SHAIKH DARGAHAN Vs. HAFIZ MOHAMMAD ZAYAUDDIN

JUDGEMENT

(1.) This appeal arises out of an action in ejectment. The defence was that the defendant-tenants had a permanent right in the land. The lower Appellate Court reversing the decision of the trial Court has held that the tenancy was not a permanent one and has decreed the plaintiff's suit. I must confess that I find very considerable difficulty in deciding the case because apart from the authority of the Judicial Committee in Dhanna Mal V/s. Moti Sagar should have thought that the inference to be drawn from the facts in this case was an inference of fact and not an inference of law. But their Lordships of the Judicial Committee of the Privy Council have held otherwise. I say I should have thought it was a question of fact, because what the Courts below were trying to determine in this case was what happened between the landlord and the tenants at the time the tenancy came into existence. To put it shortly, the Courts below were concerned with the question whether the landlord had granted to the tenants a permanent right or only a temporary right in the land at most it would appear to me to be a question of mixed fact and law as to what inference one could draw from the subsequent acts of the parties about what the tenancy was. In Kamal Kumar V/s. Nanda Lal . Sir George Rankin found himself in the same difficulty, and I can only say that the difficulty that I find in this case is best expressed in the words of the learned Chief Justice as reported at page 743 of the Report. But he recognized that he was bound by the decision of their Lordships of the Judicial Committee in Dhanna Mal V/s. Moti Sagar , to which I have already referred.

(2.) In Kamal Kumar V/s. Nanda Lal , the Chief Justice and Mukerji, J. held that there was no permanent right in the tenant. The facts proved in that case were that the origin of the tenancy was unknown; that the tenants had held the land throughout for residential purposes; that they had paid the same rate of rent for about 14 years; that the tenant was a labourer; that the land was occupied by mud-walled huts some of which were very old and some of them had been erected by the tenant himself since his father's death about 30 odd years before the action. In the case before me, the proved or admitted facts are that the origin of the tenancy was unknown; that the family had occupied the land for at least 100 years; that the land had been used for residential purposes; that no rent had been paid and that the land had been occupied by a building consisting of 12 rooms and three court-yards; walls were of mud and the roofs were thatched. From those facts as I have said the Judge in the Court below ha3 declined to draw the inference that the tenancy was a permanent one, facts which are not substantially different from those in Kamal Kumar V/s. Nanda Lal .

(3.) I do not propose to refer to all the authorities which have been quoted in this Court. Each case depends very largely upon its circumstances; in one, certain facts may have been present and in the other they were not, and it is therefore difficult to lay down as a universal rule that the inference is one of law in all cases. In William M. Grant V/s. Mrs. Robinson (1907) 11 C.W.N. 242, Sir Francis Maclean held that from the facts proved in that case the Courts below were justified in drawing the inference that the tenancy was a permanent one.