MADHUSUDHAN SWAIN Vs. DURGA PRASAD BHAGAT

JUDGEMENT

(1.) This is an appeal by the plaintiff who sued to eject the defendants tenants from homestead land. The point on which the decision turned was whether the defendants were tenants, at will or had a permanent tenancy. The origin of the tenancy of the defendants is unknown, but it has been found to have had its inception before the passing of the Transfer of Property Act. The Courts below held that, in the circumstances, a pre. sumption arose that the original grant was intended to be a permanent one and that the defendants could not be ejected. It is contended that to raise a presumption of permanent tenancy in favour of the defendants will offend against legal principles as the plaintiff himself is a kashmahal tenant holding for a term of years though with some rights in the matter of renewal on expiry and it is said that the plaintiff could not create or could not be presumed to create an interest higher than his own.

(2.) In support of this assertion of principle, reference is made to the Privy Council decision in Nainapillai Marakayar V/s. Ramanathan Chettiar A.I.R. 1921 PC 65. That was a case of debutter property and of an alienation by the manager or trustee. That is not quite on all fours with the creation of a tenancy by the plaintiff whose action at the worst could not prejudice anybody but himself, that is any one whose interest he was bound by trust to protect.

(3.) But I may point out that in Munshi Abdul Kadir Khan Vs. Munshi Abdul Latif Khan (1981) 1 Cutt L T 43 a grant by a khasmahal tenant of land within his lease was held to create permanent rights in that land and therefore the contention that a khasmahal tenant cannot create permanent rights of tenancy within his holding does not appear to be supportable. As to the general principles on which the Courts are to determine whether to raise the presumption of a lost grant and of a permanent tenancy, reference has been made to Abdul Hakim Khan V/s. Elahi Baksha Sha A.I.R. 1925 Cal 309 where after a lengthy survey of the authorities the principles are thus stated: An analysis of the cases cited before, in which presumption of permanency was made, shows that the following elements existed in these cases, viz. first the origin of a tenancy for residential purpose must be unknown; secondly, existence of permanent pucca buildings on the lands built long before any controversy arises and that to the knowledge of the landlord; thirdly, uniform payment of rent; fourthly, recognition of successions and transfer by the landlord.