MOHORAM SHEIKH CHAPRASAI Vs. TELAMUDDIN KHAN

JUDGEMENT

(1.) This is an appeal on behalf of the defendants in an action in ejectment. The case for the plaintiffs respodents is that the defendants who were tenants-at-will were in occupation of the disputed land, that their tenancy has been terminate by a proper notice to quit and that they nevertheless refused to vacate the land. The defendants resisted the claim Substantially on two grounds, namely, first, that, they held under a permanent lease granted to their predecessors on the 23rd May 1848; and, secondly, that if the lease was not, established, there were circumstances from which the Court could draw the inference that the tenancy in its inception was of a permanent character. The Court of first instance found in favour of the genuineness of the lease and dismissed the suit. Upon appeal, the Subordinate Jude has declined to give the defendants the benefit of the lease for two reasons. He holds, first, that it is doubtful whether the lease is genuine, and, secondly, that if it is genuine, it is not proved to be binding up in the landlords inasmuch as, on the face of it, it appears to have been executed by a person whose authority has not been established. The Subordinate Judge then proceeds to hold that, although the defendants have proved that they have been in occupation of this land for many years at a uniform rate of rent and although the property has descended from the original tenant to his daughter, these circumstances are not sufficient, to justify an inference that the tenancy in its inception was of permanent character, because the defendants have not proved that they raised substantial structures on the land. In this view, the Subordinate Judge has reversed the decision of the original Court and made a decree, for ejectment.

(2.) In support of the appeal, it has been contended that the decision of the Subordinate Judge is erroneous and on both the branches of the case reference has been made to a number of judicial decisions bearing upon the questions discussed. In our opinion, there is no room for serious controversy that the decision of the Subordinate Judge cannot be supported.

(3.) In so far as the first branch of the case is concerned, as we have already stated, the Subordinate Judge has not explicitly found that the lease is not genuine. He suspects its genuineness and does not come to any specific finding; but he held that it was not binding upon the landlords, because the authority of the executant was not proved. This view of the Subordinate Judge is clearly erroneous. On the authority of the decision in Ubilock Rat v. Dallied Rai 3 C. 557 and Uggrakant Chowdhuri v. Harro Chunder Shickdar 6 C. 209 the Subordinate Judge has held that the provisions of Section 90 of the Indian Evidence Act merely establish that the document was executed by the persons whose signatures it purports to bear; bat that cannot and does not prove the authority of the executants to bind the landlord. This view is unquestionably sound. But it must be remembered that the landlords did not suggest in either of the Courts below that the leasa was not binding upon them, because it had been executed on behalf of their predecessors by a person who had no authority to bind them in their transaction. The question was not raised for very obvious reasons. No doubt, the lease was originally granted on behalf of the landlords who were at the time infants; but upon attainment of majority, they ratified the transaction, recognised the predecessor of the defendants as their tenant and for many years accepted rent from him at the rate mentioned in the lease. Under these circumstances, it was not open to them to repudiate the transaction as wholly unauthorised. No question, therefore, arises in this case as to the authority of the executants to bind the landlords. In this view, it would be necessary for us to remand the case to the Subordinate Judge for a specific finding upon the question of the genuineness of the lease. It is needles, however, to adopt this course, because we are of opinion that the appellants are entitled to succeed upon the second branch of the case.