1. This is an appeal by the plaintiffs and the question raised in this appeal is whether upon the facts found by the lower Appellate Court, the presumption that the tenancy is a permanent one is correct in law. The Munsiff held that the presumption did not arise but the Subordinate Judge has held that it did. The fact shortly stated are these:
2. Plaintiffs are the owners of a kaimi mokurarijote and the land in suit is a piece of bantu land situated within the Municipality of the town of Rajshahye and was let out to Golab Saha, the father of the defendant, above 44 or 45 years ago, by the mother of the plaintiffs apparently for dwelling purposes. Plaintiffs served a notice to quit on the defendants and after the expiry of the term bring this suit for khas possession of the lands, giving the defendants the option to remove the houses standing thereon, which, the plaintiffs allege, are of an unsubstantial character.
3. The defence of the defendants inter alia was to quote the words of the learned Munsiff, ' that the defendants and their predecessors-in-interest having resided on the disputed land for a long time by erecting pucca and kucha structures on payment of a uniform rate of rent and the tenancy having been treated as heritable, the jote in suit is a kaimi mourashi Mokurati one.'
4. The facts found by the Munsiff were:
(1) That the tenancy was 44 and 45 years old and its origin was not unknown. (2) That the rent paid was uniformly Rs. 5-10 as. per year. (3) That there was one case of succession from Golab to the defendants. (4) That Golab Saha, father of the defendant, built a house with mud walls and tiled roof, over which there were thatched chalas. Golab also constructed pucca staircase for the house and a pucca gateway. This house, which has been described as a morataghar by defendants' witnesses, fell down in the great earthquake, in 1304 B.S. The pucca gate was also destroyed by the earthquake. At present only the pucca steps of the morataghar exist. It is also established by the evidence of P.W. No. 4 that the defendants constructed a pucca privy on the land 7 or 8 years ago and that the privy is still in existence. The question is whether the structures raised by the defendants and their father can be called substantial structures. I am of opinion that the house built by Golab Saha cannot be called a substantial structure as the roof was not a pucca one but was covered with mud and required the protection of thatched chalas.
5. On these facts 'the Munsiff held that the defendants have failed to establish that the lease was a permanent one. The Munsiff further pointed out that there was no allegation by the defendants that the lease was a permanent one at its inception.
6. On appeal by the defendants, the Subordinate Judge has reversed the Munsiff's judgment and held that the facts justified the presumption of permanency of the tenure. As to the facts, the learned Subordinate Judge has agreed with the Munsiff as to his findings under heads 1 to 3 and although there is no difference opinion as to the nature of the structures on the land the learned Subordinate Judge says that-'As the land was let out for building, the presumption is that in its inception the holding was not a temporary-holding. Id the next place, it appears that defendants had a moratagahar i.e., house with mud walls and tiled roof, over which there were thatched chalas with pucca staircase and pucca gateway. There is also a pucca privy. The learned Munsiff says that the privy was constructed without the knowledge of the plaintiff. I do not agree to that view.
I am satisfied upon the evidence that plaintiffs had knowledge of the existence of the pucca privy. In my opinion all these structures are of a substantial character.
7. The Munsiff held that the defendants gave no evidence as regards the actual cost; incurred in constructing the house and other structures. The learned Subordinate Judge has not said anything as regards this matter. The Munsiff held that the structures were not of a substantial character, but the Subordinate Judge on the same facts says: 'In my opinion all these structures are of a substantial character.' There were no pucca buildings on the land; pucca steps and a brick-built privy within a Municipality are not, in my opinion, structures to which any reasonable landlord could object, so long as the tenancy subsisted.
8. As I have already observed the question raised in this appeal is, is a presumption of permanency of the tenancy justified upon the facts found by the learned Subordinate Judge. The question thus raised is a question of law and is open to correction in a second appeal.
9. The learned Subordinate Judge has mainly based his judgment upon the cases of Beni Madhub v. Jai Krishna (1869) 7 B.L.R. 152, and Durga Prasad v. Brindabun (1871) 7 B.L.R. 159, and the case of Nabu Mondal v. Cholim Mullik (1898) 25 Cal. 896 (F.B.) and he concludes by a bare reference to the cases of Upendra Krishna v. Ismil Khan (1904) 32 Cal. 41 and Nilratan v. Ismail Khan
10. Upon the question now at issue there are numerous cases of this Court and a number of decisions of the Judicial Committee of the Privy Council. It is somewhat strange that the learned Subordinate Judge has not noticed them. It is indeed true that the casts are so many that it is neither possible nor profitable to refer to so many cases, but it seems to me that the case of Beni Madhub v. Jai Krishna (1869) 7 B.L.R. 152, is hardly of any assistance in this matter. Sir Barnes Peacock when dealing with the question as to the permanency of the tenancy observed that 'the evidence showed that pucca buildings had been erected, and that the land had been held for upwards of 35 years and had descended from father to son, and the kabuliyat showed that the tenures were not merely of a temporary nature' and further on he said 'that in equity the plaintiff was not entitled to turn the defendant out of the land, because he stood by and saw the tenants erecting pucca buildings on the land, without any objection whatever. If he allowed the defendants to erect pucca buildings upon the land without objecting, it appears to me that he was bound in the same way in equity as if he granted them a pattah with the privilege of building pucca house on the land.' The decision in this case was based upon the terms of the lease and upon the principle of equitable estoppel. The question is different here.
11. As to the case of Durga Prosad v. Brindabun (1871) 7 B.L.R. 159, the passage quoted by the Subordinate Judge shows that the main fact which was relied upon was that the land 'was not given for any temporary purpose.' What these words were actually intended to mean it is impossible to find out. At any rate there is no finding as to the purpose precisely for which the lease was created at its inception and the main question raised and decided was that of the transferability of the tenancy.
12. The case of Nabu Mondal v. Cholim Mullik (1898) 25 Cal. 896 (F.B.) is helpful in so far as it gives us a list of most of the cases then available. The view of the learned Judge referring the case to the Full Bench was against the raising of a presumption of permanency merely upon long occupatin and ultimately the reference fell through without any decision by the Full Bench on the points referred to it. The cases of Upendra Krishna v. Ismil Khan (1904) 32 Cal. 41 and Nilratan v. Ismail Khun (1904) 32 Cal. 51, which, as I said before, were only mentioned by the Subordinate Judge, have no application here as I shall show later on.
13. The learned Vakil who appeared for the appellants submitted that the facts found do not justify the presumption and referred us to the cases of Lala Beni Ram v. Kundan Lal (1899) 21 All. 496, Rajah of Venkatagiri v. Narasayya (1910) 37 Mad. 1, Secretary of State v. Luchmehar Singh (1889) 16 Cal. 223, J. Winterscale v. Sarat Chandra (1908) 8 C.W.N. 155, Seturatnam v. Venkatachela A.I.R. 1920 P.C. 67, and Nainapillai v. Ramanathan A.I.R. 1924 P.C. 65. The learned Vakil for the appellants argued that in the present case the origin of the tenancy was not unknown; there were no substantial buildings on the land, therefore there was no justification for raising the presumption of permanency of the tenure. The learned Vakil for the respondents, in addition to the cases quoted by the Subordinate Judge, cited the following cases:-William Grant v. Mrs. Robinson (1906)11 C.W.N. 242 and Moharam Chaprasi V. Telamuddin Khan (1911) 16 C.W.N, 567 and contended that the facts found in the present case brought it within the principle laid down in these cases.
14. As I have already observed the cases on the point, as one could expect, are not only many but are not easily reconcilable. In these circumstances it may be said, if that can be said of a question of law, that the circumstances of each case must determine whether the presumption should be made or not as it is impossible to give any exhaustive enumeration of the facts which shall or shall not justify the presumption to be drawn.
15. I shall endeavour to find out from some of the leading cases and the general law what are the principles upon which the Court has proceeded in deciding the question now raised. I must not, however, be understood to attempt an exhaustive analysis of all the cases.
16. I shall now briefly refer to some of the principles which underlie a question of this nature as between landlord and tenant and I am here speaking only of the non-agricultural holdings created before the Transfer of Property Act of 1882.
