Supreme Court of IndiaBejoy Gopal Mukherji vs Pratul Chandra Ghose on 28 January, 1953Equivalent citations: 1953 AIR 153, 1953 SCR 930, AIR 1953 SUPREME COURT 153Bench:Mehr Chand Mahajan,Natwarlal H. BhagwatiPETITIONER:
BEJOY GOPAL MUKHERJI

	Vs.

RESPONDENT:
PRATUL CHANDRA GHOSE.

DATE OF JUDGMENT:
28/01/1953

BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.

CITATION:
 1953 AIR  153		  1953 SCR  930
 CITATOR INFO :
 R	    1966 SC 629	 (9)
 R	    1972 SC 410	 (17)
 R	    1988 SC1531	 (63)


ACT:
Landlord  and tenant -Permanent	 tenancy--Evidence-lnference
from  possession from generation to  generation,  transfers,
erection   of  stractures  and	other  circumstances   -Mere
increase of, rent, effect of.



HEADNOTE:
Permanency of tenure does not necessarily imply both  fixity
of rent and fixity of occupation and the fact of enhancement
of  rent does not necessarily militate against	the  tenancy
being a permanent one.	When, therefore, in a previous	suit
the  only question was whether the jama could  be  increased
and the jama was increased:
Held, that this decision did not operate as res judicata  on
the  question  of permanency of the tenure in  a  subsequent
suit for ejectment.
Shankar	 Rao v. Sambhu Wallad (1940) 45 C.W.N. 57;  Jogendra
Krishna	 Banerji  v. Subashini Dassi (1940) 45	C.W.N.	590,
Probhas	 Chandra  Mallick  v. Debendra Nath  Das  (1939)  43
C.W.N.828, relied on.
Mere  possession  for  generations at  a  uniform  rent,  or
construction  of permanent structures by itself may  not  be
conclusive  proof  of a permanent right but  the  cumulative
affect	of such facts coupled with other facts may  lead  to
the inference of a permanent
931
tenancy Where it was not known how the earliest known tenant
acquired the tenancy or what the nature of the tenancy	was,
the  tenancy  bad  passed  from one  person  to	 another  by
inheritance  or by will or by transfer inter vivos,  in	 the
deeds  of  transfer the transferee was given  the  right  to
enjoy	from  generation  to  generation  for  ever,   pucka
structures and tanks had been constructed, and though  there
was  an enhancement of rent in 1860, the rent bad  not	been
increased since then:
Held, that all these circumstances put together irresistibly
led to the conclusion of a permanency of the tenure.
Probhas Chandra Mallik v. Debendra Nath Das (1939) 43 O.W.N.
828 referred to.



