NIBARAN CHANDRA DHARA MODAK Vs. KRISTO MOHAN KUNDU

JUDGEMENT

(1.) This is a suit to recover possession of premises let for residential purposes. Notice to quit was served upon the tenant, and if the tenant was liable to be ejected after notice to quit it is not contended that the notice was not duly served according to law. The defence set up was that the tenancy was governed by the Bengal Tenancy Act; that it was of an agricultural nature, and that the tenant had acquired a permanent right of occupancy. That defence was negatived by the lower appellate Court, and it was held that the tenancy was not of an agricultural nature but one for residential purposes, and that it was, therefore, outside the ambit of the Bengal Tenancy Act, and governed by the general law. Certain facts have been found, and must be taken to have been correctly found, by the lower appellate Court. The learned Subordinate Judge in the course of his judgment stated that we come to the conclusion that the defendant's tenancy is governed by the general law that prevailed before 1882. The defendant can claim a permanent tenancy only by a contract with his landlord. The relationship (i.e., of landlord and tenant) is established by the decree filed before me. I find that the origin of the defendant's tenancy is not known. I find that it has been inherited by defendant 2 from his father. I find that it has been held for over 50 years, and that a uniform rent of Rs. 7 has been all along paid. I find further that this tenancy was taken for residential purposes. I find there is no brick-built structure of the defendant on the land, and that the structure that is there was built after objection by the plaintiff and after <JGN>Page</JGN> 2 of 5 the failure of the plaintiff in the previous suit.

(2.) It was also found or admitted that the defendant held a permanent tenure, but that such tenure was not for agricultural purposes or governed by the Bengal Tenancy Act; that before 1920 there was no structure upon the land; that there has been no transfer inter vivos during the currency of the tenancy; and that in 1920, when the defendant was proceeding to erect a building on the land, the plaintiff brought a suit for an injunction to prevent him from putting up a pucca structure on the land without the consent of the landlord. That suit was dismissed upon the ground that the structure which the defendant wa3 erecting was katcha, and not a pucca building. In that case the Court further expressed the opinion that the defendant did not possess any permanent right of occupation. I mention this last fact as part of the narrative, but for the purpose of my judgment I have not relied upon it. The question that falls for determination is whether the proper inference of law to be drawn from1 these facts is, that the tenancy is a permanent one. Now, the onus of proving that a defendant is in occupation under a tenancy which is not subject to a notice to quit is upon the tenant who sets up that his tenancy is of a permanent nature. The duty of the Court as I apprehend the law, is to take into consideration all the facts proved that are relevant for the determination of the issue, and to decide as a matter of law whether from the facts proved the legitimate inference is that the tenancy was a permanent one. The law upon this subject has been laid down by the Judicial Committee of the Privy Council in the case of Nainapillai Marakayar V/s. Ramanathan Chettiar A.I.R. 1924. P.C. 65. In the course of delivering the judgment of the Board Sir John Edge observed: It cannot now be doubted that when a tenant of lands in India in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant. In Secretary of State V/s. Luchmeswar Singh [1889] 16 Cal. 223, it was held that the onus of proving that they had a permanent right of occupancy in lands was upon the defendants who alleged it as a defence to a suit by their landlord to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus and in Seturatnam Aiyar V/s. Venhatachala Goundan A.I.R. 1920 P.C. 67 in a suit by landlords for the ejectment of the defendants from lands in a ryotwari district in Madras, the giving of notice to quit not being disputed, it was held that the onus of proving that the defendants had rights of permanent occupancy was upon them...that permanent right of occupancy can only be obtained by a tenant by custom, or by a grant from an owner of the land who happens to have power to grant such a right, or under an Act of the legislature.

(3.) In this case it is not contended that the tenant obtained a permanent right of occupancy by custom, or by an act of the legislature. It was, therefore, incumbent upon him to prove that he had obtained it by an express grant from the owner of the land. Now, how can a tenant <JGN>Page</JGN> 3 of 5 prove the existence of such a grant? If the origin of the tenure is known cadit quaestio, for then it is possible to ascertain from the terms of the agreement whether the tenancy was a permanent one or not. But where, as in this case, the origin of the tenancy is taken to be unknown, the tenant must needs prove such facts that the reasonable inference therefrom is that the tenant had been granted a permanent right of occupancy.