GOVINDA PROSAD SHAH Vs. SREEMUTTY CHARUSILA DASSI

JUDGEMENT

(1.) This is an appeal by the plaintiff from the decree of Pankridge, J., dismissing his suit. The premises, No. 187 Darmahatta Street, form part of the estate of the late Akhoy Kumar Ghose of which the defendant is the administratix. From 1910 these premises were let to the firm of Kalicharan Udit Narayan as monthly tenants. These monthly tenants having erected certain pucca buildings thereon, assigned or conveyed to the plaintiff their interest in the premises and in the structures by a deed dated 8 December 1921. In December 1927, the defendant having brought an ejectment suit, obtained possession of the premises in execution, but the decree in ejectment was, by consent, vacated on 3 February 1928 by an order passed in appeal therefrom.

(2.) In connexion with these proceedings the present plaintiff, on 21 December 1927, had by his solicitors written denying the right of the landlady to the structures. Although the decree had been vacated, the plaintiff never got back possession; it appears that another tenant, one Harnandan, had been let into possession in the meanwhile and remained in possession till 1932. The landlady however on 12 March 1928, gave a valid notice to quit and the tenancy determined with effect from 13 April 1928. The plaintiff brought the present suit on 10th December 1930 to recover possession of the buildings and structures erected by his predecessors in-title on the land, or, in the alternative, the value thereof, with other reliefs. Two issues were contested before the learned Judge and before us. The first is an issue of fact. The plaintiff says that when he received the notice to quit in April 1928, it was served on him personally, that he then claimed the right to remove the structures, that he was referred to the landlady's manager, Jotindra Mohan Mitter, and made his claim to be permitted to remove the structures, but his claim was refused. The learned Judge has disbelieved this story which depends entirely on the oral testimony of the plaintiff. The interview is denied by Jotindra Mohan Mitter and the learned Judge considers that the correspondence of December 1927 shows that if any claim had been refused a solicitor's letter would have been sure to follow. Mr. A.K. Roy for the plaintiff-appellant has taken us through the evidence in an endeavour to persuade us that the learned Judge's finding of fact was wrong. I am however of opinion that no exception can be taken to it and that it is quite impossible for the Court of appeal to find that the plaintiff on this issue has proved his case. There is a direct conflict of oral testimony between the plaintiff and the manager and there is such corroboration of the plaintiff's story as would entitle the Court of appeal to differ from the opinion of the learned Judge who saw the witnesses.

(3.) The second issue is one of law. Assuming that the plaintiff's tenancy determined in April 1928, can the plaintiff, in this suit of 10 December 1930, assert a claim to recovery of possession of the structures, cr to the value thereof? Before the Transfer of Property Act of 1882, the rule of law to be applied as between landlord and tenant to structures built by the tenant upon the lands demised was more open to dispute as regards property in Calcutta than as regards property in the mofussil. In Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 it was held, upon a consideration of Hindu and Mahomedan law, that the English maxim quicquid plantatur was not in accordance with the usages and customs of the country, and it was accordingly laid down as a general rule that a tenant, or indeed any one except a mere trespasser, is entitled if he has erected buildings on the land, to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.