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Ashutosh Lahiri Vs. Chandi Charan Mitra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal179
AppellantAshutosh Lahiri
RespondentChandi Charan Mitra
Cases ReferredAbdul Hakim Khan v. Elahi Baksha
Excerpt:
- .....succeeded in showing that the interest of the defendant is only that of a tenant at will or of a yearly tenant.7. another case has been referred to before us on behalf of the appellant and that is the case of chandi char an v. ashutosh a.i.r. 1926 cal. 558, in which, as i have already said the question as to the nature of another lease between the parties relating to an adjoining plot of land was considered by this court. that lease ran in these words:within the aforesaid jote, 6 kanis, by guess of land mentioned in the boundaries below, being contiguous to your basha, you want the same for making it ft part of the compound of your basha. hence rs. 3 being fixed as annual vent, i lease out the same to you. you will continue to possess and enjoy the aforesaid land after making the same.....
Judgment:

Mukerji, J.

1. This appeal arises out of a suit which was instituted by the plaintiff who is the appellant before us for recovery of khas possession in respect of a piece of land ejecting the defendant who had been holding the same. The suit was instituted after service on the defendant of a notice to quit on the footing that the tenancy which forms the subject-matter of the suit was a tenancy-at-will or a tenancy from year to year. The suit has been dismissed by both the Courts below. It is necessary to state quite shortly some of the facts relating to this case in order to appreciate the contention that has been urged on behalf of the appellant in this appeal.

2. The plot of land belonged to one Uma Charan Majumdar who transferred his rights therein to one Chandi Charan Ray Choudhury in 1313 B.S. and Chandi Charan Ray Choudhury in 1319 in his turn transferred the rights which he had acquired to one Ashutosh Lahiri who is the plaintiff-appellant before us. Prior to the transfer in favour of Chandi Charan, Uma Charan had by a pottah settled the disputed land with one Rajbullubh in 1304 B.S. Rajbullubh transferred the rights which he had obtained from Uma Charan to one Chandi Charan Mitra the defendant-respondent in this appeal. The Courts below, as I have stated, have dismissed the plaintiff's suit holding that the notice which had been served on the defendant was a valid one and had been properly served if it be taken that the plaintiff was entitled to eject the defendant as a tenant at-will-or a tenant from year to year. They were, however, of opinion that the tenancy that was created by the document of 1304, to which I have referred, was not a tenancy at will or a tenancy from year to year and it was a tenancy which in any event could enure for the lifetime of the grantee, the aforesaid Rajbullubh.

3. The principal contention urged on behalf of the appellant before us is to the effect that upon a proper construction of the lease of 1304 it should have been held by the Courts below that the interest of the defendant was nothing more than that of a tenant at will or a tenant from year to year. This contention is sought to be supported by reference to a number of decisions of this Court and also to the terms of the document itself. Reference has also been made to another case between the parties in respect of a piece of adjoining land. The question as to the nature of the interest which had been conveyed by this last mentioned document came up for consideration before this Court and was decided in one of the reported decisions upon which reliance was placed on behalf of the appellant. The document of 1304 purports to run in these words:

You having applied to get settlement off 6 kanis of land, as described in the schedule below for the purpose of constructing your basha, I hereby fix annual rent for the said 6 kanis of land at Rs. 8 and settle the same with you; you shall enjoy and possess the said land by constructing your basha and residing therein, regularly paying the rent. To this effect I execute this pottah.

4. It is clear therefore that the lease was not for any fixed term. There was no term of inheritance and it was a lease neither for a definite term nor one expressly for perpetuity. Having regard to the terms of the document which in themselves are not very clear it is competent to us to look into the surrounding circumstances, and the surrounding circumstances, as they were found by the Courts below, appear to have been these that the lessee was to build his dwelling house on the land; that at the time when the lease was granted a substantial sum was paid by the lessee to the lessor as nazarana or premium for the grant that after the execution of the lease the lessee erected, though, it is stated, with the permission of the lessor, some substantial structures upon the land and thereafter there were two transfers of the lessee's interest with regard to one of which at least the landlord's fees were paid by the transferee at the time when the kobala in respect of the transfer was registered.

