1. This is an appeal by the plaintiff from the decree of Pankridge, J., dismissing his suit. The premises, No. 187 Darmahatta Street, form part of the estate of the late Akhoy Kumar Ghose of which the defendant is the administratix. From 1910 these premises were let to the firm of Kalicharan Udit Narayan as monthly tenants. These monthly tenants having erected certain pucca buildings thereon, assigned or conveyed to the plaintiff their interest in the premises and in the structures by a deed dated 8th December 1921. In December 1927, the defendant having brought an ejectment suit, obtained possession of the premises in execution, but the decree in ejectment was, by consent, vacated on 3rd February 1928 by an order passed in appeal therefrom.
2. In connexion with these proceedings the present plaintiff, on 21st December 1927, had by his solicitors written denying the right of the landlady to the structures. Although the decree had been vacated, the plaintiff never got back possession; it appears that another tenant, one Harnandan, had been let into possession in the meanwhile and remained in possession till 1932. The landlady however on 12th March 1928, gave a valid notice to quit and the tenancy determined with effect from 13th April 1928. The plaintiff brought the present suit on 10th December 1930 to recover possession of the buildings and structures erected by his predecessors in-title on the land, or, in the alternative, the value thereof, with other reliefs. Two issues were contested before the learned Judge and before us. The first is an issue of fact. The plaintiff says that when he received the notice to quit in April 1928, it was served on him personally, that he then claimed the right to remove the structures, that he was referred to the landlady's manager, Jotindra Mohan Mitter, and made his claim to be permitted to remove the structures, but his claim was refused. The learned Judge has disbelieved this story which depends entirely on the oral testimony of the plaintiff. The interview is denied by Jotindra Mohan Mitter and the learned Judge considers that the correspondence of December 1927 shows that if any claim had been refused a solicitor's letter would have been sure to follow. Mr. A.K. Roy for the plaintiff-appellant has taken us through the evidence in an endeavour to persuade us that the learned Judge's finding of fact was wrong. I am however of opinion that no exception can be taken to it and that it is quite impossible for the Court of appeal to find that the plaintiff on this issue has proved his case. There is a direct conflict of oral testimony between the plaintiff and the manager and there is such corroboration of the plaintiff's story as would entitle the Court of appeal to differ from the opinion of the learned Judge who saw the witnesses.
3. The second issue is one of law. Assuming that the plaintiff's tenancy determined in April 1928, can the plaintiff, in this suit of 10th December 1930, assert a claim to recovery of possession of the structures, cr to the value thereof? Before the Transfer of Property Act of 1882, the rule of law to be applied as between landlord and tenant to structures built by the tenant upon the lands demised was more open to dispute as regards property in Calcutta than as regards property in the mofussil. In Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 it was held, upon a consideration of Hindu and Mahomedan law, that the English maxim quicquid plantatur was not in accordance with the usages and customs of the country, and it was accordingly laid down as a general rule that a tenant, or indeed any one except a mere trespasser, is entitled if he has erected buildings on the land, 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 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.
4. It was afterwards considered, in Juggut Mohan v. Dwarka Nath (1882) 8 Cal 582 that this rule was laid down as a rule of equity and good conscience to be generally observed in the mofussil, rather than a rate of Hindu law or Mahomedan law applicable only when Hindu law or Mahomedan law was the personal law of the parties or of the defendant. In that case it was suggested that in Calcutta in any case in which the personal law of the parties was not shown to apply the law of equity and good conscience which was administered by the Supreme Court, that is, generally speaking, the English law, would govern the matter. In 1880 Wilson, J., in Russick Loll v. Lokenath (1880) 5 Cal 688 had decided the case on the footing that a tenancy created by contract was required by Section 17 of 21, George III, Cap. 70(now Section 17, Government of India Act) to be dealt with by the personal law of the parties. He applied the principle of Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 to a tenancy in Calcutta as being Hindu law.