17. When a tenant claims to hold land as a tenant under the landlord, the tenant must prove the nature and the extent of the interest which the landlord, the owner of the full rights, granted to him and thereby put a limitation to his own rights. In this connection I shall quote a few passages from the decision of Lord Hob-house in the case of Secretary of State v. Luchmeshar Singh (1889) 16 Cal. 223. His Lordship says:-' The Government undoubtedly are tenants of the Darbhanga Raj. It is for them to show why the landlord may not recover his property, and they can only do that by proving that there is some agreement between them and their landlord that they shall have something more than the ordinary tenancy-at-will or from year to year. All they offer is some conjecture of such an agreement founded simply on their long possession at a uniform rate of payment. If we could not find out the origin of these things there would be strength in that argument, but as the origin of them is known the argument looses its force. In fact the possession is not difficult to explain in other ways. It is not the business of the plaintiff to explain the possession, it is the business of the defendant to show that it leads to the inference of a perpetual tenancy.' The Judicial Committee referred to this case and re-stated the law in these words:-'That permanent right of occupancy can only be obtained by a tenant by custom or by a grant from an owner of the land who happens to have power to grant such a right or under an Act of the Legislature.' Nainapillai v. Ramanathan A.I.R. 1924 P.C. 65. No person can, after the Transfer of Property Act came into operation, claim to hold a permanent tenancy in what is called bastu land unless it was created by a written and registered lease. It is common knowledge that numerous leases of the class, we are dealing with now, were and are daily created in Bengal more especially in the towns, and one may safely say that 50 years back and thereafter written leases had come into general use and except under special circumstances, no tenant would consider it safe to take a permanent lease without a registered deed evidencing the demise, particularly when the tenant paid substantial premium, or intended to spend large sums on the land for building and other purposes. The granting of a permanent right in land is a matter of considerable importance and usually is evidenced by appropriate deeds. The Transfer of Property Act must have had regard to the habits and practice of the people of Bengal when it was made applicable to them. Before the Transfer of Property Act there was no statute dealing with homestead land as distinguished from agricultural land, as to which numerous statutes, beginning with the regulations passed at the time of the Permanent Settlement down to the passing of the Tenancy Act in Bengal in 1885, regulate the relationship between the landlords and the tenants. There are numerous judicial decisions with reference to agricultural land and they have no direct bearing on the question now at issue.
18. The cases, some of which I shall presently discuss, proceed upon two broad principles and some of them rely upon a combination of both, whenever the inference of permanency of the tenancy has been made in favour of the tenant when the terms of the original tenancy could not be directly proved. The first principle is, that in cases where the origin of the tenancy is unknown, and its inception is lost in antiquity the principle of a lost grant has been invoked by the tenant and from the conduct of the parties and the surrounding circumstances, the Court has been asked to presume that the tenancy was a permanent one. The conduct of the landlord in recognising succession, transfer and in standing by when pucca buildings have been raised upon the land, have been mainly relied on in finding out the terms of the lease at its inception.
19. The second principle relied upon is that of equitable estoppel against the landlord, from showing that the lease was a terminable one.
20. The first of those principles was relied upon by the tenant in the case already cited and reported in Secretary of State v. Luchmeshar Singh (1889) 16 Cal. 223. Their Lordships refused to draw the inference although in that case the lease was created in 1764 and one uniform rent was paid for 80 years before the dispute arose. This principle was also relied upon by the tenant but this Court refused to draw the inference in the following cases:
In the well known case of Prosunno Coomaree v. Rutton (1877) 3 Cal. 696, Sir Richard Garth on a careful consideration of the earlier cases, laid down the law in the following words:-''The truth is that the terms of a holding as between landlord and tenant must always be matter of contract either expressed or implied,' then again, 'there is no law, of which we are aware in this country which converts a holding-at-will or from year to year or for a term of years into a permanent tenure merely because the tenant without any arrangement with his landlord chooses to build a dwelling house upon land demised.
21. In this case the defendants, their father and grandfather had occupied the land for fifty or sixty years and used it as a homestead consisting of a house and fruit trees. Sir Richard Garth refused to draw the inference of permanency in this case although the origin of the tenancy was unknown.
22. This case was followed in a number of subsequent cases and I shall refer to some of them only: Tarukpodo Ghosal v. Shyama Charon Napit (1881) 8 C.L.R. 50, Prosunno v. Jagannath (1881) 10 C.L.R. 25 and Rakhal Das v. Di-nomayi (1889) 16 Cal. 652. In these cases the Court refused to presume the permanency of the holding.
