MUSAMMAT AFZAL-UN-NISSA Vs. ABDUL KARIM

JUDGEMENT

(1.) The predecessors-in-title of the appellant in these consolidated appeals raised as plaintiffs three suits of ejectment in respect of three parcels of land held by the respondents, respectively. Questions as to sufficiency of notice were raised, but need not be alluded to. The real question at issue is raised by the defence of each of the respondents, which has been upheld by the Courts below, viz., that they are permanent tenants at a fixed rent which has admittedly been paid since the beginning of the tenancy, and as such cannot be evicted on the allegation that they are tenants-at-will.

(2.) The parcels of land in question are situated in a suburb of Delhi and are covered by buildings of masonry occupied by the respondents. It is admitted that the respondents predecessors-in-title were invited to occupy the land for building purposes by the predecessors of the appellant in about the year 1859. No document showing the terms of occupancy is extant, nor is there any reliable oral evidence of what passed at that time. But the facts found, and as to which, indeed, there is no dispute, are that from that time onwards a uniform and fixed rent has been paid that in some of the receipts given by the landlord the term "permanent" as applied to the rents is used, that the respondents and their predecessors-in- title have erected substantial buildings without objection on the part of the landlord, that they have dealt with their properties by way of sale and mortgage, and that the properties have passed by succession. In these circumstances the learned judges of the Courts below have held that the case is in substantially the same position as the case of Gaspersz v. Kader Nath Sarbadhikari (1901) I.L.R. 28 Cal. 738. The head-note of that ease, which accurately represents what is decided, is in these terms:- Although the origin of a tenancy may not be known, yet if there is proved the fact of long possession of the tenure by the tenants and their ancestors, the fact of the landlord having permitted them to build a pucca house upon it, the fact of the house having been there for a very considerable time, of it having been added to by successive tenants, and of the tenure having from time to time been transferred by succession and purchase, in which the landlord acquiesced or of which he had knowledge, a Court is justified in presuming that the tenure is of a permanent nature.

(3.) The learned counsel for the appellant was constrained to admit that, if this case had been in Bengal, he could not contend that the judgment was not right, but argued that, though the inference was properly drawn in Bengal, it could not be properly drawn in the Punjab, on the ground that in Bengal there was a permanent settlement, whereas in the Punjab there was not. Now it is clear that an inference as to a fact to be drawn from facts depends on a mental process which is the same all the world over. The argument could, therefore, only be good if it could be shown that a permanent tenancy was a legal impossibility in the Punjab. Counsel candidly admitted that he had no direct authority for the proposition, but argued that it followed from the difference of position as to the permanent settlement. It is not clear to their Lordships why the position in a question with the government should alter the possibility of a bargain as between landlord and tenant, but it is not necessary to give any opinion on the point, and it would be inexpedient to do so in face of the fact that the point was never taken in the pleadings and was consequently not urged before nor noticed by the learned judges in the Courts below; it is, therefore, out of the question to raise it before this Board.