1. This is a reference under Section 98, Clause (3), Civil Procedure Code, and Clause 36 of the Letters Patent, on a difference of opinion between Patkar and Barlee JJ., in First Appeal No. 421 of 1926.
2. The land in dispute is the Ahmedabad City Survey No. 466. Both the learned Judges agreed that it was Government land, which was leased to the predecessor-in-title of the plaintiffs-appellants. The Government records, which would have furnished a decisive proof as to the term of the tenure, were destroyed in the riots in Ahmedabad in 1921, and in regard to this term and the burden of proof the learned Judges differ, Mr. Justice Patkar holding that the onus is on the defendant-respondent, the Secretary of State, to prove that the term has ended and that he can impose fresh terms, and Mr. Justice Barlee holding that the burden is on the plaintiffs-appellants and that the term of ninety-nine years from 1824 has ended. The original case for the appellants that it was their own land has been held by both the learned Judges not to be proved and need not, therefore, be considered. The questions formulated are:-
(1) Whether the burden of proof is on the plaintiffs to show that they are tenants for more than ninety-nine years of S. No. 466, and therefore the decree of the lower Court is correct? or,
(2) Whether the burden of proof is on the defendant, the Secretary of State, to show that the period of the lease of S. No 466 has expired, and if so, whether he has satisfied it, or, whether the case should be sent down for a finding on the issue as to whether the period of the lease of S. No. 466 has expired, or any other order should be made in this appeal.
3. Each side has adduced certain evidence, meagre it may be, but evidence nevertheless. In the absence of the original record or of the production of the lease by the appellants, the lessees, it is, therefore, a matter of inference on the evidence and probabilities rather than, strictly speaking, a matter of the burden of proof, if I may say so, with respect. The case really turns on three documents, two maps Exhibits 49 and 59 produced by the plaintiffs-appellants, and the extract from a register Exhibit 64 produced by the respondent. It is common ground that no payment of annual rent has been made. On this evidence, the facts in favour of the appellants are as follows: The definite period for which survey No. 466 was leased is not expressly to be found in any of the documents. The land 466 in suit is to the south of the smaller strip 619, also leased to the original lessee of survey No. 466, and immediately bounded on the north by the city survey No 593, which belongs to the same owner. All the three survey numbers have been at least for the last forty years covered by substantial buildings without objections on the respondent's part. The map Exhibit 50 of survey No. 593 describes the southern boundary of 519 adjoining, viz., 466 as 'Land sold under a patta to Nana Ambaram by Government', the words being vechan patti. On these facts, the appellants ask the Court to infer that the land had been leased either permanently or for an indefinite period, so that, Government has no right to evict or to ask for rent or at the most for more than a moderate and reasonable rent.
4. The facts on which the respondent relies are as follows: It appears from survey register Exhibit 64 that the small No. 619 was included in the survey No. 466, so that both were apparently leased out at the same time. Survey No. 619 is stated in the map, Exhibit 50, to have 'been given by Government to Gagal Ambaram on a ninety-nine years' patta'. There is no evidence that the lease was for a period which was permanent or indefinite or for more than ninety-nine years either in respect of survey No. 466 or in respect of any adjacent survey numbers. Therefore, it is contended for the respondent that the period of survey No. 466 is, as in the case of survey No. 619, ninety-nine years from the period stated in the survey register, Exhibit 64, viz., October 28, 1824.''
5. In regard to the onus, it is argued for the appellants, particularly by reason of the words vechan patti and the fact of substantial buildings as well as the non-payment of annual rent, that the onus is on the respondent. It is argued for the respondent that once it is found that the land is leased, the onus of proving the term and other details is on the lessee who is responsible for preserving the original lease and for producing it, and he cannot benefit by his own inability to do so. In regard to the onus, ordinarily the lessee must prove that he is entitled to hold the land of the lessor. It is true that 'when any land is let out for building purposes for no fixed period there is a presumption in favour of the tenancy being permanent': Navalram v. Javerilal (1905) 7 Bom. L.R. 401 The mere fact of a tenancy for eighty years at a low and uniform rental does not shift the onus of permanent tenancy from the lessee on to the lessor: Secretary of State for India v. Maharajah Luchmeswar Singh (1888) L.R. 18 IndAp 6 and failing such proof the lessor is entitled to resume possession. It is not necessary to consider cases where the origin of the tenancy is not known. In such cases, a 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, which has existed for a very considerable time with the addition of successive tenants and transfer or tenancy by purchase may justify an inference that the tenure is permanent: Caspersz v. Kader Nath Sarbadhikari I.L.R. (1901) Cal. 738 On the whole, speaking broadly, the onus of proof of the permanent tenancy or right to hold without disturbance is on the tenant: Nainapillai Marakayar v. Ramanathan Cheltiar The cases where such tenancy can be inferred and others where it cannot have been exhaustively considered in Abdul Hakim Khan Chowdhury v. Elahi Baksha Saha I.L.R. (1924) Cal. 43 and the latest pronouncement of their Lordships of the Privy Council is to be found in Subramanya Chettiyar v. Subramanya Mudaliyar : (1929)31BOMLR830 , where their Lordships held:-
Permanence is not a universal and integral incident of an under-ryot's holding. Permanent occupancy rights, if claimed, must be established by proving, inter alia, custom, contract or a title. In the absence of proof of custom or j contract, mere undisturbed possession for a long period at a more or less uniform rent, does not establish the acquisition of permanent rights of occupancy.
6. In the present case, there is no reason to infer that the tenancy was for an indefinite period. It is equally difficult to infer that it was permanent. Its origin was not lost in antiquity. With regard to survey No. 486 there is the express evidence, Exhibit 64, that it began in 1824, and in regard to the smaller number 619 in eluded in it, it appears from Exhibit 50 that the term was ninety-nine years. From the words vechan patti as well as from the nonpayment of rent, it is reasonable to infer that the rent was commuted for a lump sum at the very commencement of the tenancy. It is again a matter of common occurrence that, with a lease of ninety-nine years, whether from a private landlord and much more from Government which is supposed, rightly or wrongly, not to exercise arbitrarily the right of enhancement, buildings are erected. Substantial buildings, therefore, do not justify an inference of a permanent lease. The lease is the title of the lessee, and he is, therefore, responsible for preserving it and for producing it to substantite his right to possession. Its loss does not entitle him to an inference in his own favour.
7. For these reasons my answer to the questions is that the burden of proof is on the plaintiffs to show that they were tenants for more than ninety-nine years of the survey No. 466, and not on the defendant to show that the period of the lease of survey No. 463 has expired. I further hold, on the evidence such as it is and the probabilities, that the period of. the lease of survey No. 466 was ninety-nine years from 1824, and accordingly. I agree with the trial Court and the view of Mr. Justice Barlee. All the Courts have expressed a hope that any enhancement by Government should be reasonable and not exorbitant. With that expression of opinion I entirely agree. Further than this the Courts cannot, in my opinion, go.
8. I would confirm the decree of the lower Court and dismiss the appeal.
9. In regards to costs, the loss of the original record on the part of Government and of the original lease on the part of the appellants is unfortunate. But the appellants' good faith is clearly shown by the production of the maps, Exhibits 49 and 50, which have in some respects helped the respondent's case. Accordingly I would order that each party should bear its own costs throughout.