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Rajah of Venkatagiri Vs. Mukku Narsaya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtChennai
Decided On
Judge
Reported in7Ind.Cas.202
AppellantRajah of Venkatagiri
RespondentMukku Narsaya and ors.
Cases Referred and Ramsden v. Dyson L.R.
Excerpt:
landlord and tenant - action for ejectment--plea by tenant of permanent rights of occupancy--madras estates land act (i of 1908), sections 3(7), 6--retrospective effect--appeal whether re-hearing of suit--passing of act during pendency of appeal--power of appellate court to decide according to the act--'old waste'--lauds held on amaram tenure--onus of proving occupancy rights--adverse possession--disclaimer of landlord's title--inaction of the landlord--compensation, to tenant for improvements--equitable estoppel-acquiescence--transfer of property act (iv of 1882), sections 51, 108(h). - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v......1. this is an appeal by the defendants against a decree obtained by the rajah of venkatagiri for recovery of possession of a certain village. mr. seshagiri aiyar on behalf of the appellants has taken the point that, having regard to the fact that the madras estates land act, 1908, came into force during the pendency of this appeal, the appeal must be decided with reference to the law as laid down in that enactment. the advocate-general on behalf of the respondent took the objection that this question could not be raised as it was not made a ground of appeal in. the memorandum of appeal. we are of opinion that it is open to mr. seshagiri aiyar to take the point not with standing that the question is not raised in his grounds of appeal.2. mr. seshagiri aiyar contended that an appeal being.....
Judgment:

1. This is an appeal by the defendants against a decree obtained by the Rajah of Venkatagiri for recovery of possession of a certain village. Mr. Seshagiri Aiyar on behalf of the appellants has taken the point that, having regard to the fact that the Madras Estates Land Act, 1908, came into force during the pendency of this appeal, the appeal must be decided with reference to the law as laid down in that enactment. The Advocate-General on behalf of the respondent took the objection that this question could not be raised as it was not made a ground of appeal in. the memorandum of appeal. We are of opinion that it is open to Mr. Seshagiri Aiyar to take the point not with standing that the question is not raised in his grounds of appeal.

2. Mr. Seshagiri Aiyar contended that an appeal being by way of re-hearing, we should apply the law as it stands at the date of the hearing of the appeal. If we applied that law, he contended, inasmuch as be was, when the Act came into operation, in possession of ryoti Land, he was entitled to the benefit of the enactment contained in Section 6(1) of the Act as amended by the Act of 1909. He argued that the land in question was not 'old waste' as defined by Section 3 of the Act of 1908 since it did not come within the purview of the last paragraph of that section for the reason that as an appeal was pending when the Act came into force there had been at that time no 'final decree of a competent Civil Court.Although we should have expected to find the qualification of the right created by Section 6 in the section itself and not in the section which defines old waste,' the intention of the legislature is clear, viz., to prevent a man being deprived of the benefit of a judgment which he had obtained before the Act came into force.

3. It is to be observed that there is not to be found in the sections of the Code which relate to the powers of an appellate Court, or in the Rules, any provision which corresponds to Order LVIII, Rule 1 of the English rules of the Supreme Court that all appeals shall be by way of re-hearing.

4. In Kristnama Chari v. Mangammal 26 M. 91 there is an observation by Sir Bhashyam Aiyangar that when an appeal is preferred from a decree of a Court of Srst instance, the suit is continued in the Court of appeal, and re-heard either in whole or in part. This observation was with reference to the question of limitation then before the Court. We doubt if it can be relied on as supporting what we understood to be Mr. Seshagiri Aiyar's proposition. His proposition comes to this that under the Code and rule's an appeal is a re-hearing of the suit so as to have the effect of rendering a statute retrospective in its effect even though no such effect is to be gathered from the terms of the statute itself.