23. In the cases, which I shall next discuss the principle was relied upon and the Court drew the inference in favour of the parmanency of the tenancy. I have already discussed the case of Beni Madhub v. Jai Krishna (1869) 7 B.L.R. 152. In the case of Prosunno Kumar Chatterjee v. Jagannath Bysack (1881) 10 C.L.R. 25. Sir Richard Garth discussed some of the cases and distinguishing the case of Prosunno Coomaree v. Rutton (1877) 3 Cal. 696 held at page 30: 'No doubt if land is let out for building pucca houses upon it, or if the tenant with knowledge of the landlord does in fact lay out large sums upon it in buildings or other substantial improvements, that fact, coupled with a long continued enjoyment of the property by the tenant or his predecessors-in-title might justify any Court in presuming a permanent grant, especially if the origin of the tenancy could not be ascertained. But the mere circumstance of a tenant occupying buildings upon property would not justify such presumption, unless it could be shown that they were erected by him or his predecessors, because a landlord might let property of that kind in the same way as agricultural land, at will, or from year to year.' In the case of Gungadhur Sikdar v. Ayimuddin (1882) 8 Cal. 960, Sir Richard (Garth again distinguished the case of Prosunno Coomaree v. Rutton (1877) 3 Cal. 696 and held that (at p. 962 [of 8 Cal.] )-'It was apparently let upwards of sixty years ago for building purposes; because it is found that, after the grant (whatever it was), these buildings, which are of a substantial character, were erected some sixty years ago by the defendants' ancestors, and that they and their ancestors have lived there ever since. Under these circumstances we think that the Court below were at liberty to presume, if they thought fit, that the land was granted for building purposes, and that the grant itself was of a permanent character. These two cases might be considered as laying down the principle clearly and definitely. These cases were followed by Sir F. Maclean, C.J., in the case of Grant v. Robinson (1906)11 C.W.N. 242 and the circumstances from which the inference was drawn were that 'the original nature of the grant was unknown, the defendants were tenants on the land and were in occupation for nearly sixty years and that they raised substantial structures on the land and the grant was for the purpose of residence.' These cases really settled the grounds upon which such a presumption in favour of the tenant may be drawn and the subsequent cases which followed these cases stressed the facts that the origin of the tenancy must be unknown and that substantial pucca structures must be built without objection long before the controversy arose. The present case does not come within the principle so laid down.
24. In the case of Moharam Chaprasi v. Telumuddin Khan (1911) 16 C.W.N. 567, their Lordships found that the origin of the tenancy was unknown, the rent never varied, the landlord treated the tenancy as heritable and that the land was let out for residential purposes and relied upon the authority of a number of cases both of this Court and of the Judicial Committee. Their Lordships summed up as follows: 'There can be no doubt that in view of the decision of this Court in the cases of Dinendra v. Tituram (1903) 30 Cal. 801 and Winterscale v. Sarat Chandra (1908) 8 C.W.N. 155 and of the Judicial Commit-tee in the cases of Baboo Gopal Lall v. Tilluch Chander (1865) 10 M.I.A. 183, Dhunput v. Gomman (1867) 11 M.I.A. 433, Ram Chandra v. Jugesh Chandra (1873)12 B.L.R. 229, Satyasaran v. Mahesh Chandra (1868) 12 M.I.A. 263, Upendra Krishna v. Ismail Khan (1904) 32 Cal. 41, Nilratan v. Ismail Khan (1904) 32 Cal. 51, and Naba Kumari v. Behari Lall (1907) 34 Cal. 202, the inference is irresistible that the tenancy in its inception was of a permanent character. The Subordinate Judge himself indeed would have arrived at the same conclusion but for the error into which he fell when he assumed that to bring a case within this rule, it was essential to establish that there were permanent structures on the land. But the decision of the Judicial Committee in Naba Kumari v. Behari Lall (1907) 34 Cal. 202 shows conclusively that although the presence of permanent structures on land may be a very important factor, it is by no means essential to establish that tenancy in its inception was of a permanent character.'
25. This case for the first time definitely held that a tenancy in homestead land, without any substantial structures built on it by the tenant, may be presumed to be a permanent tenancy even in the absence of any admission by the landlord, or any circumstance importing permanency of tenure.
26. The cases cited in support of that view, it is respectfully submitted, lend no support to that proposition. The first case cited is the case of Dinendra v. Tituram (1903) 30 Cal. 801 and relates to a question of apportionment of compensation money and has little to do with question now in issue.
27. The next case of Winterscale v. Sarat Chandra (1908) 8 C.W.N. 155 was decided on the ground that the landlord was aware of a kobala and of a pattah, from the terms of which the Court presumed that the landlord was bound to recognise the permanency of the tenure. The next four cases are decisions of the Judicial Committee in which the question of the permanency of agricultural tenures was discussed and decided, and, as I have shown before, this class of tenancy stands upon a different footing altogether. The case of Nilratan v. Ismail Khan (1904) 32 Cal. 51 which is next referred to, deals no doubt with tenancy in homestead land, but in that case the head-note itself shows this, 'that the execution and exchange of the pattah and kabuliyat show knowledge and recognition on the landlord's part of the transmission of permanent rights. Obviously this case has nothing to do with the proposition under consideration in this case. The last case of Naba Kumari v. Behari Lal (1907) 34 Cal. 202 deals also with an agricultural tenure and the decision is mainly based on an admission by the landlord. It seems to me therefore the case of Moharam Chaprasi v. Telamuddin Khan (1911) 16 C.W.N. 567 went beyond the rule which had been adopted by the leading cases which I have already discussed, and they show that in these cases permanency was presumed on the theory of a lost grant.
