NAND RAM Vs. HAKIM SARAJ HUSSAIN KHAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for ejectment, The plaintiff- respondent claimed to be the owner of the site of a house which was in possession of the appellant at the time of the institution of the suit. He alleged that the site was originally let to one Abdul Ghani at a monthly rent of 2/6 and that one of the terms of the lease was that Abdul Ghani could be ejected on payment by the landlord of the value of the materials of the house which he was entitled to build under the lease. The plaintiff went on to allege that Abdul : Ghani continued in possession and that i after his death his heirs transferred the materials of the house to one Badlu from whom the same were purchased by the appellant under a deed dated 17 June 1921. The plaintiff gave a notice to quit, but the defendant refused to vacate the site by removing the materials therefrom. The defence was a denial of the plaintiff's right in toto.

(2.) The lower Court has found on evidence that the plaintiff-respondent has satisfactorily established his proprietary right to the site." Another question which the lower Appellate Court had to consider was whether the defendant and his predecessors were in occupation of the site as plaintiff's tenants. It has again found on evidence that the land was let to Abdul Ghani as alleged by the plaintiff though no written lease is forthcoming. Having arrived at these two findings, the lower Appellate Court addressed itself to the question whether Abdul Ghani and those who stepped into his shoes should be considered to be permanent tenants. It was contended on behalf of the defendant that as the origin of the tenancy was admittedly a building lease, the Court should presume the permanent character of such tenancy. The lower Appellate Court referred to several circumstances from which it inferred that the tenancy was not permanent. It referred in this connexion to the terms of the sale deed in favour of the appellant which purports to be one in respect of the materials of the house. The lower Appellate Court argued from that fact that the right of occupation of the site has not been transferred and the permanent character of the tenancy is therefore negatived.

(3.) In second appeal it is argued by learned Counsel for the appellant that there is a presumption that a lease for building purposes is permanent and that such presumption arises in the present case. Reliance is placed upon the decision of a Division Bench of this Court in Kanhaiya Lal V/s. Abdullah reported in , in which there is a passing remark to the effect that there is a pre. Gumption of law where a permanent build tog has been erected that the tenancy is permanent. The judgment does not show when the house had been constructed in that case. There was nothing to show that the site had been let for building purposes after the passing of the Transfer of Property Act. We emphasise this fact as, in our opinion, there is a material distinction between cases governed by the Transfer of Property Act and those which are not governed by it. Section 2(c), T.P. Act, excludes the application of that Act to any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.