W. Comer Petheram, C.J. and Beverley, J.
1. This is an appeal from a decree of the District Judge of 24-Pergunnahs apportioning the compensation money awarded for a plot of land, 9 Mullick's Street, Calcutta, acquired under Act X of 1870, for the construction of the Harrison Road.
2. The appellant is the owner of the land in question, and the respondents represent tenants under him who had erected masonry buildings on portions of the land. The tenants claimed before the Collector the value of their respective interests in the land, but as the owner claimed to be entitled to the entire compensation-money, the matter was referred to the Judge under Section 39 of the Act. The Judge has awarded to the respondents the value of the buildings which stood on the portions of the land occupied by them, and against this decree the owner appeals.
3. It is proved by the evidence that the respondents, or their predecessors in interest, have occupied portions of the land for many years, paying rent therefor to the appellant; that in one case forty years ago, and in the other twenty-live years ago, the respondents, with the knowledge and permission of the appellant, erected masonry buildings on the land which they have since been letting out to tenants; that the respondents have no written leases, but that the rent has been varied from time to time, being fixed for short terms either by oral or written agreement between the parties. The respondents were thus in possession at the time the land was acquired by the Corporation.
4. Upon these facts the District Judge has found that the presumption arises that the lands were originally granted to the respondents for building purposes, and that they were entitled to hold them so long as they paid the rent which they agree to pay. We think that these findings are borne out by the evidence, and under these circumstances we think that the respondents were clearly entitled to share in the compensation awarded for the land, though it may be open to question whether the mode in which the value of their interest has been ascertained was the correct one.
5. Mr. O'Kinealy on behalf of the appellant has contended that the respondents' tenures having come to an end when the land was acquired by the Corporation, the buildings standing on the land became the property of the owner of the land, and that the Judge was wrong in awarding the value of those buildings to the respondents. In support of this argument he has relied upon the case of Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R. 8 Cal. 582. In that case it was held that the purchaser of a Hindu widow's estate in land situated in Calcutta was not entitled to remove buildings erected by him on the land after the land fell into the possession of the reversioners. We think that that case is distinguishable from the present, inasmuch as at the time the land now in question was acquired by the Corporation, the respondents wore actually in possession, whereas the ratio deeidendi in the case of Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R. 8 Cal. 582 was based on the fact that the land had fallen into the possession of the reversioners. The learned Judges who decided that case certainly did not go so far as to hold that the buildings might not have been removed by the tenants of the limited estate while they were still in possession.
6. On the other hand, we have been referred to the ruling of a Full Bench of this Court In the matter of the petition of Thakoor Chunder Paramanick B.L.R. Sup. Vol. 595 : 6 W.R. 228, to the case of Russick Loll Mudduck v. Loke Nath Kurmokar I.L.R. 5 Cal. 688, and to that of Yeshivadabai v. Ram Chandra Tukaram I.L.R. 18 Bom. 66.
7. The rule laid down by the Full Bench was based on the usages and customs of the country, and was stated in the following terms:
We think it clear that according to the usages and customs of the country, buildings and other such improvements made on land do not by the more accident of their attachment to the soil become the property of the owner of the soil; and we think it should be laid down as a general rule that if he who makes the improvement is not a mere trespasser, but is in possession under any bond fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking the building, or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.
8. In the case Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R. 8 Cal. 582 the above rule was treated, not as a rule of Hindu Law, but as a rule of equity and good conscience, applicable to the mofussil but not to Calcutta. Pontifex, J., pointed out that the rule laid down in Narada related to contracts for tenancies in which rent was paid, and did not apply to the case before him.
9. In the case of Russick Loll Mudduck v. Loke Nath Kurmokar I.L.R. 5 Cal. 688 Wilson, J. held that in a question of tenancy created by contract between Hindus the parties were governed by Hindu law, and that the rule laid down by the Full Bench would apply even in the town of Calcutta.
10. In the Bombay case, which related to land in the town of Bombay, the position of the plaintiffs was very similar to that of the respondents in the case before us. They had held the land for some years and had been allowed to erect buildings upon it. The defendant then attempted to treat them as monthly tenants, gave them notice to quit and sought to eject them without any compensation whatever. The Court appears to have thought that Act XI of 1855 would apply to the case, but as the defendants in that case claimed to retain the possession of the land and not merely to receive compensation for the buildings, it was decided that even if the Court was not justified in holding that the land had been originally granted for building purposes, the defendant was precluded from ejecting the plaintiffs without compensation.
11. In the face of these authorities we should not be prepared to hold upon the authority of the case of Juggut Mohinee Dossee v. Divarka Nath Bysack I.L.R. 8 Cal. 582, that even had the tenancy been determined, the appellant in the present case would have been entitled to the building erected by the defendants without being liable to pay them compensation.
12. The Transfer of Property Act (IV of 1882) applies to Calcutta as well as to the mofussil, and Section 108 of that Act provides that in the absence of a contract or local usage to the contrary the lessor and the lessee of immoveable property, as against one another, possess certain rights and are subject to certain liabilities therein specified, and among the rights of the lessee Clause (h) provides 'that the lessee may remove at any time during the continuance of the lease,' all things which he has attached to the earth (see Section 3) provided he leaves the property in the state in which he received it. In the present case the land was acquired by the Corporation during the continuance of the lease in the sense that the relationship of landlord and tenant was still subsisting between the parties, and that being so, the respondents were, we think, entitled to the compensation for the buildings which was paid by the Corporation.
13. It is possible indeed that the tenants might have been found to be entitled to a larger amount of the compensation awarded had their claim been enquired into on a different basis, but as apparently they limited their claim before the District Judge to the estimated value of the buildings, it was not competent to the lower Court to award them anything in excess of those amounts. As a matter of fact the appellant has been awarded the sum of Rs. 52,778-1-0 and the respondents the sum of Rs. 2,899 and Rs. 1,185, respectively. The proceedings on the record do not show how the total compensation money amounting to Rs. 56,864-1-0 was ascertained, but upon the evidence on the record we cannot but think that the respondents' interests in the lands have been cheaply purchased at the sums awarded to them.
14. We must accordingly dismiss this appeal with costs.