NARENDRA NATH MANDAL Vs. SANNYASI CHARAN DAS

JUDGEMENT

(1.) These four appeals arise out of a decision of the learned President of the Tribunal under the Calcutta Improvement Act with regard to the compensation awarded for acquisition of land in which there was a dispute between the landlords and the tenants as regards the apportionment of the compensation. The lands were acquired out of two promises: 3 Chittaks 9 Sq.ft. out of premises No. 6 Circular Garden Reach Road and 3 Chittaks out of No. 3 Circular Garden Reach Road. The landlords are two sets of persons with regard to each property, one sot representing the secular interest in a half-share and the other representing the debutter interest in the other half-share of both the properties. The tenants held under both sets of landlords. It is not necessary in the appeal to state the nature of the proceedings between the two sets of landlords. They have adjusted their differences and it is now admitted) by them that one-half of the property is debutter and the other half secular. The dispute is between the interest of the. landlords and tenants, the latter claiming that they had a permanent tenancy right in the lands in question and that compensation should be awarded to them from that point of view. The learned President held that the tenants have succeeded in establishing their claim to a permanent right and apportioned then compensation according to that view. The landlords have preferred separate appeals two appeals by the two sets of landlords in each case and their contention is that the tenants have not been, able to establish any permanent interest in the premises in question, The struggle-between the landlords and the tenants is mainly that with regard to the question about the title to the land. The amount of compensation is very small and it has not been argued before us that the compensation should be apportioned in any manner different from what the Collector did on. the basis that the tenants had no permanent right or what the learned President has done on the basis that the tenants had a permanent right to the land in question. I shall therefore confine my judgment to the question whether the tenants have a permanent right in the two premises, which are on the opposite side of a passage leading to the Circular Garden Reach Road.

(2.) Appeals Nos. 15 and 16 are by-claimant 4 who had been appointed receiver to the secular property and he represents the original claimant 1. Claimant 5 has been appointed by the Court as receiver of the debutter estate of the Idol Sri Sri Gopal Jiu Thakur, and he represents the claimants who, made their claim as shebaits of the Thakur. The respondents in all the four appeals are represented by claimant 3. The case of the appellants is that the tenants held as tenants from month to month. It appears from the evidence on the record that in the books of the landlord premises No. 3 stands in the name of one Nabin and with regard to premises No. 6 the name of Parikshit, the. father of Nabin, appears as the tenant. The rent of No. 3 is Rs. 45 per year, and the area is said to be 2 cottas, 2 chitaks, that of No. 6 is Rs. 54 and the area, according to the respondents case, is 2 cottas. The appellants however contend that the area of the tenancy is only 1 cotta 2 chitaks. In my view, nothing much depends upon the dispute as regards the area of the lands. It was no doubt contended on behalf of the appellants that it is of some importance as showing a probable variation in the rent, because when the tenants say that the area of the land was greater than what is now found by actual measurement, the contention of the learned advocate is that the present rate of rent is charged on the present area, and if the original tenancy consisted of a larger area, then it follows that the rate of rent per cotta must have been increased. That seems to me to be rather a speculative argument because the tenant may say that the area is really greater than the actual area held by him, and, in my opinion, no inference can be drawn from the fact that the tenancy was alleged to consist of a larger area than what it is actually found to boon measurement. Having disposed of this minor point, the main question remains to be dealt with.

(3.) The learned President of the Tribunal has hold upon the facts found by him that the reasonable inference is that both the tenancies wore at their inception of a permanent nature. It should be stated here that there is no reason to doubt the proposition that the inference from the facts alleged and found as to whether a certain tenancy is permanent or not is an inference of law and not one of fact. This has been the law as under-Wood all along and has been finally laid down by their Lordships of the Judicial Committee in the case of Dhanna Mal V/s. Moti Sagar . The learned President has referred to a number of cases in his dg in which the question whether a certain tenancy was of a permanent nature or not was discussed. I shall deal with some of them later on. But it is necessary first to discuss the facts found by the learned President as to whether those facts are supported by the evidence in this case. As was observed by their Lordships of the Privy Council in the case of Chidambara Sivaprakasa V/s. Veerama Reddi A.I.R. 1922 P.C. 292 that in such cases as these, each case must be dealt with on its own facts, special regard being had to the evidence and the circumstances therein, and it is necessary therefore to go into the facts first and to find what is the legitimate inference from these facts. The learned President found, first, that the origin of the tenancy is not known and, secondly, that the existence of the tenancy has been traced back for a period of at least 90 years. Those two findings may be taken together. The documentary evidence as to this tenancy apart from the rent-receipts produced by the tenants which will be dealt with separately are only two. Ex. 4, dated 30 September 1891, is a deed of partition between the grandfather of claimant 3, Nabin and his brother, This document has been admitted by the learned President under Section 18 (a), Evidence Act, as showing a transaction by which a right was claimed. In this document there was a recital in para. 9 that the lands in schedule kha were held by them in mukarrari kayomi interest.