HUKUM CHAND Vs. SANSAR CHAND

JUDGEMENT

(1.) This is an appeal against the judgment of a learned Judge of the Delhi High Court (Himachal Bench). Tatachari, J., allowing a second appeal setting aside the judgments and decrees of the Courts below and decreeing the plaintiffs' suit by granting a declaration in the following terms:-

(2.) Diwana (since deceased and now represented by Sansar Chand, respondent No. 1), and Murli Dhar, respondent No. 2, sons of Chaudhary had brought their suit for declaration of their rights in respect of Khasra Nos. 141 and 146 by reason of their alleged continuous possession over these plots since the time of their ancestors and the construction of a house in plot No. 141 and kiln in plot No. 146. The plaintiffs had set up rights of ownership on the ground that they did not recognize the rights of any landlord by either ever paving any rent or rendering any service since the time of their ancestors, and in the alternative, they had claimed permanent tenancy rights. The defendants appellants had resisted the claim on the ground that the plaintiffs were merely tenants-at-will liable to pay rent in cash and also in kind and to be evicted at will. It appears, from the judgment of the first appellate Court, that the learned counsel for both sides had admitted that the findings of the trial Court, that the plaintiffs were owners of the construction but not of the site or land, were correct. This means that the plaintiffs gave up the case of ownership and adopted the alternative case of permanent tenancy which, however, was repelled by the trial and the first appellant Courts on the ground that facts proved were not sufficient to warrant such an inference.

(3.) As the question whether, on facts found, a tenancy can be found to be permanent in nature is a question of law, as held in Bejov Gopal Mukherji v. Pratul Chandra Ghose. AIR 1953 SC 153. Tatachari J., went into the question whether facts found raised an inference of permanent tenancy in favour of the plaintiffs respondents and concluded that a presumption of such a tenancy, which had not been rebutted, arose from the following facts:-Firstly, although the origin of the lease or grant was not known, it was clear that the grant was made in the tune of the forefathers of the plaintiffs. Secondly, the land in dispute had devolved from generation to generation in the family of the plaintiffs by inheritance without any attempt to evict the plaintiffs or their ancestors (the unrebutted evidence of the plaintiffs had established succession at least thrice). Thirdly, as was stated in paragraph 5 of the written-statement, a house was constructed in or about 1905 by the plaintiffs or by their predecessors-in-interest, but, it was substituted by a hut when it fell down in an earthquake. The structure shown to be now existing according to the plaintiffs' evidence, was a double-storeyed thatch- roofed house on Khasra No. 141. Fourthly, there has been, from the time of the forefathers of the plaintiffs, a kiln on Khasra No. 146. Fifthly, the defendants' own witnesses had given evidence that the plaintiffs were Opahu tenants on payment of Rs. 5/-per annum together with earthen wares manufactured by the plaintiffs as rent in kind.