1. The two appeals, Nos. 421 and 461 of 1909, are directed against the judgment and decree of the District Judge of Hooghly in a reference made to him by the Land Acquisition Collector under Section 30 of the Land Acquisition Act.
2. It appears that Government proposed to acquire three plots of land in Ram Kristapur, Pergunnah Boro, in Howrah for the purpose of building a District Jail, Police lines and official residence. The lands were in what was described as Seal's Bagan and consisted of (1) Premises No. 36, Seal's Garden, Ram Kristapur, Howrah, and included a residence and compound covering an area of 21 bighas;
(2) Premises No. 35 Seal's Garden Lane, Ram Kristapur, Howrah, being 7 bighas of land including a residence and compound, and (3) a parcel of Bastee land 15 bighas in area.
3. The total of the three plots covered 43 bighas. An agreement was entered into on the 2nd October 1905 between Manik Lal Seal and the Collector of Howrah as representing Government by which Manik Lal Seal agreed to accept Rs. 3,70,650 as the price of the land to be acquired half of which, Rs. 1,85,330, was to be paid at once and the rest on conclusion of the land acquisition proceedings. It was further agreed that any amount which the Land Acquisition Deputy Collector would eventually have to pay to persons other than Manik Lal Seal would be deducted from the second half.
4. For the purposes of acquisition, the three plots were afterwards divided up into smaller plots, and the 10th plot, which is the only one we have to deal with in this appeal, was divided into two parts, one of seven bighas including the residence and the other of 14 bighas, 11 cottas, 3 chattaks including the garden or compound. This second plot of 14 bighas, 11 cottas, 3 chattaks is the subject of the reference out of which the appeal before us arises.
5. The total amount of compensation awarded by the Collector for this area of land was Rs. 77,491-6-6 and the correctness of this award is not disputed.
6. There were three sets of claimants for apportionment of the compensation.
(1) Manik Lal Seal who claimed to be a permanent tenure-Holder of the land.
(2) Ram Shoshi Roy and others, described as the Roys, who claimed to be 8-anna landlords, and (3) Gurudass Kundu Chowdhury and others, described as the Kundus, who claimed to be the landlords of the remaining 8-annas.
7. The Collector apportioned the compensation among the 3 sets of claimants by giving to each of the sets of landlords a half share of 20 years' purchase of the rental amounting to Rs. 255-5 each or both together to Rs. 510-10 and the balance of Rs. 76,980-12-6 to Manik Lal Seal as his share as being a permanent tenure-holder on the land.
8. The landlords put in a petition of objection in which they claimed to be entitled to the whole of the compensation and alleged that Manik Lal Seal, being a mere tenant at-will, was entitled to nothing. The reference was accordingly made to the Civil Court on the 16th August 1906, and on the 7th September 1906, after the reference had been received by the Civil Court, the claimant Manik Lal Seal put in a petition alleging that the whole of the land acquired was his lakheraj land and that, therefore, he was entitled to the whole of the compensation.
9. The case was afterwards taken up by the District Judge. Evidence, oral and documentary, was adduced by both parties and judgment was delivered on the 4th August 1909. The claimant Manik Lal Seal died during the trial of the case before the Judge and was represented by the Official Assignee who had been appointed executor to his estate.
10. The Judge in disposing of the reference hell that the Official Assignee on behalf of Manik Lal Seal was not entitled to raise the question that the land was lakheraj as the ground had not been taken before the Collector and no objection bad been raised by Manik Lal Seal to the apportionment of the capitalised value of the rent to the two sets of proprietors. In support of that view, he relied on the case of Abu Bakar v. Peary Mohan Mukerjee 34 C. 451 and the case of Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chowdhury 12 C.W.N. 98.
11. He then proceeded to deal with the main dispute between the claimants, that is to say, whether Manik Lal Seal and his heirs were tenants-at-will on the land as the landlords alleged or permanent tenure-holders as was alleged on behalf of Manik Lal Seal. He found that Manik Lal Seal had a permanent right as a tenant on the land, but that it was not proved that the rent of the land was fixed in perpetuity. Accordingly, he modified the award of the Collector by allowing to Manik Lal Seal's estate two-thirds of the balance of the compensation after deducting the shares awarded to the landlords which 2/3rd share amounted to Rs. 51,660-15 and by allowing to each of the sets of landlords Rs. 12,915-3-9 or half of the 1/3rd share, of the balance which amounted to Rs. 25,830-5-6.