5. In Quilter v. Mapleson 9 Q.B.D. 672 : 52 L.J.Q.B. 44 : 47 L.T. 562 : 31 W.R. 75 the observation of Jessel, M.R., that on a re-hearing such a judgment may be given as ought to be given if the case came at that time before a Court of first instance, was made with reference to the English rule under the Judicature Act that appeal should be by way of re-hearing, and the same remark applies to the observation of Bowen, L. J. In the same case, that if the law had been altered pending an appeal, it would be pressing rules of procedure too far to say that the Court of appeal could not decide according to the existing state of the law. In Quilter v. Mapleson 9 Q.B.D. 672 : 52 L.J.Q.B. 44 : 47 L.T. 562 : 31 W.R. 75 the Court was of opinion that the section in question was in terms retrospective.

6. We express no opinion as to whether Section 6 of the Madras Estates Land Act, 1908, is in terms retrospective. Assuming it is, the retrospective rights created are cut down in a case to which the last paragraph of Section 3(7) applies.

7. As regards the words final decree' occurring in this paragraph, we are of opinion that they mean final with reference to the Court which passes the decree and that they are none the less final, for the purposes of the section, because an appeal was pending when the Act came into operation. Section 13 of the Code of 1882, as it seems to us, does not help Mr. Seshagiri Aiyar. For the purpose of the law of res judicata Explanation 4 says that a decision liable to appeal may be final within the meaning of the section until an appeal is made. The explanation was only for the purposes of the section. Moreover it does not find a place in the Code of 1903.

8. In S.A. No. 1153 of 1906, the lower appellate Court, reversing the decree of the Munsif, dismissed a suit in ejectment on the ground that the defendants have occupancy right. The Madras Estates Land Act came into operation after the decree of the lower appellate Court and before the hearing of the second appeal. This Court, whilst doubting whether the Judge was right in holding that the tenants had occupancy rights, was of opinion that Section 6 Clause (1) of the Madras Estates Land Act I of 1908, as amended by Act IV of 1909, conferred on the defendants permanent right of occupancy and they dismissed the appeal. The same view would seem to have been taken in S. A. No. 1592 of 1907. No doubt in S.A. No. 1158 of 1906 it was said that it was immaterial that a decree for possession had been already passed. Bat the decree there referred to would seem to have been the decree of the Munsif which had been reversed by the lower appellate Court. The present case, therefore, where there was an existing decree for possession at the time the second appeal was heard, is clearly distinguishable.

9. Assuming Section 6 of the Act of 1908 to be retrospective, it does not help the defendants if the land was old waste within the meaning of the section. We are of opinion that the land is old waste as defined by Section 3(7) since it is ryoli laud in respect of which before the passing of the Act the land-lordfhad obtained a final decree of a competent Civil Court establishing that the ryot has no occupancy right.

10. The result, therefore, is, assuming Section 6 to be retrospective, the right conferred upon the tenants by the section is cut down by the definition of old waste in Section 3(7), and the defendants, in this case, cannot rely upon the section.

11. The question whether the defendants have right of permanent occupancy in the lands from which the plaintiff now seeks to eject them came before this Court in the year 1899 on appeal from the Subordinate Judge of Nellore in O.S. No. 45 of 1897--[Narasayya v. Venkatagiri Rajah 26 M. 992] This Court, affirming the decree of the Subordinate Judge, held against the alleged right of permanent occupancy but dismissed the plaintiff's suit on the ground that the notices to quit which he had given to the defendants were insufficient. The sufficiency of the notices which have been given in the present suit is not contested.

