RAM RANBIJAYA PRASAD SINGH Vs. RAMJIVAN RAM

JUDGEMENT

(1.) These are two appeals from the decisions of the Subordinate Judge of Arrah reversing two original decrees in the view that the two non-agricultural tenancies to which they related were permanent.

(2.) Second Appeal No. 529 arises out of a suit relating to the tenancy of "3 decimals" (,o3 acre) of land in Survey Plot No. 1654 appertaining to Khata No. 330, situate in village Bhojpur Kadim, Thana Dumraon. The suit was brought by the sons and grandsons of one Gaya Ram who, in April 1930, purchased this plot under a registered kebala from Mt. Laungi, widow of one Bam Lagan Teli. Plaintiffs case was that the land, which in the Beeord of Rights of 1912 is shown as included in the ghair mazrua khata of the malik (defendant 1), was permanently settled by the landlord with Bam Lagan Teli, on an annual rent of 5 annas 6 pies, for residential purposes. Bam Lagan erected a pucca house on the plot and lived in it until he was succeeded by his widow Mt. Laungi who, in 1930, sold the property to Gaya Ram. In 1935 the landlord brought a suit for ejectment against Gaya Barn's brother Gajadhar Bam and plaintiffs 1 and 2, sons of Gaya Bam (deceased) as minors under the guardianship of Gajadhar. These plaintiffs were, however, of age at the time and had no notice of the ejectment suit of defendant 1, plaintiffs therefore claimed that they were not bound by the decree for ejectment obtained by defendant 1, and they sought recovery of possession of the 3 decimals of land. The defence was that there was no permanent settlement with Ram Lagan Teli at all, that Mt. Laungi whose possession was shown in the Record of Rights was at best a tenant-at-will, that when she left the village, the defendant was entitled to recover khas possession, and that in the suit for ejectment brought by him the present plaintiffs 1 and 2 were by mistake described as minors but were fully represented by their uncle Gajadhar Ram, with whom they were living jointly. The trial Court dismissed the plaintiffs suit on the grounds that the decision in the landlord's suit of 1935 was res judicata against them and that the tenancy of Ram Lagan was not permanent and not heritable or transferable. On appeal the Subordinate Judge differed from the trial Court on both points and passed a decree in favour of the plaintiffs for recovery of possession. He disallowed an incidental claim for the price of materials of a house demolished by defendant 1 in execution of his decree, but it is unnecessary for the purpose of this appeal to go into the details of this claim. Defendant 1 appeals.

(3.) It has been contended on behalf of the appellant that the decision of the lower appellate Court holding that Ram Lagan Teli had a permanent tenancy is wrong; and in support of this contention the learned advocate has cited Ariff V/s. Jadunath Majumdar A.I.R. 1931 P.C. 79. The lower appellate Court has inferred a permanent tenancy on the authority in Grant V/s. Robinson 5 C.L.J. 178 in which it was held that: Where the origin of a tenancy, not agricultural in nature is not known, it is held and enjoyed for a length of time, say from fifty to sixty years, substantial buildings are erected on the land let out and enjoyed uninterruptedly for that length of time by payment of uniform rent without alteration (to quote from the head note), the Courts will, in the absence of anything to the contrary, be justified in presuming that it was granted for building purposes and that the grant was of a permanent character, the question being one of inference from facts with the burden of proof on the tenant. It has however, been held by their Lordships of the Judicial Committee in Dhanna Mal V/s. Moti Sagar that the question whether a tenancy is permanent or precarious is in such oases not only a legal inference from facts, but that it is also not itself a question of fact, and could be described as a mixed question of law and fact with the warning that, in so far as it depends upon fact, the finding of the Court of first appeal must be accepted. This has been taken in Calcutta (see Kamal Kumar V/s. Nanda Lal A.I.R. 1929 Cal. 37 and also in this Court Mohammad Zaya-ud-din V/s. Sheikh Dargahan A.I.R. 1939 Pat. 448 decided by my Lord the Chief Justice and Khaja Mohammad Noor, J.) to mean that the inference of permanency can only be drawn where the facts point irresistibly to such a conclusion, and that where the facts are equally consistent with permanency or a tenancy at will, then permanency cannot be inferred. The facts found in the present case are that Ram Lagan, a non-agriculturist, took a settlement of the land for building purposes about 45 years ago and remained in possession till death, when he was succeeded by his widow, who continued $o live in the house built by Bam Lagan till it fell down, that she sold the land to Gaya Bam, and that the annual rent of 5 annas 6 pies was paid to the landlord by Ram Lagan and Mt. Laungi, but not by her transferee. The alleged permanent settlement with Ram Lagan was not supported by any registered lease, such as is required by Section 107, T.P. Act, in oases of letting for residential purposes after the passing of this Act, and the learned Subordinate Judge failed to notice that the tenancy in Grant V/s. Robinson 5 C.L.J. 178 which he applied to this case dated from before the Transfer of Property Act. Whether a tenancy came into existence before or after the passing of this Act, the landlord defendant is prima facie entitled to the possession of his ghair mazrua land subject, of course, to such right (if any) as the tenant may show to have been conferred upon him by the landlord. The right set up by the plaintiffs in the present case was the right of a permanent tenant, and there was no dispute that Ram Lagan was not an agriculturist. The permanent right alleged can only be based, as was pointed out in Ariff's case at p. 1247 of the report in A.I.R. 1931 P.C. 79. "either upon contract express or implied, or upon some statement of fact grounding an estoppel." So far as any contract is concerned, it was ruled by their Lordships of the Judicial Committee in that case that in the absence of a registered instrument there can, under Section 107, T.P. Act, be no valid contract at all. Nor can the oral evidence that the settlement was for building purposes, which has been accepted by the lower appellate Court, give rise to any estoppel preventing the landlord from denying that the tenancy was permanent. As long ago as 1878 it was decided in Prosunno Coomaree Debea V/s. Sheikh Rutton Bepary 1978. 3 Cal. 696, that it is not correct to say that: By the law of this country the right of a homestead tenant to occupy his holding permanently becomes absolute so soon as he is allowed to erect his dwelling house by his landlord, whether he holds under a verbal agreement or a written lease" and in Kamal Kumar V/s. Nanda A.I.R. 1929 Cal. 37 (already referred to), Rankin C.J. pointed out, among other general considerations of fact applicable to Indian conditions prior to the Transfer of Property Act, that: The fact that a tenancy was for residential purposes in no way involved of itself that the tenant's right to the land was to be permanent, as the land could be used for kutcha structures to be erected by the tenant.