12. Against the judgment and decree of the Judge, both parties have appealed: the Official Assignee on behalf of Manik Lal Seal's estate in Appeal No. 421 of 1909 and the landlords in Appeal No. 461 of 1909. The appeals have been heard together and will be governed by this judgment.
13. In support of Appeal No. 421, the learned Counsel frankly admitted that he was not prepared to question the correctness of the view taken by the lower Court that, after his client had consented to the payment of the capitalized value of the rent to the landlords out of the compensation money, it was not open to him to seek in the present case to press his claim to the compensation on the basis that the land acquired was included in the lakheraj land which he held in Ram Kristapur but he suggests that he might be allowed to rely on the contention that the land was a part of the lakheraj land in order to support the case which he set up in the lower Court that he held the position of a permanent tenant on the land. In support of the case that the land acquired was really a portion of his client's original lakheraj land, the learned Counsel wished to rely on the map prepared for the purposes of the suit (No. 16 of 1861), under Regulation II of 1819, which was finally disposed of on appeal by the High Court. In that map, the land was divided into three plots and the learned Counsel, relying on that map and the area of the land stated to be in dispute in that case and the map prepared for the purposes of his client in this case and the report of the Engineer who prepared the map, argued that as the area given of plot No. 3 in the map (i.e., map No. 2) prepared in 1861 corresponded with the area found to have been included in plot C of the map (i.e., map No. 1) prepared for the purposes of the present case and as the map prepared for the purpose of the present case covered the lands in suit, therefore, it must be concluded that the lands in the present suit which were acquired by the Collector were also included in Suit No. 16 of 1861. The map prepared in 1861 on which the learned Counsel relies was not prepared to scale and the note given in the map with regard to an elliptical portion of the land on the south and adjoining the Garden Road does not appear to support the contention that that portion of land was included in that case. The areas and the boundaries of the lands are also not sufficiently ascertained and determined so as to render it safe on a comparison between the two maps to arrive at a distinct conclusion that the lands in suit in the present case are really the lands covered by the case in 1861 Furthermore, we do not think that it is possible for us in the present case to support the claim set up by the Official Assignee on behalf of Manik Lal Seal's estate to the compensation awarded on the basis that Manik Lal Seal's estate had a permanent tenancy in the lands acquired, on the basis of a finding that the lands were, in fact, held by the predecessors of Manik Lal Seal as Lekheraj lands and not as included in a permanent tenancy We think, therefore, that in the present case, the claims advanced on behalf of Manik Lal Seal's estate by the Official Assignee must succeed or fall on proof that Manik Lal Seal and his predecessors had a permanent tenancy in the lands acquired.
14. Proceeding then on the basis that the lands acquired firmed a part of Tawzi No. 3994, that is to say, chur Ram Kristapur and not mauza Ramkrisnapur, the evidence adduced establishes that the lands were permanently settled by Government in the year 1846. The lands were then described as in the possession of Krisna Sundari Dasi as tenant who was the wife of Srinath Mullik. These lands in 1861 appear to have passed into the hands of Hara Chandra Lahiri from whom they eventually passed to the family of the Seals and to the predecessors-in-interests of Manik Lal seal. The case now put forward on behalf of Manik Lal Seal's estate is that, at the time when the tenancy was first created or before it passed into the hands of the Seals, it was a permanent tenancy at a rental of Rs. 125 for 25 bighas of land. It appears that in 1861, these lands had passed into the possession of Hira Lal Seal and others as purchasers of the tenant's right and that, at that time, these lands with others to the south of them had been included in what is described as the Seal's garden and had been encircled by a balustrade reaching up to the Government Road. At that time, there was a building which appears to be the same as the residential building which was included in plot No. 1 previously referred to, consisting of 21 bighas and described as 36 Seal's garden, and the 17 bighas which from the subject of the present reference appear to have formed the compound of that residence. The evidence adduced shows that that condition of affairs continued from 1861 down to the time of the present acquisition. Evidence was adduced on behalf of the landlords claimants to prove that this land was low-lying land, that it was subject to inundation from the river, and that it could not have been included in any permanent tenure. It seems, however, that the inundation was considerably exaggerated, that between the lands acquired and the river there has been for years one, if not two, Government Roads with native bastis, that is to say, lands covered with native huts on the land between and that the 17 bighas appear to have had the advantages and amenities of most of the lands in the compounds of houses in that locality. The rent receipts which have been filed and the evidence adduced also go to support the conclusion that from 1861 at least, if not from earlier times, the rent of the land has been practically unchanged. The only change which has been suggested by the learned Counsel as having taken place is that the odd rent which was fixed in Sicca rupees was afterwards reduced to Government rupees. -We think that that change is not sufficient to indicate that there was any real variation in the rent from the time when the tenancy was created.
