MT BATULAN Vs. SAYID MOHAMMAD NAEEM

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of land in which, according to the plaintiff, his predecessor-in-title and other maliks had allowed the defendant's father to build a temporary shed for residential purposes on condition that he would cook food for the maliks on ceremonial occasions and render other menial services on wages. Plaintiff said that the defendant had stopped rendering services and then after a service of notice to quit, this suit was brought for recovery of possession. The defence was that the land had been settled with the ancestors of the defendant for permanent residential purposes more than a hundred years ago, that the tenant had put up substantial structures worth more than Rupees 4000 on the land, that there had been several successions, and that while the tenant had put up the substantial structures in the honest belief that he had a permanent right, the landlords, knowing that the ancestor of the defendant was acting under such belief, had stood by and allowed the expensive structures to be put up.

(2.) The trial Court found that the land had been settled with defendant's father in 1317 Fasli on the conditions alleged by the plaintiff, and that even if the structures, which the learned Munsif found were not substantial, had been put up with the knowledge of the plaintiff, the mere fact that the landlord stood by and acquiesced would not suffice to raise any equitable estoppel against him. The suit was accordingly decreed; and defendant appealed to the District Judge. The appeal was heard by a Subordinate Judge, who concurred in the findings of the learned Munsif.

(3.) The first point urged before me is that as admittedly the grant was for residential purposes, the Court should have started with a presumption of permanency; and in support of this contention, Sir George Rankin's remarks in Debendra Nath V/s. Pashupati Nath have been referred to. The learned Chief Justice said that upon the question whether a tenancy is permanent or not, the law of India attaches a good deal of importance to the question whether the tenancy was for residential purposes apart altogether from the question whether substantial structures were built upon the land and that in this country the old-fashioned notion at all events was that a place which was intended as a family home was very likely to be intended to be held in permanent right. These observations however can have no application to a tenancy created so recently as 1317, and that too on condition of the tenant performing menial services.