12. The question of the defendants' alleged right of permanent occupancy has been investigated once again in the present suit by the District Judge of Nelloro, the matter not being res judicata by reason of the judgment of this Court, and in a very careful and exhaustive judgment he arrives at the same conclusion as that come to by the Subordinate Judge in the suit of 1894 and by this Court in appeal from the decree in that suit. We think this conclusion is right. There is no documentary evidence to show the origin of the defendants' title or to show the terms on which their predecessors-in-title obtained possession in the first instance or continued in possession after 1802, the date of Lord Clive's letter when the defendants' ancestors were relieved from the obligation of rendering military service. It is not disputed that the village in question forms part of the Venkatagiri Zamindari of which the plaintiff is the proprietor. On the other hand, the defendants and their ancestors have been in possession, with intervals during which the lands were resumed by the plaintiff's predecessors, for some 200 years. The defendant made some attempt to prove that their ancestors got into possession under grants from the plaintiff's predecessors, but we think the District Judge was perfectly right in disbelieving the evidence tendered by the defendants in support of these alleged grants. The case made by the plaintiff in his plaint is that the defendants were allowed to continue' in possession after 1802. There is a good deal of evidence to show that the defendants and their ancestors were described as amaramdars and although the precise nature of an amaram tenure is by no means clear, it seems to have been generally assumed that lands held on amaram tenure are resumable--See Wilson's Glossary, page 21, Unidi Rajaha Raji Bommarauze Buhadur v. Pemmasamy Venatadry Naidoo 7 M.I.A. 128 : 4 W.R. (P.C.) 121 We think it is clear, in fact, it was not seriouslycontested, that the lands were resumable in 1802. See Sitaramarazu v. Ramachandra Bazu 3 M. 367 Sanniyasi v. Razu Zamindar of Salur 7 M. 268 Mahadevi v. Vikrama 14 MA. 365 Radha Pershad Singh v. Budhu Dashad 22 C. 938.

13. The fact would seem to have been that after 1802, the defendants' ancestors were allowed to continue in possession on payment of rent, and the defendants' ancestors and the defendants, with some intervals during which the plaintiff and his predecessors resumed possession, have been in possession until now.

14. Two points tell against the right of permanent occupancy claimed by the defendants. The plaintiff's ancestors have from time to time raised the jodi, or rent, and there is no evidence to show the defendants disputed their right to do so. This is not conclusive (see Appeal No. 43 of 1903) but it is some evidence against the right of permanent occupancy claimed by the defendants. The other fact is that the plaintiff's ancestors resumed possession of the lands from 1835 to 1849 and again from 1876 to 1882. As regards the period 1835 to 1849, there is no evidence that the defendants contested the plaintiff's right to resume. As regards the period 1876 to 1882, there is some evidence though of a very unsatisfactory character that the defendants denied the right.

15. We think the present case is governed by the decision of the Privy Council in the case of Unidi Rajah Raji Bammarazu Buhadur v. Pemmasamy Venkatadry Naidoo 7 M.I.A 128 : 4 W.R. (P.C.) 121. Where the lands in question formed part of the Zamindary of Karvetnagar in Madras and were held on amaram tenure and where the letter of Lord Clive of 1802, to which reference was made, relieving the Zamindar from military services, had been sent to the Zamindar. In that case, their Lordships observe: 'It is a, possible ease, looking at (he extensive powers with which the Zamindar is invested, that the grant being originally amaram, and resurnable, might, when the military service was dispensed with, and circumstances had changed, have been converted into a perpetual grant upon a fixed payment. Had this been the Case, it ought to have been distinctly pleaded, and the grants themselves, if produced, would have shown whether such defence could be supported.'

16. In the present case, the defendants do not plead a grant in 1802 though they allege that the Zamindar (paragraph No. 8 of the written statement) entered into arrangements with the defendants' ancestors by which the jodi, payable by them was slightly increased and permanently fixed and the defendants' ancestors were, thereafter, to be in possession of their village as their absolute property with all powers of alienation.' There is no evidence to support this allegation of an 'arrangement' having been come to in 1802. We think the case of Forbes v. Mcer Mahomed Tuquer 13 M.I.A. 438 : 5 B.L.R. 529 : 14 W.R. 28, where the defendants were able to prove a grant pro sacristies impensiset impendendis, services which though obsolete might again be required to be performed, is clearly distinguishable from the present case.

17. We are of opinion that the plaintiff, has apart from the question of limitation established his right to resume the lands in. question on giving reasonable notice to the defendants.

18. The question of limitation is, in our opinion, one of greater difficulty. Though the rent has been raised from time to time, it has been uniform since 1876 and has been paid up to a short time before the institution of the suit.

19. The defendants were out of possession from 1876 to 1882, during which period the plaintiff had resumed possession and himself collected the rent direct from the ryots, In '1882, the defendants got back into possession. The defendants' case is that by 12 years' possession, they have acquired a prescriptive title to a permanent right of occupancy subject to the payment of the rent fixed in 1876 and regularly paid by them since they got back into possession in 1882.