5. Now the Transfer of Property Act of 1882 was a Code which bad for its object the enactment of a common law. If the right to buildings in Calcutta is to depend upon the personal law of the parties, or of the defendant, it is evident that great confusion would arise. In Section 108, T.P. Act, the legislature set out what were in the absence of contract, or local usage, to be the rights and liabilities of lessor and lessee in a number of cardinal matters; and under 'Rights and Liabilities of the Lesse,' Clause (h) enacted as follows:
The lessee may remove at any time during: the continuance of the lease all things which he has attached to the earth, provided he leaves the property in the state in which he recieved it.
6. This is the law under which the present case falls, though in 1929 Clause (h) was amended to run as follows:
The lessee may, even after the determination of the lease, remove at any time whilst he is in possession of the property leased, but not after Wards, all things which he has attached to the earth provided he leaves the property in the state in which he recieved it.
7. Now, the question before us is whether, in addition to the right given to the tenant by Clause (h), Section 108, as enacted in 1882, to remove the fixtures during the term, a tenant to whom the statute applies has the right declared in Thakur Chander Paramanik's case (1866) Beng LRSup Vol 595 to be applicable to those cases in which the builder during the continuance of any estate he may possess, the right, namely-to remove the strictures unless the landlord elects to take the buildings on paying compensation. If the answer to this question is 'yes' further considerations will arise as to the applicability of Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 to the town of Calcutta. In Kanai Lal v. Rassikhal AIR 1914 Cal 896, a Division Bench of this Court had before it a case of a tenancy created by the mortgagor after the mortgage. The mortgagee under the mortgage decree sold the property so that the tenancy was suddenly determined without any opportunity to the tenants to remove the buildings. The Court appears to have considered that the rule in Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 might be regarded as a local usage within the meaning of Section 108; and in any case considered it equitable that in the circumstances the tenant should be allowed to remove the buildings. It is however in my judgment, reasonably clear that the rule in Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 was not laid down as a local usage, and it is not possible, upon any view, to regard that rule as a local usage of the city of Calcutta. Such a case might be made by evidence or by prior decisions establishing the usage so as to make it judicially notorious Under the Transfer of Property Act, the question of construction however still remains. Are the provisions of Clause (h) intended to be a complete statement or definition of the tenant's right to remove the fixtures, or is the clause limited to the question: What can the tenant do as regards fixtures during the term leaving his rights after the tenancy has ceased to be determined by a consideration of the pre-existing case law? In my judgment, Cl, (h) was intended to be a complete statement of the tenant's right as regards removal of fixtures.
8. The legislature did not think fit to approve the quicquid plantatur rule; it thought fit to enact a rule which might I think be intelligibly stated very shortly in terms of English law, namely, that all fixtures were to be tenant's fixtures. It did not intend that if the right given by Clause (h) had been exhausted, the tenant was to have a further right to remove the fixtures, making out his right by the personal law or by the general rule of equity and good conscience which had hitherto prevailed. This matter was discussed in Sheik Hussain v. Govardhandas (1898) 20 Bom 1, though in that case it would appear that the appellant's claim was for compensation and not a claim to be allowed to remove the buildings. In Ismai Kani v. Nazar Ali (1904) 27 Bom 211, a case decided upon the law prior to the passing of the Transfer of Property Act, it was held that under Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 the right of the tenant was the right to remove fixtures and not the right to claim compensation for them on vacation, and it was observed that when the Transfer of Property Act was 'enacted this rule was adopted by the legislature 'in Section 108(h)' 'and that the rules laid down by the Transfer of Property Act, substantially reproduce the law as it stood before the Act.' It is however note worthy that Clause (h), Section 108 only' provides for the tenant removing 'during the continuance of the lease' all things which he may have attached to the land, and nothing is said as 'to the rights of the parties in respect of such' things after the determination of the lease, if 'they have not already been removed by the tenant'. The question may arise whether the tenant forfeits 'all his rights in such things if he has not so 'removed them, and in the absence of any contract' on the point, the question will have to be solved with reference to 'local usage' whatever may be the precise sense in which that expression is used in 'S. 108'. This case seems to be the origin of the suggestion that the rule in Thakoor Chander Paramanik's case (1866) Beng LRSup Vol 595 may be regarded as a local usage and even the Hindu law and the Mohamedan law referred to in that case might be regarded as a particular local usage.
