ABDUL HAKIM KHAN CHOWDHURY Vs. ELAHI BAKSHA SAHA

JUDGEMENT

(1.) This is an appeal by the plaintiffs and the question raised in this appeal is whether upon the facts found by the lower Appellate Court, the presumption, that the tenancy is a permanent one, is correct in law. The Munsif held that the presumption did not arise but the Subordinate Judge has held that it did. The facts shortly stated are these: Plaintiffs are the owners of a kaimi mokarari jote and the land in suit is a piece of bastu land situated within the municipality of the town of Rajshahi and was let out to Golab Saha, the father of the defendant, about 44 or 45 years ago by the mother of the plaintiffs, apparently for dwelling purposes-Plaintiffs served a notice to quit on the defendants-and after the expiry of the term brings this suit for khas possession of the lands, giving the defendants the-option to remove the houses standing thereon, which the plaintiffs allege are of an unsubstantial character. The defence of the defendants inter alia was to-quote the words of the learned Munsif "that the defendants and their predecessors-in-interest having-resided on the disputed land for a long time by erecting pucca and kutcha structures on payment of a uniform rate of rent and the tenancy having been treated as heritable, the jote in suit is a kaimi mourashi mokarari one".

(2.) The facts found by the Munsif were: (i) That the tenancy was 44 or 45 years old and its-origin was not unknown. (ii) That the rent paid was uniformly Rs. 5-10 per year. (iii) That there was one case of succession from Golab to the defendant. (iv) "That Golab Shaba father of the defendant, built a house with mud walls and tiled roof, over which there were thatched chains. Golab also constructed pucca staircase for the house and a pucca gateway. This house, which has been described as a marotaghar by defendants witnesses, fell down in the great earthquake of 1304 B.S. The pucca gate was also destroyed by the earthquake. At present only the pucca steps of the marotaghar exist. It is also established by the evidence of P. W. No. 4 that the defendants constructed a pucca privy on the land 7 or 8 years ago and that the privy is still in existence. The question is whether the structures raised by the defendants and their father can be called substantial structures. I am of opinion that the house built by Golab Shaba cannot be called a substantial structure as the roof was not a pucca one but was covered with mud and required the protection of thatched chalas.

(3.) On these facts the Munsif held that the defendants have failed to establish that the lease was a permanent one. The Munsif further pointed out that there was no allegation by the defendants that the lease was a permanent one at its inception.