JUDGMENT:CIVIL APPELLATE JURISDICTION: Civil Appeal No. 93 of 1952.
Appeal from the Judgment and Decree dated the 20th  January,
1950, of the High Court of Judicature at .Calcutta (Das	 and
Gupta  JJ.) in Appeal from Original Decree No. 141  of	1940
arising out of Judgment and Decree dated the 8th May,  1940,
of  the Court of the Subordinate Judge, 1st Court of  Zillah
If owrah in Title Suit No. 38 of 1948.N.C. Chatterjee (A.  N. Sinha, with him) for the appellant.
Panchanan  Ghosh  (Syama Charan Mitter and A.K.	 Dutt,	with
him) for the respondent.1953.  January 28.  The Judgment of the Court was  delivered
by
DAS J. - This is an appeal by the plaintiff' in an ejectment
suit.	His  case was that defendant No.  I  Pratul  Chandra
Ghose was a Ticca tenant of premises Nos. 2 and 3,  Watkin's
Lane,  Howrah, comprising an area of I Bigha 19	 Cottahs  of
land on a rent of Rs. 78 per annum under the landlords Kumar
Sarat  Kumar  Roy and Bibhuti Bhusan Chatterjee,  proform  a
defendants Nos. 2 and 3, that the plaintiff took a  Mourashi
Mokarari  lease from these landlords on the 23rd  September,
1937, and thereby became the immediate landlord of the	said
defendant and that the teancy was determined by a notice  to
quit dated the 7th October, 1937.The trial Court,  amongst
other932things,	 found as a fact that the tenancy of  the  defendant
Pratul	 Chandra   Ghose  was	permanent,   heritable	 and
transferable and was not liable to be determined by  notice.
The plaintiff preferred an appeal to the High Court but	 the
High  Court  dismissed that appeal  holding,  amongst  other
things, that the finding of the trial Court as to the nature
of  the tenancy was correct.  The plaintiff has now come  up
on  appeal  before us after getting a certificate  from	 the
High Court that it is a fit case for appeal to this Court.
Relying	 on the decision of the Privy Council inDhanna	 Mal
v.  Moti Sagar(1) Shri N. C. Chatterjee appearing on  behalf
of the plaintiff-appellant contends that the present  appeal
is  not	 concluded by the concurrent finding of	 the  Courts
below  that the tenancy was permanent because that  question
was  one of the proper inference in law to be  deduced	from
the facts as found by the Courts below.	 The learned counsel
has,  therefore,  taken	 us  through.  the  evidence  mostly
documentary, as to the nature of the tenancy.  The  earliest
document  referred  to is Exhibit P/11, being  a  conveyance
executed  in 1226 B.S.1819-1820 by Sheikh Manik and  another
in favour of Mrs. Cynthia Mills Junior.	 How the vendors had
acquired their title is not known.  By that deed of sale the
vendors, for a money consideration,, conveyed their interest
in the lands described as Jamai lands to the purchaser	who,
on  payment  of	 rent of Rs. 480 per kist,  was	 to  "go  on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc., in succession by	constructing
houses	and structures." Mrs. Cynthia Mills died  some	time
before	October, 1855, and her son John Henry Mills who	 had
succeeded her sold the premises to one Mrs. Sabina Love by a
conveyance  Exhibit P/10 dated the 29th October,  1855.	  It
appears from that deed that by that time a tank with masonry
steps  had been excavated on the lands which were  described
as a plot of rentpaying garden land.  The consideration	 for
the sale
(1) (1927) L. R. 54 1. A. 178.933was  Rs. 1,000.	 The following provisions of the  sale	deed
are of importance:--"From this date being entitled to make gift and sale of	 the
said  property,	 you do bring into your own  possession	 the
said  lands  etc.,  and on paying  annually  to	 the  Maliks
Zemindars  Rs. 480 (Rupees-four and annas eight)  in  Siccas
coins  as rent and on getting your name mutated in place  of
mine  and obtaining Dakhilas in your own name, you do go  on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc., in succession."By  a conveyance Exhibit P/9, dated the 10th October,  1856,
Mrs.  Sabina  Love transferred the premises to	one  Francis
Horatio	 Dobson.   The	premises  were	there  described  as
"garden	 land  held under Mourashi Patta"  which  Patta	 has
since  been held to be a spurious document in  a  subsequent
litigation.  It appears from this document that Mrs. Cynthia
Mills had excavated a tank and constructed a pucca ghat	 and
laid  out  a garden and that on her death her son  and	heir
John  Henry Mills came into possession of the land and	that
he had sold the premises to Mrs. Sabina Love and that  after
her  purchase Mrs. Sabina Love had enclosed the	 said  lands
and  had manufactured bricks with the earth of the land	 she
purchased.   The consideration for this conveyance  was	 Rs.
1,200.	It provided as follows :----"  From to-day you become the owner of the said	 lands	with
powers	of making gift and sale.  On keeping the said  lands
together  with the tank with all interests therein  in	your
possession  and under your control, and on paying  according
to the previous Patta the Mokarari annual rent of Rs. 480 in
Sicca coins into the Sherista of the Zemindar and on  having
the  previous name struck off from the	landlord's  Sherista
and  getting  your own name recorded therein, you do  go  on
enjoying and possessing the same with great felicity down to