20. So far as this Presidency is concerned, it would seem to be well settled that a person who has lawfully come into possession as tenant from year to year or a term of years cannot by setting up, however, notoriously, during the continuance of such relation, any title adverse to that of the landlord inconsistent with the legal relation between them, acquire, by limitation, title as owner or any other title inconsistent with that under which he was let into possession, Seshamma Shettati v. Ohickoya Hegade 25 M. 507 : 12 M.L.J. 49 But 'if after the determination of the tenancy, the tenant remains in possession- as trespasser for the statutory period, he will, by proscription, acquire a right as owner or such limited estate as he might prescribe for,' see Seshamma Shettati v. Chickoya Hegade 25 M. 507 : 12 M.L.J. 49 In Parameswaram humbanno v. Krishnan Tengal 26 M. 535 the adverse possession was held to have commenced after the former tenancy had been determined and the plea of limitation was upheld.

21. The doctrine enunciated in these two cases, as we have said, would seem to be well established in this Presidency and to be consistent with the law of England. In Archbold v. Scully 11 E.R. 769 : 9 H.L. Cas 360 : 7 Jur. (N.S.) 1160 : 5 L.T. 60 the House of Lords held it was not within the power of a tenant by any act of his own to alter the relation in which he stands to his landlord. Lord Wensleydale cites the observations of Lord Redesdale in an earlier case: 'I take it to be that whenever a person comes to the possession either by judgment of law or his own agreement, and holds that possession, he and all who claim under him must hold it according to his right to the possession, and cannot qualify it by any other right.' A disclaimer of the lessor's title by the lessee may be a ground of forfeiture, but it does not in itself make the statute of limitations run against the lessor. See Lightwood's Time Limit On Actions p. 107, citing Archbold v. Scully 11 E.R. 769 : 9 H.L. Cas 360 : 7 Jur. (N.S.) 1160 : 5 L.T. 60. We do not find that the doctrine has been formulated in the other High Courts in India, In fact in Calcutta and Bombay, the view would seem to be that the assertion of the adverse right coupled with possession for the statutory period is enough. In Vithalbowa v. Narayan Daoi Thite18 B. 507 the view taken was that the assertion of a permanent right of occupancy during the subsistence of a Feuancy at will would bring the law of limitation into operation and in Thakore Fatesingji v. Bamanji A. Dalal 27 B. 515 : 5 Bom. L.R. 274 it was held by Batty,' that a tenant in India is not precluded by an admission of tenancy from showing that the nature of the tenancy asserted by him to the knowledge of the landlord has been for the prescribed period pro tanto adverse to the right of the landlord to evict. The cases of Gopal Rao v. Mahadev Rao 21 B. 304 and Bwdesab v. Hanmanta 21 B. 509 would appear to have been decided on the ground that the assertion of the adverse right coupled with the possession for the statutory period was suffcient independently of the question whether when the right was asserted, the relation of landlord and tenant subsisted or not. In Drobomoyi Gupta v. Davis 14 C. 323 the plea of limitation was upheld on the ground that the landlord was aware that the tenants were claiming to hold with rights of permanent occupancy, and in Ichran Singh v. Nilmoney Balidar 35 C. 470 : 12 C.W.N. 686 : 7 Cri.L.J. 499 it was held that a person could plead tenancy, and, in the alternative, a prescriptive title by adverse possession of a limited interest.

22. The decision of the Privy Council in Beni Pershad Koeri v. Dudhnath Roy 27 C. 156 : 26 I.A. 216 : 4 C.W.N. 274 where it was held that a notice by a tenant for life that he claimed perpetual right of occupancy did not make his possession adverse, would seem to have proceeded on the ground that when the adverse right was set up, the landlord could not sue for possession.

