1. This appeal arises out of a suit brought by the plaintiff as mutwali of the Hooghly Imambara for a declaration that the defendant has no permanent right in respect of the land referred to in the plaint and for a mandatory injunction that certain walls which had been erected by the defendant should be demolished by him and for a permanent injunction restraining the defendant from making any permanent structure on the land in question, The defendant in his written statement urged that the jama of the land in question had been fixed at Re. 1 13 as. 10 gds. from before the decennial settlement and that the holding had been in the occupation of tenant on payment of rent at a uniform rate for a long period and that it had been transferred on several occasions at auction sales and by mortgages and conveyances to the knowledge of the landlord. He also stated in his written statement that if it was found that the holding in question was included within the wakf estate of the Hooghly Imambara, then it should be held to have been in existence from before the creation of the wakf estate. The learned Munsif who tried the case in the first instance came to the conclusion that the plaintiff was entitled to a declaration that the defendant had no permanent rights whatsoever in respect of the land in suit and that he should be restrained from erecting any fresh permanent structure on the land. As regards the existing structures the Munsif held that they should remain. On appeal by the defendant, the lower Appellate Court has held that the defendant's tenure was of a permanent nature and that the buildings on the land bad been erected to the knowledge of the landlord and that in the circumstances the suit should stand dismissed with costs. The mutwali has now appealed to this Court, and on his behalf it has been contended that having regard to the fact that be is the mutwali of a wakf estate, it should have been held that under the Muhammadan Law he or his predecessor-in-interest had no power whatsoever to grant any permanent interest in respect of any land within the ambit of the wakf estate. In the second place, it has been urged that on the facts found, the presumption of permanency which has been drawn by the lower Appellate Court is wrong.
2. As far as we can gather from the judgments of the two Courts below, there is no document produced in this case showing the origin of the tenancy or the incidents of the tenancy at its inception. In the absence of any such document we are left to find out what the nature of the tenancy was and is from the evidence of the mode of dealing with the demised land and from the acts and conduct of the parties during such period. It is settled law [see the case of Ismail Khan v. Jaigun Bibi 27 C. 570 : 4 C.W.N. 210 : 14 Ind. Dec. (N.S.) 374] that in the absence of any governing document in oases of this description, the evidence of the mode of dealing with the demised land and the acts and the conduct of the parties constitute the best, if nob the only, evidence for the purpose of proving the nature of the tenancy. The documents such as we have in this case are Exs. C,B and B I. Ex. (C) is a sale-certificate showing that the holding in question had been brought to sale in execution of a decree for arrears of rent at the instance of the landlord, namely, the then mutwali, and that it was purchased some time in September 1884, by one Alimuddin. It appears from the next exhibit in order of date that Alimuddin sold the holding to one Ram Chander Das on or about the 15th November 1884. Then there is Ex. (B), dated the 26th June 1894, from which it appears that Ram Chander Das sold the property in question to the present defendant. There is no doubt that Ram Chander Das was recognised by the landlord. There is also no doubt that after the sale to the present defendant on the 26th June 1894 the rent which previously stood at Re. 1 13 as. 10 gds. was raised to Rs. 3 per annum. There is not in this case, as is to be found in various cases in the reports, a series of successions and a series of recognitions by the landlord, the rent being allowed to continue at a uniform rate and without any variation for a long series of years. The documents, so far as we can see, are of modern times and besides the circumstances to which we have alluded, there are no other circumstances to which the tenant can point as showing that his case is within the principle of the cases decided by their Lordships of the Judicial Committee where a permanent grant has been inferred from a series of successions and transfers followed by recognition. The defendant tenant points out, however, that there are permanent structures on the land and that some of them were erected about 20 years ago and he has invited us to infer from these circumstances that the tenancy was of a permanent character and that if it were not permanent he would not have been allowed to erect permanent structures on the land.
3. Now, to start with, the nature of the tenancy was perfectly well-known to the defendant. That it was so is apparent from paras. 7 and 8 of his written statement. In the second place, it is settled law that in order that the tenant might avail himself of the plea of acquiescence or estoppel, it is necessary for the tenant-defendant to show that in spending money for the erection of buildings of a permanent character he was acting in an honest belief that he had a permanent right in the land and that the landlord knowing that he was acting in that belief stood by and allowed him to go on with the construction of the buildings. See the case of Beni Ram v. Kundan Lal 26 I.A. 58 : 3 C.W.N. 502 : 21 A. 496 : 7 Sar. P.C.J. 523 : 1 Bom. L.R. 400 : 7 Sar. P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 and Ramsden v. Dyson (1866) 1 H.L. 129 : 12. Jur. (N.S.) 506 : 14 W.R. 926. In this case there is an entire absence of evidence showing any circumstances under which the present defendant's case can be brought within the rule just referred to. It is, however, urged that the finding is that the erection of the pucca building on the land in suit was known to the mutwali or his agent. That is not enough. The tenant must in the first place show that he had an honest belief that he had a permanent right in the land and that the landlord knew that the tenant-defendant was acting under such a belief and further that the landlord knowing that the tenant-defendant was acting under such a belief stood by and allowed the erection of the permanent structure. It has been urged on behalf of the tenant-defendant that in the Courts below the nature of the limited interest of the plaintiff-landlord was not gone into and that the case was not approached from that point of view. There may be some room for this contention; but having regard to the very comprehensive nature of the written statement filed by the defendant and having regard be the broad and comprehensive issues settled between the parties in this case, it is difficult at this stage to direct a remand. We see, therefore, no reason to direct a remand in this case and having regard to what has been stated above, we have no other alternative but to hold that the plaintiff-appellant is entitled be succeed.
4. The result, therefore, is that the appeal is allowed with costs and the judgment and the decree of the Munsif are restored.