15. The learned Judge in arriving at the conclusion that the appellant had a permanent tenure in the lands acquired relied on the following facts:
(1). Uninterrupted possession, probably exceeding 50 years.
(2). Substantial and costly improvements on the lands effected by the tenant.
(3). Recognition by the superior landlords of the tenancy as transferable and hereditary and
(4). The absence of any attempt on the part of the superior landlords to eject the tenant during this long period of years.
16. The learned Counsel who appears for the respondents in this appeal does not, dispute that in this case there has been uninterrupted possession for 50 years but he argues that the appellant has failed to prove that he has effected any substantial or costly improvements on the land. He, suggests that the only building which the' Land Acquisition Deputy Collector found on the land was the illustrade enclosing the land and this cannot be regarded as substantial or costly improvement. He also argues that because in the receipts the tenure throughout is described as the tenancy in the name of Hara Chandra Lahiri and the Seals, the predecessors-in-interest of Manik Lal Seal, having been termed and described as sarbarakars, it shows that there was, in fact, no recognition by the superior landlords that the tenancy was hereditary or transferable: and, to oppose the argument that there has been no attempt on the part of the superior landlords to eject the tenant, the learned Counsel relies on the notice of ejectment dated 20th Aswin 1310 corresponding to October 1904 as indicating that landlords did not accept the position that the tenant could not be ejected. We have considered these arguments and we do not think that they sufficiently meet the case on which the learned Judge has based his conclusion. The land at the time when the tenancy was created appears to have been newly formed chur land and, in course of years, this has been converted into the compound of a residential dwelling-house. This improvement could not have been effected without raising and levelling the soil of the land and there can be in this case no doubt that, whether or not costly buildings were constructed on the land itself, the land was taken for the purpose of forming a compound for such a building and for adding to the amenities of such a building and increasing its attractions and i(s value. The railing enclosing the land may not have been very costly but it clearly indicates that the person who had taken the tenancy was under the belief that this tenancy was something considerably higher than that of a mere tenant-at-will; and in fact, we think that the inclusion of the land within the walls for the purpose of forming a compound for the house goes a long way to indicate that the tenancy, as created at first, was intended to be permanent. The mere introduction of the words 'sarbarakai' in the receipts is not, in' our opinion, sufficient to indicate that there was ' no recognition by the superior landlords that the land was saleable and heritable. In fact, the land appears to have passed by the sale from the Mulliks to Hara Chandra Lahiri and from Hara Chandra Lahiri to the Seals and after coming into the possession of the Seals, it appears, to have descended by inheritance to Manik Lal Seal. The landlords, for reasons best' known to themselves, appear to have retained the name of Hara Chandra Lahiri as the tenant for a period long beyond the possible term of his natural life and, in the circumstances, we are unable to say that the landlords did not recognize the transfers of the land by sale and inheritance. The notice of ejectment appears to us to prove very little. It was served in 1904 when there pan be no doubt that rumours of the acquisition were afloat and, for the reason that for the previous period of 60 years', there had been no attempt to eject the tenant, we are unable to regard it as of any value as indicating that, when the tenancy was created, it was intended to be a tenancy-at-will from which the tenant could be ejected at the wish of the landlords.
17. In support of Appeal No. 461 of 1909, ' which is preferred on behalf of the landlords, the same arguments have been used as those advanced to oppose Appeal No. 421. Farther, in support of the contention that the interest which the estate of Manik Lal Seal had in the land acquired was merely that of a tenant-at-will, reliance is placed on receipts of rent Exhibit A, dated 30th Chaitra 1310 (April 1904) and Exhibit Al, dated 30th Chaitra 1812 (13th' April 1906), both of which were signed by persons who on the dates mentioned ' were the cashiers of the Moti Lal Seal's' estate. In the latter, the tenure is described as 'Bastu ticca, and Gar-mauroshi', while in the former there is a note to the effect; 'There is no mention of tenant's interest in the dakhila.' Reliance is also placed on the plaint in a Rent Suit No. 224 of 1897, dated 10th April 1897 brought by Bishambhar Dutt Roy against Gopal Lal Seal and others ' as ' sarbarahars' in possession of the lands and tenures of the late Hara Chandra Lahiri, and in which the rent is described as 'Ticca rent' which was decreed on the 22nd July 1897, also on a similar plaint in Rent ' Suit No. 244 of 1904, dated 13th April 1909, brought by Ram Sashi Roy and another,' plaintiffs, in which the defendants are Manik Lal Seal and others and are described as sar-barahars and also as ticca tenants of bastu land which as decreed and on the extracts from the general Registers of suit and of execution of decrees showing that these decrees were duly executed.