23. We feel some doubt as to whether we ought to apply the doctrine enunciated in Seshamma Shettati v. Chiekoya Hegade 25 M. 507 : 12 M.L.J. 49 in a case where the landlord has shown by an unequivocal act that he intends to exorcise his option and determine the tenancy. See Srinivas Ayyar v. Muthusami Pillai 24 M. 246 even though he may not have succeeded in doing so. In such a case it seems to us that it might well be held that the landlord could not be heard to say that there is a subsisting tenancy which prevents the acquisition of a limited title under the law of Imitation. The landlord is not bound to exercise his option and repudiate the tenancy, but if ho does, even though he does not succeed in evicting the parties in possession, we doubt whether he should be allowed to set up a subsisting tenancy as a ground for preventing the acquisition by prescription of a limited interest.

24. In the present case a notice to quit was given in 1884, and (see paragraph No. 13 of the judgment of the District Judge) the Judge was of opinion that this notice was not reasonable, but it would seem to have been a six months' notice (see Exhibit VI) and that efforts were made to serve it (see Exhibits VI A and VI B).

25. There is no evidence as to what was done under this notice but the Judge seems to have been of opinion it was not a reasonable notice. We doubt if the subsequent, receipt of rent by the landlord could be relied on as waiver of the notice since it was equally consistent with the defendants' claim that they had permanent rights of occupancy (they have never denied their liability to pay rent) as with the plaintiff's claim that the lauds were resumaable. In this state of things we should be inclined, to hold that the plea of limitation was made out if there was satisfactory evidence of the assertion of an adverse title by the defendants when they got back into possession in 1882. The evidence of the 52nd defendant that the tahsidar had been told in 1876 that the Rajah had no power to resume possession of the village since it had been granted permanently cannot be relied on, since this witness denied the fact of resumption in 1876, which is now admitted. Further this evidence, even if true, would not help the defendant since they would appear to have done nothing to resist the resumption in 1876, though there is some evidence that the Zamindar had executed pattas to the defendants from 1876 to 1882 and that they refused to receive the pattahs and execute innchilikas--see the evidence of the plaintiff's 4th witness, the Kurnam of the village in cross-examination. The defendants got back in 1882. Assuming they got back without the permission of the plaintiff and he accepted the situation and continued to receive the rent at the rate fixed in 1876, there is nothing to show that they got back under the assertion of the adverse right which they set up in the suit of 1894. The rent was paid and received as before and there is nothing to show that the landlord accepted the rent as payable by them as tenants from year to year or that they paid the rent as an incident of their permanent tenure. In the absence of evidence to show an assertion of an adverse title 12 years before the suit, we must hold that the plea of limitation is not made out.

26. We think the District Judge was right and that this appeal should be dismissed with costs.

White, C.J

27. This is an appeal by the plaintiff against so much of the decree in ejectment obtained by him as directs the payment of compensation to certain of the defendants. In cases to which the Transfer of Property Act applies the rights of the tenant are defined by Section 108(h) of that enactment and the extent of the right is the same in cases not governed by the Act. See Isamil Khan Mahomed v. Jaigun Bibi 27 C. 570 : 11 C.W.N. 210. I do not think Section 51 of the Act applies in terms as between landlord and tenant. The observations in Ismail Kani Rowthan v. Nazarali Sahib 27 M. 211 : 14 M.L.J. 25 may be said to indicate a contrary view but those observations are very guarded, and they are, moreover, obiter. Even if the section applied, I do not see how, in this case, it could be said the defendants believed in good faith they were absolutely entitled' to the property in question. There have been at least two resumptions of the property by the zamindar. There is no trustworthy evidence that these resumptions were resisted by the defendants. There have been enhancements of rent and there is nothing to show those enhancements were not accepted without protest. Both under the Hindu and the Muhammadan law as well as under the common law of India, a tenant who erects a building on land let to him can only remove the building and cannot claim compensation in eviction, Ismail Kani Rowthan v. Nazarali Sahib 27 Ma. 211 : 14 M.L.J. 25.

