1. This is a Letters Patent Appeal from the judgment of Cuming, J., sitting in second appeal, the learned Judge having granted leave to appeal under Section 15, Letters Patent.
2. The suit has reference to a plot of land in Howrah lying between Howrah Road and the river. The size of the plot is 8 cottas. The Munsif inspected it on 7th April 1926. He found an old boundary-wall on the north side of it, a pucca privy and a square pucca garh some 11 1/2 feet long, 10 feet broad with a 3 feet wide verandah; height about 8 feet 10 inches above the plinth. There were certain tile-roofed huts some of which had brick walls. The plaintiff has a mukarrari right under the zamindar and ho contends that the tenancy is a monthly tenancy which he has determined by service of notice to quit. The contention of the defendants is that the tenancy is an old one, in origin anterior to the Transfer of Property Act of 1882, that it was given for residential purposes and is a permanent tenancy.
3. It was held by the Judicial Committee in the case of Dhanamal v. Moti Sagar that the question whether a tenancy is permanent is not to be treated as itself a mere question of fact. Actual findings of fact by the lower appellate Court, how-lover are binding upon us.
4. The plaintiff's original case was that defendant 1, Bhagaban, took settlement from the plaintiff himself as a monthly tenant upon a monthly rent of Re. 1-15-0. This case however has been disbelieved and is not further persisted in. Indeed it is manifestly false. The evidence shows that prior to 1874 this very tenancy was possessed by one Gourdas Bairagi. Secondary evidence, which both Courts have accepted, has been given of a kabala (Ex. A-l) whereby Gourdas Bairagi sold it to Dinanath Sarkar. At some time before 1911 Dinanath was succeeded by Bhagaban who is said to have been his adopted son. In 1920 (1327 Aswin) the plaintiff served a notice of ejectment upon Bhagaban. In the month of Magh there after, the present appellants purchased the interest of Bhagaban for a sum of Rs. 14,700 by the kabala Ex. A. This appears to have been a speculative purchase but there is no evidence to show or even to suggest that it was not a genuine bargain and on the question of the payment of consideration the witnesses for the defence were not cross-examined to any such case. By 1921 indeed it would seem clear that the defendants' interest in the suit land had very considerable value because at the time when the plaintiff was valuing this suit for purposes of jurisdiction upon the footing of the market value of the land ho valued his suit at Rs. 10,808 as appears from the judgment of the Munsif.
5. The learned Munsif held in favour of the defendants, that the tenancy was a permanent one and transferable, finding that the origin of the tenancy was not known, that it was for residential purposes, that it was granted long before the Transfer of Property Act, that there has been uniform payment of rent, that there are old substantial pucca structures on the land and that there has been one case of transfer and one succession recognized by the landlord. On appeal the learned Subordinate Judge found in favour of the plaintiff, basing his judgment upon the language of certain rent receipts in the eighties and nineties from which he infers that the tenancy was a monthly tenancy. The learned Subordinate Judge explains in his judgment that but for these rent receipts he would not have differed from the trial Court; but he thinks that they are fatal to the case of the defence and clearly show that the tenancy is from month to month.
6. In considering whether the proper legal inference from the facts proved is that the tenancy was a permanent one, it is necessary I think to bear in mind two considerations. The first is that the legal inference of permanency is to be drawn' from the ascertained facts taken as a whole. It may well be that the element of the uniformity of rent, of the existence of pucca structures or any other element taken by itself would not necessarily involve or demonstrate a permanent right. But in the present case there are a number of elements and it is only upon a complete review of all the relevant considerations that one is in a position to draw the proper inference. It will not do to take each element by itself and to reject them one after another as insufficient. The reasoning of the learned Judge in second appeal is I think open to some criticizm on this score.
7. A second thing which it is important to bear in mind is that even although there be a considerable number of facts which point to the tenancy having a permanent character, the effect of these facts as evidence may be entirely destroyed by a single piece of negative evidence. In appreciating and acting upon this principle the learned Subordinate Judge is justified in his method, whether or not he has applied that method correctly to the facts.
8. Postponing for the moment the consideration of the question whether the rent receipts show that the tenancy was a monthly tenancy. I cannot doubt that the broader facts proved with reference to the tenancy, make an impressive case for the inference of permanency. There can I think be no doubt that the tenancy dates back to some considerable time before 1874. The recitals in the kabala of 1874 are not shown to have come to the notice of the landlord and while they are evidence, they are evidence only of the fact that the tenant in 1874 is making a claim to certain rights: of. Evidence Act, Section 13. A tenant selling his holding, might of course very easily claim that it was permanent when it was not; but he would be soon found out if he misstated the rent and it would be of little use to misdescribe the structures on the land. In 1874 it appears that there were five huts with tiled roofs and one old pucca structure apart from certain thatched sheds and certain cutcha walls. The actual origin of the tenancy is unknown but it can hardly be doubted that prior to 1874 we find the property being used for residential purposes. At that date we find also the pucca garh treated as an old structure which Gourdas had a right to sell. It has been contended for the plaintiff that when defendant 2 bought from Bhagaban in 1920 he says that he asked for the patta and was told that the patta had been lost, and that for this reason we should not treat this tenancy as one whose origin is unknown. This however seems to me unreasonable. Again it is said that Gourdas, according to the judgment of the Subordinate Judge, was an itinerant sort of person moving from place to place with his thakurs, having no place of residence. This is set forth in the judgment of the lower appellate Court as something to be found in the evidence of D.W. 2 Sagor Chander Adhikari. But I have been unable to find any evidence to this effect. On the contrary, the witness remembers Gourdas living on the suit land with a Thakurgarh and some Khola ghars; he remembers Gourdas when ho (witness) was 5 or 6 years old and he says that Gourdas went to Brindaban when the witness was 19 or 20 and Gourdas was about 40 years old.
9. Upon the question whether a tenancy is permanent or not the law of India, as 1 understand it, attaches a good deal of importance to the question whether the tenancy was for residential purposes. This is apart altogether from the question whether substantial structures were built upon the land. Substantial structures may be built for the purposes of shops, but in this country the old-fashioned notion at all events was that a place which was intended as a family home was very likely to be intended to be held in permanent right. There is a strong disinclination to move from the ancestral home whatever it may be, and it is this element that accounts for the importance attributed by the law to the question whether the tenancy was granted for the purpose of residence. It is contended that from this point of view a Bairagi is somewhat different from the ordinary member of the public and that in this case no great importance attaches to the fact that we find this tenancy being used and enjoyed for the purpose of residence. I doubt extremely whether any force-should be attributed to this criticizm. On the evidence Gourdas seems to have been on this land for a substantial time and when in 1874 he ultimately decided to go to Brindaban and to sell his right, it is clear 1 think that he had been erecting structures for living purposes upon the land in addition to the old pucca garh.
10. Prior to the Transfer of Property Act a tenancy which was not permanent was certainly not transferable, and the fact that the transfer was recognized by the landlord without any claim being made to require the transferee to make terms with him for a new tenancy points very firmly in favour of a permanent right. It is true that in this case there is only one transfer and that one cannot necessarily expect the plaintiff to have in his possession any detailed evidence as to his recognition of Dinanath; but the plaintiff gives no evidence of having obtained a salami or nazar and Dinanath having taken the kabala (Ex. A-l) had himself recorded in the landlord's sherista and paid rent in his own name. There is no evidence of any difficulty having arisen by reason of Dinanath having bought a transferable right which Gourdas had no title to give him.. It is true however that the fact that Gourdas professed to transfer the right as a permanent one is not brought home to the knowledge of the landlord. Again when Dinanath died, Bhagaban was allowed to continue in the tenancy. One succession in a case of this kind has no great force of itself. It is readily seen that a landlord might not utilize the occasion of a tenant's death to oust his family. Whether or not he would utilize it as a suitable opportunity to make a claim for higher rent depends upon circumstances. In the present case it would appear that the facts are rather special.
11. There was a rent suit in 1908 in which the plaintiff claimed rent of Rs. 28-2-0 for the years 1311-1314 (1904.07) and which was decreed on compromise at a lesser rate. There was another suit against defendant 1 in 19.11 which raised the question of the nature of the tenancy as well as the amount of the rent. This was compromised at the rate of Rs. 23-2-0 and the question of status was left open. It was however decided that the jama was an annual jama of Rs. 23-2-0. It would seem that from 1911 down to the time of the present suit, the plaintiff showed a certain willingness to challenge the defendant's permanent right, but had never forced it to a conclusion, and the origin of the present suit is plain enough. Proceedings having been taken under Section 115, Criminal P.C., and the Magistrate having decided in favour of the defendants, the plaintiff had to bring his suit or lose his claim. On the whole however there is in these circumstances not much force in the fact that Bhagaban succeeded Dinanath. I now come to the question of uniformity of rent.
12. The learned Subordinate Judge in 1928 observed that the appellants in purchasing this property purchased a litigation and took a chance as the price of town lands has gone up very high.' There is ample evidence to support this finding and I have already referred to the plaintiff's own valuation, Rs. 10,808. In addition there were proceedings in 1908 whereby two chittaks of frontage of this land were taken for road widening purposes at Rs. 1,000, per cotta. As against a rent of Rs. 23-2-0, the capital value of this land had clearly risen very much both before 1908 and after. This circumstance seems to give much significance to the fact of uniformity of rent.
13. It would seem impossible to doubt that the rent of this holding was an annual rent of Rs. 23-2-0. This was stated in the kabala of 1874 and to this effect also is the compromise decree in the suit of 1911. The plaintiff's case was that the rent was a monthly rent of Re. 1-15-0, which would amount to Rs. 23-4-0 for the year. The rent receipts themselves show that the rent for a year was Rs. 23-2-0. Prom the first time to which we can trace the matter down to the present time rent at no other rate has ever been paid. Now, it was very important for the plaintiff to dislodge this figure of Rs. 23-2-0; because if the tenancy was let at so much per month, the monthly rent must have been the curious figure of Re. 1-14-3 and 1-2/3 gandas. Hence the plaintiff falsely claimed that the annual rent was Rs. 23-4-0, so that he might make out that the property had been let at Re. 1-15-0 per month.
14. Let us see then if the rent receipts of the eighties show a monthly tenancy. The ordinary kists in Bengal fall in the third, sixth, ninth and twelfth months of the Bengali year--Asar, Aswin, Pous and Chaitrarent being due and in arrear at sunset on the last clay of these months. Every one of the receipts produced shows payment being made at or about the time of a kist--sometimes payment is made for the three previous months, sometimes for six previous months and sometimes for twelve. But all payments are in English language for one or more quarters and they are all at a rate which stated in terms of a year, is Rs. 23-2-0, and in terms of a month would work out to the figure given, viz., Re. 1-14-3, 1-2/3. gandas. The statement in the rent receipts is a statement of the months e.g., from Sravan to Aswin, from Baisak to Aswin, from Baisak to Chaitra. In some rent receipts that is all that is given in explanation of the amount paid; in others-there is added the phrase ' for three-months' or 'for six months.' It seems to me that such a statement in rent receipts is entirely neutral. It does not-show whether it is done to explain that the rent is paid as a certain fraction of an annual rent or a certain multiple of a monthly rent. Nowhere does the corresponding figure for one month Re. 1-14-3 1-2/3 gandas appear in these receipts. No-payment is for less than a quarter and all payments are at the time of a kist.
15. The tenancy is clearly proved to have originated before the Transfer of Property Act of 1882 which did not apply to the tenancy at all; of. Section 2. I think it is probably quite true that the ordinary Bengali custom, such as obtains in the mufassil and in respect of agricultural rents, would rather be to describe a payment as a payment for the Aswin kist than as a payment from Sravan to Aswin, for three months. But the mere fact that a receipt is not in the most usual form is not a reason for giving it a meaning which it does not necessarily bear. The receipts in question are on printed forms which in some cases are adopted to distinguish between current rent and arrears; but speaking generally, the distinction is not observed when making the manuscript entry and the entry is made as one, e.g., from Baisak to Chaitra rent for 12 months; or Baisak to Aswin for six months.
16. We have no evidence as to the practice of the sherista of the plaintiff or his predecessors at this time when dealing with rents in the town or environs of Howrah. They may very well have used such a form of receipt for old tenancies and for new, and it may have been used because it was noncommittal. But that a tenant taking such a receipt is to be held as acknowledging that he has no greater right then that of a monthly tenant because he did not quarrel with the form of the receipt seems to me to be unreasonable and unjust.
17. It was contended for the plaintiff that the view taken by the learned Subordinate Judge of those rent receipts was a finding of fact binding upon this Court in second appeal and that even if he had mistaken the meaning or exceeded the meaning of the documents the question not being one of construction of a document of title, the error was not an error of law. I cannot however agree that under Dhanamal's case the question whether a tenancy is permanent is or involves a question of law for us and that at the same time the finding that the tenancy is a monthly one is a finding of pure fact by the Subordinate Judge. Let us see what the findings are.
18. The learned Judge does not seem to doubt that the rent was an annual rent, but he thinks that these receipts refer to a monthly tenancy under Section 106, T. P. Act. Under Section 107, T. P. Act, a contract to pay a yearly rent, if it be not contained in a registered lease will in some cases be inoperative under Section 106 to make the tenancy anything more than a monthly tenancy. But while this is doubtless possible under such rule or some special stipulation a monthly tenancy at a yearly rent is an anomaly and difficult to infer. In view of Section 2, T. P. Act, the opinion of the learned Subordinate Judge would seem to involve that the present tenancy does not go back before 1882, but is a renewed tenancy of later date to which the Act applied since it is quite certain that the Act did not cut down an old tenancy into a monthly one. That however as I read his judgment is not really his finding. He considers if I understand him aright that the receipts show that prior to 1882 the tenant had no higher right, but does not appreciate that Section 106 of the Act would have no application to the tenancy at all.
19. The learned Subordinate Judge does however say of these rent receipts:
At least the petitioners never acknowledged X>inanath as a permanent tenant but allowed him to stay on as a thicca tenant from month to month, a tenant-at-will. This is clear from the rent receipts filed by the defendants.
20. If this is a finding of fact based upon the unusual character rather than upon the necessary meaning of the receipt, it must mean that in say 1885 the tenant was known to be claiming a higher right and the landlord was not willing to admit it. I think the learned Subordinate Judge means also to find that the tenant knew his claim to be disputed. If that be so then in Dinanath's lifetime the landlord did not try conclusions with him but in 1911 raised the question against Bhagaban and postponed the issue till 1920, when he served notice in ejectment.
21. Upon the whole I cannot agree that the rent receipts have the meaning which the lower appellate Court has attached to them. I think that they are no evidence at all to show that the tenancy was being treated as a monthly tenancy and that the finding to this effect is partly due to the fact that the learned Subordinate Judge has interpreted them by Section 106 of the Act without appreciating that the section would not apply to any tenancy which originated before 1882. To hold on the basis of these receipts that in the eighties the landlord was disputing a claim to permanent right is I think a hazardous surmise. To negative such a claim a landlord must I think be less subtle and less ambiguous in the wording of his receipts.
22. Differing, as 1 think myself entitled to do, from the view taken by the learned Subordinate Judge of the rent receipts I think the correct inference in this case is that the tenancy was a permanent one which indeed, upon the same footing, would have been his view. The structures upon the land are I think substantial structures. Though not very costly ones, they are not of a character readily reconcilable with a precarious tenancy. The learned Subordinate Judge admits that there is some force in this contention. I do not think this force is lessened by the fact that Gourdas did not dedicate the ghar as a permanent temple when ho left --as I read the translation of the kabala of 1874 it is not clear that Gourdas built the pucca ghar himself.
23. In my judgment the other elements in this case are complete and strong to show that the tenancy was permanent. The ease law on this subject has been carefully laid before us, but I think that the principles upon which such oases as the present fall to be decided are now sufficiently well settled to make it unnecessary to discuss thorn once again in this judgment.
24. I would allow the appeal, set aside the decrees of Cuming, J. and the Subordinate Judge and restore the decree of the Munsif with costs throughout.
25. I agree.