HAFIZ MUHAMMAD ZAYAUDDIN Vs. SHAIKH DARGAHAN

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Wort J. in a second appeal reversing a decree of the lower Appellate Court in favour of the plaintiff. The suit out of which this appeal, arises was brought by the plaintiff to recover possession of a small plot of land, 11 acres in extent situate in the village of Shakranwan. According to the plaintiffs, the land had been originally let to the defendants predecessors upon the terms that it should be given up to the plaintiff's predecessors when the latter required it. In short, the plaintiff alleged a tenancy at the will o? the landlord. According to the plaintiff's case, this tenancy had been determined by notice and accordingly possession was claimed. The defence was that the tenancy was a permanent one, and therefore the plaintiff had no right to eject the tenant. The trial Court held that the tenancy was permanent and dismissed the plaintiff's claim: but on appeal the lower Appellate Court held that the tenancy was a tenancy-at-will and accordingly decreed the plaintiff's claim. In second appeal, Wort J. held that the tenancy was a permanent one and accordingly he reversed the decree of the lower Appellate Court and restored the decree of the learned Munsif dismissing the claim in its entirety.

(2.) The origin of this tenancy is unknown. The lower Appellate Court has found that the defendants predecessors have been in possession of this land for over a hundred years and had built upon it a substantial structure consisting of mud walls and tiled roofs. This structure is found to be very old and must have been in existence for very many years. It is also found that the possession of this land together with the structure thereon has been held by the de-fondants family generation after generation without let or hindrance. No rent has ever been paid to the plaintiff and his predecessors for the Baid land and the latter has, until the present proceedings, made no attempt to eject the defendants or their predecessors. From these facts "Wort J. held that the inference to be drawn was that the tenancy was a permanent one. It has been argued before us that these facts do not support an inference of a permanent tenancy. It is clear that where a tenant alleges that his interest is a permanent one the lonus lies upon him to establish such an interest. This is clearly laid down in Kamal Kumar Datta V/s. Nanda Lal Rankin C. J. observed: When a person claims to hold land as a tenant under a landlord it is for him to prove the existence, the nature and the extent of the interest which the owner of the full right has granted to him.

(3.) In the present case it is common ground that the defendants are tenants under the plaintiff, and it is for them to show the nature and the extent of the interest which they hold. This is conceded by Mr. Baldeva Sabay, who appeared for the defendants. As I have stated, the origin of this tenancy is unknown and the nature and the extent of the interest must be inferred from the facts which have been proyed in this case. The inference to be drawn from the proved facts is not a question of fact but, on the contrary, is a question of law. This has been laid down by their Lordships of the Privy Council in Dhanna Mal V/s. Moti Sagar Lord Blanesburgh observed: They are -well aware moreover that questions of law and of fact are often difficult to disentangle. It is clear however that the proper effect of a proved fact is a question of law, and the question whether a tenancy is permanent or precarious seems to them, in a case like the present, to he a, legal inference from facts and not itself a question of fact. The High Court has described the question here as a mixed question of law and fact, a phrase not unhappy if it catties with it the warning that in so far as it depends upon fact, the finding of the Court on first appeal must be accepted. On these lines, which the High Court appears strictly to have observed, the appeal to that Court was competent, and it was in their Lordships judgment open to the learned Judges there to entertain it as they did.