5. The findings of the Courts below on the question as to whether there was acquiescence on the part of the lessor, with regard to the execution of the substantial structures on the land, are not clear and I do not propose to rest my judgment on any finding with regard, to that matter. Reading the lease, and taking into consideration the other matters which arise upon the findings to which I have referred, it seems to me that the intention of the parties was to make a grant in favour of the lessee which would enure for the lifetime of the lessee and so long as the lessee would regularly pay the rent in respect of the premises. Reliance has been placed on behalf of the appellant upon a number of decisions of this Court, to the more important of which I shall now refer. The first one is the case of Mohim Chandra Sarkar v. Anil Bandhu Adhikary [1909] 13 C.W.N. 513. That, however, was a case where there was a stipulation in the lease prohibiting the lessee from erecting masonry building or cutting down trees, and in this respect the lease in that case seems to have been of an entirely different nature from the lease now before us.

6. Another case referred to on behalf of the appellant is that of Abdul Hakim Khan v. Elahi Baksha : AIR1925Cal309 in which upon a review of most of the earlier decisions on the question as to the circumstances under which the permanency of a grant may be inferred or not, this Court laid down certain principles on which such permanency might be inferred. It may be that, judged by the test laid down in that case, the lease in question will fall short of the requisites necessary to show that in point of fact it was a permanent lease granted to the predecessor of the defendant, namely, Kajbullubh. That, however, is not the question for our consideration in the present appeal. The whole question here is as to whether the plaintiff has succeeded in showing that the interest of the defendant is only that of a tenant at will or of a yearly tenant.

7. Another case has been referred to before us on behalf of the appellant and that is the case of Chandi Char an v. Ashutosh A.I.R. 1926 Cal. 558, in which, as I have already said the question as to the nature of another lease between the parties relating to an adjoining plot of land was considered by this Court. That lease ran in these words:

Within the aforesaid jote, 6 kanis, by guess of land mentioned in the boundaries below, being contiguous to your basha, you want the same for making it ft part of the compound of your basha. Hence Rs. 3 being fixed as annual vent, I lease out the same to you. You will continue to possess and enjoy the aforesaid land after making the same part of the compound of your basha and paying rent regularly.

8. It was held in that case by this Court that even if the lease with which we are now dealing in this appeal might have created a permanent right to the plot of land covered by it, it did not necessarily follow that the same right was created in the other plot of land which adjoined the basha and to which the lease in that case related. It was held in that case that the plot of land was leased out to the defendant to be treated as a part of his compound; that it came within the purview of Section 106 of the Transfer of Property Act or rather the latter part of that section, and it was held that no permanent right was created by that lease. The terms of the document before us are different from those of the document which was considered by this Court in the case to which I have just referred : there the land was leased out for the purpose of being treated as a part of the compound of a basha; whereas in the present case it was leased out for the purpose of making a basha or homestead. The decision in that case, therefore, does not assist us in determining the question as to what are the rights of the parties under the lease which is the subject-matter for consideration here.

9. On behalf of the respondent it has been pointed out in the first place that the notice that was served upon him was not a valid one; but it is not necessary to go into that question in the view that I take of the lease that we have got to consider. It is not necessary to go further and find what are the exact rights of the parties under this lease. It is enough to say that it is not possible on a consideration of the terms of the lease or the circumstances to which I have already referred to hold that the lease had created only the interest of a tenant at will or of a yearly tenant. And in view of the terms of the lease it would be right, in ray opinion, to apply to it the general rule of construction which is to the effect that if a grant is made to a man for an indefinite period it enures generally speaking at least for the life-time of the grantee unless there were some words showing the intention that a heritable grant was made. It is enough for our purpose to say that we agree with the view taken by the Courts below to the effect that this tenancy under the lease is not a tenancy at will or a yearly tenancy. It is not necessary to decide the question as to whether the tenancy is a permanent tenancy or not because it is quite clear that the tenancy enures at east for the lifetime of the grantee Rajbullubh who appears to be alive at this time.

10. In this view of the matter I am of opinion that the decrees passed by the Courts below are correct and I dismiss the appeal with costs.

Greaves, J.

11. I agree.


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