale was Rs. 1,000. The following provisions of the sale deed are of importance:

(3.) 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 Ex. 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 under 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, A. I. R. 1940 P. C. 192 (B). The principle of that decision was applied also to non-agricultural tenancies in Jogendra Krishna v. Sm. Subashini Dassi, A. I. R. 1941 Cal. 541 (c). In Probhas Chandra v. Debendra Nath, 43 Cal W. N. 828 (D) also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained.