1. This appeal arises out of a suit by which the plaintiff seeks to eject the defendant No. 1 from two plots of land adjoining one another, the bigger one covering an area of 2 bighas 13 cottas 10 chittaks and the smaller one an area of 11 cottas 15 chittaks upon the allegation that the defendant No. 1 had purchased the said two holdings without the knowledge and consent of the landlord from whom the plaintiff has taken mourashi mokarrari settlement of the holdings. The suit was dismissed by the learned Munsif and decreed on appeal by the learned Subordinate Judge.
2. The defendant No. 1 has appealed to this Court. It will be convenient to summarise his contentions with reference to the two holdings separately. As to the bigger jama it is contended:
1st.-That the learned Subordinate Judge was wrong in holding that the tenancy was for horticultural purposes where as he should have held that it was for residential purposes.
2nd.-If it was for residential purposes, then under the general law of the land as it stood before the Transfer of Property Act came into operation, or under the Transfer of Property Act itself, by one or other of which it must be governed, according as it is found as to when it came into existence, it is transferable, and so the defendant No. 1 has acquired a valid right and is not electable.
3rd.-Assuming that it was for horticultural purposes and it is governed by the Rent law as it stood before the Bengal Tenancy Act or by the Bengal Tenancy Act itself, the incidents, judged by these provisions, showed that the predecessors of the defendant No. 1 had acquired a permanent and transferable right therein, and so the defendant No. 1 is not liable to be ejected.
3. As for the smaller jama the contentions are as follows:
1st.- It should have been held that the tenancy was for residential purposes and not for purposes of horticulture as has been erroneously found by the learned Subordinate Judge.
2nd.-That if it was for residential purposes the defendant No. 1 has acquired a valid right by his purchase.
3rd.-That even if it was for horticultural purposes, its incident pointed to its transferable character, and, therefore, the defendant No. 1 is not liable to eviction.
4. Then there are two contentions which apply to both the jamas and they are these:
4th.-That the onus of proving the character of the jamas has been misplaced on the defendant.
5th.-That the facts found go to show that there was recognition of the tenancy of the defendant No. 1 and the learned Subordinate Judge was in error in holding, otherwise.
5. I propose to deal with the bigger jama first. The facts found by the learned Subordinate Judge are that this jama was described in the documents as consisting of 'bagat' land, that trees and vegetables were planted on it, that it was not a part of, nor did it constitute, one tenancy along with the homestead of the defendant No. 1's predecessor which lay close by, and that nobody ever lived on it. Upon these findings the learned Subordinate Judge came to the conclusion that the tenancy, the origin of which was unknown, must be held, having regard to the surrounding circumstances and the nature of its enjoyment, to have been for horticultural purposes. It is not possible for this Court upon these findings to come to a different conclusion. This ground, therefore, must fail. The second ground, based upon the assumption that the first one is well founded, also fails with it and it is unnecessary to discuss the authorities to which I was referred on the footing that the jama was one for residential purposes.
6. As to the third contention, the appellant's argument in substance is this: Undisputedly this jama has been held by the family of the Santras for a very long series of years, it is said for seven generations, and there was uniformity in the rate of rent; that these two outstanding facts establish its heritability and raise a presumption as to its permanency; that from the uniform payment of rent a presumption either under Section 50, Clause (2), Bengal Tenancy Act or at any rate analagous to it arises; that once it is found that the predecessors of the defendant No. 1 were ryots holding at a rent fixed in perpetuity the tenancy should be deemed under Section 18 of the Bengal Tenancy Act to be clothed with all the incidents of a permanent tenure and under Section 11 of the Act it is to be taken as being capable of being transferred and bequeathed in the same manner as any other immovable property and under Section 10 of the Act the defendant No. 1 is not ejectable except on the ground that he has committed a breach of a condition of the tenancy. Now it is clear upon the terms of Section 50, Clause (2) of the Bengal Tenancy Act that the presumption arising under that) section can only be availed of in a suit or proceeding under the Bengal Tenancy Act, and where the plaintiff sues for recovery of possession alleging that the defendant was a trespasser, and the defendant claimed to be a tenant, until the fact, that the defendant was a tenant, was made out the suit could not be said to be one under the Bengal Tenancy Act, The fact has to be made out independently of Section 50, that the suit is against a tenant, and until that is made out Section 50 has no application: Rasamoy Purkait v. Srinath Mayra (1902) 7 C.W.N. 132, Mahabir Persad v. Charles Fox (1909)9 C.L.J. 467, Buzlul Karim v. Satish Chandra Giri (1911)15 C.W.N. 752, Nityananda Pal v. Nanda Kumar Chowdhury (1911) 13 C.L.J. 415. It has, however, been held that although the statutory presumption cannot be availed of directly, the principle involved in that section is a useful guide to the Courts which may sometimes be relied upon. The cases however where this presumption has been relied upon are cases between a landlord and his admitted tenant. For instance in the case of Nanda Lal Goswami v. Atarmani Dassee (1908) 35 Cal. 763, the principle was invoked in a case in apportioning compensation money between the landlord and the tenant in a land acquisition proceeding. The principle involved in the section if it is not invested with the character of a presumption, only amounts to this that the fact that there has been uniformity in the rent that has been paid for a series of years has got to be considered in order to find out what inference it leads to, taken in conjunction with the other facts of the case. I have examined the principles upon which the oases cited at the Bar on this point have proceeded, viz., Port Canning and Land Improvement Co., Limited v. Katyani Debt A.I.R. 1919 P.C. 42, Nilratan Mondal v. Ismail Khan Mahomed (1905) 32 Cal. 51 and cases which have proceeded on similar lines; and as has been observed by the Judicial Committee in the case last cited ' the true question here, as in other similar cases, is whether the true inference from the facts is that the tenure is permanent or precarious, the burden of proof being on the tenant.' The two outstanding features of the present tenancy-and they are the only two that appear in the case-are that the tenancy has been held by the Santras for several generations- let us assume seven as alleged by the appellant and that the rent has been uniform for over 55 years; they may be sufficient for holding that the tenancy was heritable; but they are not sufficient in law, in the absence of any other circumstance, to show that the rent was fixed for ever or that the tenancy was a permanent one. Jagabandhu Saha v. Magnamoyi Dasi (1916) 44 Cal. 555 and Manmoth Nath Mitter v. Ananth Bandhu Pal (1919) 23 C.W.N. 201. As the holding has not been proved to be one with a fixed rate, the argument based on Sections 11 and 18 of the Bengal Tenancy Act cannot assist the appellant. This contention, therefore, in my opinion fails.
7. Turning then to the smaller jama, the finding of the learned Sub-Judge based on the description of it as ' raiyati bagat ' land, its situation close to other gardens and the payment of landlord's fees payable under the Bengal Tenancy Act, is that the tenancy was not for residential but for horticultural purposes. The reasoning of the learned Munsif based upon the finding of a few bricks on the land and its situation close to human habitation and within the limits of the Municipality have been sufficiently disposed of by the learned Subordinate Judge. It is difficult to say that this finding is wrong or unreasonable and, therefore the first two contentions put forward with regard to this jama cannot in my opinion prevail. It is conceded that nothing in the shape of ancient character or uniformity of rent for any long period has been proved to have existed in respect of it. The only thing that is pointed out is at the time of the transfer in favour of the appellant landlord's fee was paid but it has not been alleged that it has been accepted by the landlord. It may be observed that even if there was such acceptance it would not operate as an admission as to its permanence under the provisions of Section 18-B of the Bengal Tenancy Act, though it would certainly amount to a recognition of the transferee as a tenant. The third ground, therefore, cannot prevail.
8. Next I shall deal with the two contentions which are common to the two jamas. The first one of these relates to the onus of proof. It is true that the plaintiff claiming ejectment has a heavy onus to discharge, he must prove his title and to that extent the onus is entirely on him. As to the right of the defendant to hold the land, when there is no contract as between him and the plaintiff or any privity of contract as between the parties, the defendant also has to prove his right to remain on the land. The Judicial Committee in the case of Nilratan Mondal v. Ismail Khan Mahomed (1905) 32 Cal. 51 has observed, as already mentioned above 'the true question here, as in other oases, is whether the true inference from the facts is that the tenure is permanent or precarious, the burden of proof being on the tenant.' The same principle has been laid down in the case of Doya Chand Shaha v. Anund Chunder Sen Mozumdar (1887) 14 Cal. 382, Kripamoyi Dabia v. Durga Govind (1888) 15 Cal. 89, Raja Saheb Prehlad Sein v. Maharajah Rajendra Kishore Singh (1867-69) 12 M.I.A. 292 and Manmoth Kath Mitter v. Anath Bandhu Pal (1919) 23 C.W.N. 201. It is true that the authorities cited above relate to oases as between a landlord and his tenant; but there is no reason why the same principle will not apply to a case between an admitted tenant of a landlord and one of whose tenancy is repudiated. The view of onus taken by the learned Sub-Judge does not appear to me to be incorrect; and this ground also in my opinion cannot be sustained.
9. The other ground relates to recognition. With regard to this question, the matter stands thus: the plaintiff alleged in his plaint that the appellant made the purchases without the consent of the defendant No. 2 who was the landlord. The appellant's allegation in the written statement was that the plaintiff had got the defendant No. 2 under his influence and got him to execute a mokarrai mourashi patta in his favour, that the defendant No. 2 was not entitled to grant such a patta, that as far as the appellant had come to know the real owner of the property was the father of the defendant No. 2, that the appellant had made the purchase of the bigger jama with the knowledge and consent of the defendant No. 2, that he had cut trees from the bigger jama with the knowledge of the defendant No. 2, and his father, that on account of both the jamas, the defendant No. 2 and his father had, with the knowledge of their transfer, accepted rent from the appellant and, therefore, the suit for khas possession was not maintainable. The pleadings, therefore, amounted to an averment on behalf of the appellant that so far as he was aware the father of the defendant No. 2 was the real landlord but that in any case both the defendant No. 2 and his father had accepted rents from him with the knowledge that he was the transferee. The defendant No. 2 in his written statement alleged that the two jamas appertained to his zemindari: and were included in Touzi No. 267 of the Hooghly Collectorate. An issue was raised in the Court of first instance, being issue No. 2, which was worded thus: ' whether the defendant No. 2 or his father is the malik landlord of the land in suit.' This issue was raised presumably to determine the question as to whether the plaintiff had acquired any right by his patta from the defendant No. 2. The issue, however, was not pressed and the learned Munsif recorded his finding on this issue in the following words:- ' Defendant himself accepted dakhilas granted on behalf of defendant No. 2 and this issue is not pressed'. Now all the discussion that appears in the judgment of the learned Sub-Judge is confined to acts of the father of the defendant No. 2 and none on the part of the defendant No. 2 has been referred to at all. As this is not sufficient to dispose of the question whether there was recognition by the defendant No. 2, who is the ostensible landlord, I have examined the evidence in the case in order to see whether any specific act or conduct has been alleged with regard to him such as might lead to an inference of recognition of the appellant's tenancy by him. I have not found any evidence of act or conduct on the part of the defendant No. 2 and the appellant's case as to recognition, therefore rests entirely upon his payment of rent which was accepted by the landlord's gomastha and the granting of rent receipts to him by the latter, rent receipts which I shall presently deal with.
10. The dakhilas relied upon on the question of recognition are enumerated and set forth below:
(1) Exhibit B-l-Tenant-Late Panchanan Santra-Possessor Debendra Nath Santra 22 Pous 1322-Guzrat Satis Chandra Ghose. For 1324-Rs. 4-12-9.
(2) Exhibit B-2-Tenant-Late Pan-chanan Santra-Possessor Debendra Nath Santra 12th Bhadra-1323 Guzrat Satis Chandra Ghose. For 1323-Rs. 4-12-9.
(3) Exhibit B-4-Tenant-Late Pan-chanan Santra-Possessor Debendra Nath Santra 30 Aswin 1322-Guzrat Satis Chandra Ghose. For 1320 and 1321- Rs. 9-9-6.
(4) Exhibit B-5-Tenant-Late Pan-chanan Santra-Possessor Debendra Nath Santra 2 Kartik 1321-Guzrat Satis. Chandra Ghose. For 1318 and 1319-Rs. 9-9-6.