28. The fact that the tenant is allowed to continue in possession of lands for generations, without alteration of the rent, is of common occurrence in this country and is usually attributable to the reluctance of a landlord to eject a tenant from his home so long as he does not make himself objectionable and regularly pays his rent. Mere forbearance to enhance the rent or eject the tenant, where the right exists, means nothing. If transfers are made, describing the tenancy as permanent, and the landlord recognises the transfer, then the landlord allows creation of evidence by conduct, otherwise transfer of tenancy of homestead land would also be ordinarily no evidence of permanency of the tenancy.
29. The building of pucca houses and that to the knowledge of the landlord is evidence of the assertion of the tenant of his belief that the tenancy at its inception, which is unknown, was permanent. In this connection, no question of estoppel or acquiescence arises, the case depends upon the principle of inference of the term of a lost grant.
30. The second principle, namely, of estoppel against landlord, the Privy Council deals with in the case of Beni v. Kundun (1899) 21 All. 496. The decision runs thus:
In order to raise the equitable estoppel which was enforced against the appellants by both the Appellate Courts below, it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence from interfering or in active intervention, was sufficient to justify the legal inference that they had by plain implication contracted that the right of tenancy under which the lessees originally obtained possession of the land should be changed into a perpetual right of occupation.
Their Lordships have had no difficulty in coming to the conclusion that the respondents have failed to discharge themselves of that onus. If there be one point settled in the equity law of England, it is that, in circumstances similar to those of the present case, the mere erection by the tenant of permanent structures upon the land let to him, in the knowledge of and without interference by his lessor, will not suffice to raise the equitable right against the latter which has been affirmed by the Courts below.' Lord Watson, in discussing the case of Ramsden v. Dyson (1866) 1 H.L. 141, the leading authority in the law of England quoted the following passage from the judgment of the Lord Chancellor (Lord Cranworth), Beni v. Kundun (1899) 21 All. 496 ''It follows as a corollary from these rules, or perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has terminated. He knew the extent of his interest, and it was his folly to expend money upon a title which ho knew would or might soon come to an end.
31. In order to avail himself of the equitable estoppel against his landlord, the tenant is bound to prove special circumstances, the mere building of a costly structure is not enough. In the present case the principle of equitable estoppel was not relied upon and could not be.
32. An analysis of the cases cited before, in which presumption of permanency was made, shows that the following elements existed in these cases, viz., first, the origin of a tenancy for residential purpose must be unknown; secondly, existence of permanent pucca buildings on the lands built long before any controversy arises and that to the knowledge of the landlord; thirdly, uniform payment of rent: fourthly, recognition of successions and transfer by the landlord. Many cases were decided upon the admission by landlords as to permanency of the tenure in various ways but these cases are based on a different consideration as also the cases in which an equitable estoppel is raised against the landlord. It seems to us that the absence of either of the elements Nos. 1 and 2 as stated above would be ordinarily fatal to any claim of permanency on the theory of lost grant.
33. Absence of the 3rd and the 4th elements usually would raise difficulties in the way of raising the presumption, but may not be decisive it there are other circumstances in aid of the presumption.
34. In the case now before us, both the Courts have agreed in holding that the origin of the tenancy was not unknown and no evidence was adduced to prove its terms. Absence of written lease cannot improve the position of the tenant, because a tenant must know under what terms he holds the land of his lessor. At the time, when the building was; first constructed, the tenancy was one in which to presumption in favour of the tenant existed and the tenancy in the absence of proof of any definite terms of permanency would be at best one from year to year. On this ground alone, we think that the presumption of permanency raised by the lower Appellate Court is erroneous and the case of Moharam Chaprasi v. Telamuddin Khan (1911) 16 C.W.N. 567 is distinguishable. Upon toe findings of the lower Appellate Court it appears to us that there were no substantial pucca buildings on the land as understood in the cases in which the presumption has been sustained and some of which 1 have already discussed. In the circumstance of this case, we do not think the inference of permanency is justifiable. The result is that the judgment and decree of the lower Appellate Court is set aside and those of the Munsif are restored with costs in all Courts.
35. I agree.