9. In 1913 the case of Angamal v. M.S. Aslami Sahib (1915) 38 Mad 710 was decided by the Madras High Court on Letters Patent appeal. In that case a lady who had built a house upon the land was subject to a month s notice to quit. The landlord filed a suit in ejectment, the tenant claimed a right to the superstructure built by her or its value. The landlord appears at one stage to have given the tenant notice to remove the structure within a fortnight but this does not seem to have affected the decision. She did not do so but instituted a suit to declare that she was the owner of the house and that she was entitled to compensation for it or should be allowed to remove the structure. It was held by a majority that the tenant was entitled to a reasonable time after the end of the tenancy to remove the structure. But White, C.J., considered that under Section 108, Clause (h), T. P, Act, the tenant was not entitled to remove the building after the determination of the tenancy. He was of opinion that even assuming that by the previous law the lessor's right to take the building after the expiration of the tenancy was subject to lessee's right to compensation, the law was altered by Section 108(h), T.P. Act, and he approved the statement in a well known text book: 'Under the terms of the clause, however the tenant is no longer entitled to the alternative' relief. He must remove or forgo the materials 'which be is entitled to, unless he can establish local usage or make out a case of estoppel against the landlord'. In this view the learned Chief Justice concurred with Wallis, J., the trial Judge, that the right to remove a building is restricted to the duration of the lease. Sankaran Nair, J.'s reasoning was to the effect (a) that Clause (h) is only an enabling provision; (b) that the opening words of Section 108 are to be read solely as taking away the tenant's right for removal during the lease in cases where the contract or local usage disallows such right, and (c) that the section does not touch the rights of the parties after the term has come to an end. The last proposition would in my opinion being back into Presidency towns the rule of the personal law as in Rassiklall's case (1880) 5 Cal 688 and the difficulties discussed in Jagunt Mohint's case (1882) 8 Cal 582 and Dunia Lal v. Gopi Nath (1895) 22 Cal 820. While the section is somewhat ambiguously worded, I consider that the intention of Clause (h) was to declare the law and to substitute for a law dependent upon the personal law of the parties or general considerations of equity a definite principle.
10. The legislature did not, in my judgment, intend to clear up the matter during the continuance of the term, and after the term to leave it, as under the decision of Wilson, J., in Rassiklall's case (1880) 5 Cal 688, it remained a question of Hindu or Mahomedan lavs, according to the personal law of the parties. Nor did it intend to leave open as regards any point of time the question whether in a Presidency town the rule of equity to be applied was different from the rule to be applied in the mofussil. It established a principle inconsistent with the principle of quicquid plantatur by declaring the tenant's right to remove, but it limited and defined the tenant's right to remove a right to be exercised during the term. In so doing it failed to notice that cases of hardship might arise where a tenancy was suddenty determined, e.g., by a mortgagee's sale, by the action of Government in land acquisition proceedings. Even in more ordinary cased a practice grew up to postpone execution under ejectment decrees in order to enable the tenant to remove structures erected by him. The limit produced difficulties and these difficulties were the reason of the amendment of 1929. It is clear that Clause (h) as amended negatives any right to remove after the time limited by the clause. The present case falls to be decided by the unamended clause but in my judgment no new principle was introduced by the amendment. It extended the period within which the lessee could remove beyond the 'continuance of the lease' to any further time during which the lessee is in possession of the property leased, but did nothing more. After all the tenant's right to remove is not two rights: (1) to remove during the term and (2) to remove after the term. In the original Clause (h) I think the phrase, during the continuance of the lease has a negative value, that the right to remove was intended to be declared as qualified thereby.
11. As in the present case the time between 13th April 1928 and 10th December 1930 is not in any way accounted for the plaintiff cannot claim to be within reasonable time after the expiry of the lease. Even on the view upon which Angammal v. M.M.S. Aslami Sahib (1915) 38 Mad 710 was finally decided, in accordance with the opinion of Miller, J., the plaintiff's case must fail and this appeal be dismissed with costs.
12. I agree.