18. The entry 'Bastu ticca Gar-mauroshi' in the receipts Exhibit A and the entry 'ticca.' in the copy of the plaint in Suit No. 244 of 1897, appear from the documents themselves, which have been laid before as by the Counsel for the respondent (the Manik Lal Seal's estate) not to be free from suspicion and certainly look like interpolations. The learned Counsel for the landlords appellants points, however, to a similar entry describing the rent as ticca, rent in another plaint filed by the landlords in 1899.
19. We are not prepared to attach much importance to the entries in these documents, some of which are not free from suspicion. In themselves, they certainly fail to establish that the tenancy of Manik Lal Seal and his predecessors was only that of a tenant-at-will.
20. Reference on behalf of the appellants in this appeal is also made to the Settlement proceedings in 1845 Exhibit T (1), in which it is noted that nobody makes any claim of Man-roshi right, also to the deed of sale of the property executed by Bishambhar Dutt Roy on the 18th August 1897 in favour of Ram Moy Roy, in which two encumbrances on the property in favour of persons other than the Seals were specifically mentioned and it was stated that no other permanent rights in any lands in the property had been given to any ten-ants.
21. These documents also do not appear to us to be entitled to much weight as proving that the rights of the Seals in the lands acquired were merely those of tenants-at-will. At the time of the Settlement in 1846, the land was all chur land and the tenure which finally passed by purchase to the Seals was evidently created later. The recital in the deed of sale of one of the predecessors-in-title of the landlord appellants is also not of much value as against the tenant respondent.
22. The evidence adduced on both sides, in our opinion, supports the conclusion that the tenancy or tenure was created some years before 1861, that at the time it was created it was granted for residential purposes and that since that time the land has been enclosed and improved to form the grounds or compound of a residential building, that expenses have been incurred on permanent improvements to the land so as to make it fit for the purpose for which it was purchased, and that it has from before 1861 been enclosed in a tract of land described as the Seal's garden. The rent during all these years has remained the same, though the land has of late years increased very considerably in value. The land has been transferred by sale and has passed by inheritance on several occasions without any objection raised by the landlords, and on the contrary, the landlords have recognized the transferees as tenants by receiving rents from them. The mere retention of the name of the old tenant for the purpose of identifying the holding in the Sherista of the landlord is not in itself sufficient to indicate that there was no recognition by the landlords that the tenancy was heritable and transferable. And no attempt was made from 1861, and before that date to eject the tenants or to serve any notice of ejectment till 1904, when it must have been generally known that Government was about to acquire the land for public purposes.
23. All these facts are sufficient, in accordance with the principles laid down by their Lordships of the Privy Council in the cases of Upendra Krishna Mandal v. Ismail Khan Mahomed 32 C. 41 : 8 C.W.N. 889 : 31 I.A. 144; Nilratan Mandal v. Ismail Khan Mahomed 32 C. 51 : 8 C.W.N. 895 : 31 I.A. 149 and Nabakumari Debi v. Behari Lal Sen 34 C. 902 : 2 M.L.T. 433 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 34 I.A. 160, to justify the conclusion that the tenancy set up by the Official Assignee on behalf of the estate of Manik Lal Seal was a maurasi mokarrari tenancy, that is to say, a permanent, transferable and heritable tenancy at a fixed rental.
24. That being so, we must follow the principle laid down by their Lordships of the Privy Council in the cases which we have mentioned and hold that the landlords are only entitled to the capitalised value of the rental out of the' compensation and that the balance of the compensation must be awarded to the permanent tenant or tenure-holder.
25. The result is that we decree the Appeal No. 421 of 1909 with costs and dismiss Appeal No. 461 of 1909 with costs. The judgment and decree of the lower Court is modified and the award made by the Collector appropriating the compensation between the claimants is restored, that is to say: Each set of 8-annas landlords, viz., the Roys and the Kundus will receive out of the compensation the sum of Rs. 255-5 being a half of the capitalized value of the rental and the balance of the compensation will be paid over to the Official Assignee as Receiver of the estate of Manik Lal Seal.
26. The Official Assignee as Receiver for the estate of Manik Lal Seal will also recover the costs incurred by him in the lower Court from the landlords claimants, each set of landlords paying half of the costs.