28. The further question is, do the facts of this case bring it within any principle of equity which entitles the defendants to say, if we are evicted, we must be paid compensation? At the highest the evidence shows the plaintiff knew the improvements were being effected and did not interfere. This is clearly not enough to estop the plaintiff in a suit for possession, see Beni Ram v. Kundan Lal 21 A. 496 : 26 I.A. 58 : 3 C.W.N. 502 and, in my opinion, it is not enough to give the. defendants a right to compensation. In fact, I should be disposed to hold, if there is no express contract, unless the lessor is estopped from suing for possession the lessee cannot claim compensation. If the lessor is estopped from recovering possession the Court can say--you are estopped but we will not enforce this equity against you if you pay the tenant such compensation as we think fair.

29. There are, however, no doubt, cases in which Courts in this country have granted compensation on what I may call general equitable grounds, without considering the question whether the facts gave rise to an estoppel against the lessor which would disentitle him from suing to recover possession. Assuming a right to compensation may arise in a case in which the lessor is not estopped from recovering possession, I am of opinion, on the facts, there is no such right in this case.

30. The learned Judge in the Court below relied on Dattatraya Rayajipai v. Sridhar Narayan Pal 17 B. 736. In that case compensation was awarded to the tenant, the Court being of opinion that the facts brought the case within the principle of the decision in Ramsden v. Dyson L.R. 1 H.L. 129 : 12 Jur. 506 : 14 W.R. 926 but there were special circumstances in that case from which the Court was able to draw the inference that the plaintiff by his conduct afforded hope and encouragement to the defendant that he would be allowed to remain in peaceable possession or at least would not be ejected without a reasonable return for the expenditure incurred by him. The case of Mahalatchmi Ammal v. Palani Chetti 6 M.H.C.R 245 is, no doubt, an authority in the defendants' favour but with all respect, I doubt if this decision is good law. See the observations in Ismail Kani Rowthan v. Nuzarali Sahib 27 M. 211 : 14 M.L.J. 25.

31. Even accepting the principle laid down in Nundo Kumar Nasker v. Bonomali Gayan 29 Ca. 871 in my opinion, the facts of this case do not come within the principle there stated.

32. In Municipal Corporation of Bombay v. Secretary of State 29 B. 580 : 7 Bom. L.R 27 the Court held, on the facts, that the defendants acted on a belief which was referable to an expectation created by Government that their enjoyment of the land would be in accordance with that belief and that the Government knew that the defendants were acting in this belief so created. In this view of the facts the Court held the defendants were entitled to the benefit of the dictum formulated by Lord Kingsdownin Ramsden v Dyson L. R. 1 H. L. 129 : 12 Jur. (N.S.) 506 : 14 W.R. 926.

33. In Ramsden v. Dyson L.R. 1 H.L. 129 : 12 Jur. (N.S.) 506 : 14 W.R. 926, the House of Lords held against the alleged equitable rights set up by the defendant, Lord Kingsdown dissenting from Lord Oranworth, Lord Wensleydale and Lord Westbury. There is nothing, however, in so far as I can see, in the judgments of their learned Lords which is inconsistent with Lord Kingsdown's proposition. The proposition is this: If a man, under a verbal agreement with a landlord for a certain interest in land, or under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord,and, upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.' I do not think the facts of the present case bring the case within Lord Kingsdown's dictum. In my opinion the evidence does not show that there has been a hope or expectation in the tenant which was created or encouraged by the landlord.

34. I think this appeal should be allowed with costs.

Abdur Rahim, J

35. I agree that this appeal should be allowed as I have no doubt that in the circumstances referred to by the learned Chief Justice, the tenants could not have believed in. good faith when they dug the wells in the land that they had a permanent right to the land or that the landlord would grant them such a right. If they had acted under such belief they would have been entitled to insist that they should not be ejected at all or that if ejected compensation should be paid to them for the improvements which they had effected under such belief provided they proved that they made the improvements in circumstances which would induce a Court of equity to imply a contract between them and the landlord that the landlord would not eject them or in case he ejected them that he would pay them the value of the improvements.