(5) Exhibit B-6-Tenant-Late Pan-chanan Santra-Possessor Debandra Nath Santra 24 Assar 1317-Guzrat Satis Chandra Ghose. For 1315-Rs. 4-12 9.
(6) Exhibit B-40-Tenant-Late Pan-chanan Pal-Possessor Ekkori Charan Ghose. 27 Bhadra 1325-Guzrat Satis Chandra Ghose. For 1325-Re. 1-9-121/2.
11. It will be seen that five of these relate to the bigger jama and one to the smaller one. The question is, do they prove recognition by the landlord of the transfer in favour of Satis Chandra Ghose. Recognition being a question of inference as to a state of mind on the part of the landlord it is open to us to enquire in second appeal as to whether the granting of dakhilas of the above description by the gomashta of the landlord in the absence of anything else, and where the gomashta had not been examined and the landlord too-by landlord I mean the defendant No. 2 and not his father-has not been examined on either side, would go to prove recognition.
12. Now the authorities bearing on this point are numerous and varied and it is unnecessary to refer to them except such as have been cited at the Bar or have a direct bearing on the present case. In the case of Naba Kumar Debt v. Behari Lal Sen (1907) 34 Cal. 902 which was cited on behalf of the appellant, the Judicial Committee, dealing with rent receipts which though not expressed describing the transferee of the tenure as a tenant of the holding, stated that the rent paid was the rent of the tenure, and the person paying was the occupier of it, and was paying on her account, held that there was a sufficient recognition of the transferee as tenant.. The present rent receipts are not of that description. Another case relied upon on behalf of the appellant is that of Baroda Churun Dutt v. Hemlata Dasi (1909) 13 C.W.N. 833. There an occupancy raiyat executed a usufructuary mortgage in favour of the person and the latter paid rent to the landlord who granted him rent receipts which stated that the rent was being received 'through him, the mortgagee.' This was held to be recognition of the mortgage. The next case referred to by the appellant is that of Matookdhari Sukul v. Jugdip Narain Singh (1915) 19 C.W.N. 1319 where it was held that the receipt by the landlord of rent, with or without protest, deposited by the mortgagee as such is a recognition of the rights of the mortgagee.. In the case of Prabhati Dasi v. Taibutannessa Choudhurani (1913) 19 C.L.J. 62, Sir Lawrence. Jenkins, C.J., observed as follows: -'I am inclined to think that Courts have-yielded too freely to the temptation of being blinded to realities by the words marfatdar and guzratdar and so the* true facts have Buffered. At the same time I am bound to admit that there are expressions in the cases which would suggest that where these words appear no-recognition can be inferred. I think, however, each case must be determined on its own circumstances, and the Courts should determine in each case whether, on a consideration of all the facts-not merely by giving undue weight to words used-a legal inference is or is not to be drawn that there has been a recognition establishing a relationship of landlord and tenant between one who has paid and; another who has received rent for a number of years.' This to my mind is the true position. Where landlord has expressly refused to grant receipts in the name of the transferee and granted them in the name of the old tenant describing him as marfatdar, it may at once be said there is no recognition. Such a case was the one of Manmatha Nath Mitter v. Anath Bandhu Pal (1919) 23 C.W.N. 201. In that case it was observed (at page 214) that 'the effect of the use of the word 'marfatdar' may vary according to the circumstances of each case on a consideration of all the facts of the case.' In the present case it is not stated in the rent receipts that the appellant was the possessor of the holdings, or that he had any interest therein; it was not stated that the rent was being paid by him on his own behalf. If that was stated the question would have arisen as to whether the gomashta had authority to grant the rent receipts in that way and the presumption would have arisen that he was so empowered unless there was evidence to the contrary. In my judgment the rent receipts, as they stand, without any other evidence at all do not furnish any evidence which may point to recognition of the transfer on the part of the landlord. It is immaterial whether the gomashta was authorised to grant receipts in that way or whether his action was repudiated by the father of the defendant No. 2. The other facts relied on by the learned Subordinate Judge also support his finding that there has been no recognition. This contention also in my opinion is not substantial.
13. The appeal, therefore, must be dismissed with costs.