36. The Court would infer such a contract if the landlord by his conduct encouraged or raised an expectation in the tenant spending money in making improvements that the latter would not be evicted at all or at least not without being compensated for the value of such improvements and the improvements were, in fact, made under such expectations. Such a contract is inferred in order to relieve the tenant from the fraud of the landlord. This, I take it, is the extent to which the doctrine of equitable estoppel is well established, Ramsden v. Dyson L.R. 1 H.L. 129 : 12 Jur. 506 : 14 W.R. 926, Beni Ram v. Kundan Lal 21 A. 496 : 26 I.A. 58 : 3 C.W.N. 502, and Municipal Corporation of Bombay v. Secretary of State 29 B. 580 : 7 Bom. L.R 27. We are not called upon to decide in this case having regard to its undoubted facts the question whether if the. tenants believed that they had a permanent right to the land and in such belief, but without that belief being created or actively encouraged by the landlord, made the improvements to the knowledge of the landlord and without any warning or interference by him, they could be ejected at all or whether in any case the landlord should not pay them the value of improvements. The opinions delivered by the learned Lords in Bamsden v. Dyson L.R. 1 H.L. 129 : 12 Jur. (N.S.) 506 : 14 W.R. 926, especially that of the Lord Chancellor, Lord Cranworth (p. 141) makes it clear that in cases of this nature the Court of Equity would raise an equitable estoppel against the owner of the land less readily in a case where the tenant makes permanent improvements on the land than where a stranger makes similar improvements. And the grounds for such a distinction are obvious. The tenant making permanent improvements might well have relied on the honour of the landlord not to evict him so long as the rent was regularly paid. While ordinarily a similar interpretation could hardly be placed on the conduct of a stranger in spending his money upon another's land. And 1 do not think the doctrine of equitable estoppel has been or should be extended as between a landlord and his tenant to a case where all that can be alleged against the former is that he did not interfere and merely remained passive with the knowledge that the tenant was making improvements under a mistaken belief that he had a more stable interest in the land than that of a tenant-at-will or of a tenant from year to year. This is what I gather from what is laid down in Beni Ram v. Kundan Lal 21 A. 496 : 26 I.A. 58 : 3 C.W.N. 502, in Ismail Khan Mahomed v. Jaigun Bibi 27 C. 570 : 11 C.W.N. 210, in Ismail Kani Rowthan v. Nazarali Sahib 27 M. 211 : 14 M.L.J. 25.In Dattatraya Rayajipai v. Shridhar Narayan Pai 17 B. 736 and Municipal Corporation of Bombay v. Secretary of State 29 B. 580 : 7 Bom. L.R 27. The contrary view which is supported by Mahalatchmi Ammal v. Palani Chetty 6 M.H.C.R 245 and a dictum of the learned Judges in Nando Kumar Naskar v. Bonomali Gayan 29 C. 871 seems to be against the weight of authority. The tenant should know under what terms he has been let into possession and the law lays no duty upon the landlord to remind his tenant of his title under which he holds the land. So far as the present ease is concerned the cases of Bsni Ram v. Kuridan Lal 21 A. 496 : 26 I.A. 58 : 3 C.W.N. 502 and Ramsden v. Dyson L.R. 1 H.L. 129 : 12 Jur. (N.S.) 506 : 14 W.R. 926 clearly lay down the principle from which it follows that if a tenant knowing the extent of his interest in the land in his possession, as is the case here, chooses to expend money upon a title which he must know would soon come to an end that is his own folly and he cannot ask the owner of the land to recoup him for such expenditure. It has been suggested that unless the lessor is estopped from suing for possession the tenant would not be entitled to claim compensation. I am not prepared without the question being argued at the bar to give my adherence to it. Such a proposition was not advanced during argument and it seems to me that there may be cases where the landlord would not be estopped from recovering possession but only estopped from recovering possession without paying for the improvements effected by the tenant. I may mention that there is a class of cases in which the Court has refused to grant mandatory injunction for the removal of permanent buildings erected on his holding by a ryot having a right of occupancy, if the landlord has been guilty of laches or delay in bringinsr his action. But those cases stand on a different principle. As regards Section 108 of the Transfer of Property Act that only deals with the right of the tenant to remove the fixtures he has planted in the land and Section 51 of the same Act apparently applies only to the case of a transferee of an absolute right in land. Nor are we concerned in this case with the right under the Hindu or Muhammadan Law of a tenant or a trespasser to remove buildings or the structures erected by such a person.


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