your sons, grandsons etc., in succession . "On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859,  a
notice	under sections 9 and 10 of Regulation V of 1812	 was
issued by the then Zemindars Rani934Lalanmoni and Raja Purna Chandra Roy.  It was ,addressed  to
"  Mrs.	 Cynthia Mills Junior, Sarbarahkar  Mr.	 Dobson,  of
Salkhia.  " It rail as follows: -"  This is to inform you that you are in. possession  of   I
Bigha  19  Cottas  of lands of different kinds	as  per	 the
boundaries given below as recorded in the Mal Department  in
the  said village for which according to your own  statement
you  are paying a yearly rental of Rs. 4126.  But  you	have
taken  no  settlement  in respect thereof  from	 our  estate
(sarkar).   Now on fixing the annual Jama of the said  lands
according  to  the prevailing rate as per Jamabandi  at	 Rs.
137-8-0	 a year, fifteen days' notice is given to you  under
the provisions of sections 9 and 10 of Regulation V of	1812
and you are hereby informed that within the said period	 you
should	appear before, our Zamindary Cutchery and  accept  a
Pottah	after  submitting  a  Kabuliyat	 according  to	 the
practice in respect of the land and Jama.  In default, after
the expiry of the said period action will be taken according
to law, and thereafter no plea shall be entertained."The requisition not having been complied with, the landlords
evidently  filed  a suit being Suit No. 590  of	 1859.	 The
pleadings  in  this  suit are not on the  record.   On	21st
September,  1860,  the Principal Sudder Amin  delivered	 his
judgment,  Exhibit 24.	It appears from that  judgment	that
the following two issues had been framed:-" 1. Whether the plaintiffs have served notice on the  other
party for assessment of Jama ?2.   Whether  a	 Jama  can be assessed	in  respect  of	 the
disputed lands; if so at what rate?"The  Principal Sudder Amin overruling the objection  of	 the
defendants held that the landlords had full power to  assess
the  rent  and accordingly he fixed the rent at	 Rs.  2	 per
Cotta  which worked out at Rs. 78 in respect of	 the  entire
land.	There  was  an	appeal	from  that  decision  which,
however,  was  dismissed  by  the  judgment  Exhibit  Z	 (2)
delivered  on  the  18th March, 1862 .	The  Mourashi  Patta
relied upon was rejected as935it was not registered and appeared, on examination, to	have
been newly written and filed.  Thereafter the landlord filed
a  suit for rent of the disputed lands# against	 Dobson	 and
Exhibits  Z  and  Z  (1) are the  certified  copies  of	 the
judgment and order - passed thereon.  On the 29th May, 1866,
Dobson	executed  two mortgages (Exhibits P/6  and  P/7)  in
favour of De Rozario and John Dominic Freitas for Rs.  4,000
and  Rs, 2,000 respectively.  The two  re-conveyances  dated
29th  February, 1874, and 12th March, 1874, are also on	 the
record.	  On  6th March, 1874, Dobson sold the	premises  to
Henry  Charles	Mann by a deed which is	 Exhibit  P/5.	 The
consideration  for the sale was Rs. 9,500.  It appears	from
this  deed  that  by that time there  were  two	 brick-built
dwelling houses on the property which came to be numbered as
Nos. 2 and 3, Watkin's Lane.  On 11th September, 1883, Henry
Charles	 Mann  sold  the premises to George  Jones  for	 Rs.
10,000:	 vide  Exhibit P/4.  In both those  sale  deeds	 the
transferee  is	granted a heritable right forever.   In	 the
assessment  books  of the Howrah Municipality  (Exhibits  22
series)	 the  interest	of  George  Jones  is  described  as
Mourashi.   In	the landlord's Sherista the  nature  of	 the
tenancy	 is  not  stated  and Dobson  continues	 to  be	 the
recorded tenant (Exhibit D series).  There was, however,  no
column.	 in the rent receipts to indicate the status of	 the
tenant.	  It appears that on the death of George  Jones	 the
estate	came into the hands of the Administrator-General  of
Bengal representing the estate of George Jones.	 In the rent
receipts of Dighapatia Raj the rent is said to be  "received
from Jones--Administrator-General of Bengal." In May,  1931,
the  plaintiff	and  the  Administrator-General	 of   Bengal
entered	 into  an  agreement for sale  of  premises  No.  2,
Watkin's Lane, being a portion of the premises in  question,
for  a	sum  of Rs. 10,001 and Rs. 1,001  was  paid  by	 the
plaintiff  as  and by way of earnest money.   The  landlords
having declined to subdivide the ground rent between the two
portions  of  the premises, namely, Nos. 2 and	3,  Watkin's
Lane,  and a portion of the Premises No. 2,  Watkin's  Lane,
having fallen down the936agreement  for sale appears to have fallen through.  On	 the
4th June, 1932, the plaintiff suggested that a lease for  20
years	should	 be  granted  which  was  refused   by	 the
Administrator-General,	 Bengal.    Then  there	  was	some
negotiation  between  the plaintiff and	 the  Administrator-
General of Bengal for the sale of both the premises, Nos.  2
and  3,	 Watkin's Lane, to the plaintiff for a	sum  of	 Rs.
12,500.	 The plaintiff on 9th April, 1933, sent a draft deed
of sale (Exhibit 15) for the approval of the  Administrator-
General	 of  Bengal describing the premises  as	 a  Mokarari
Mourashi  homestead.   On 21st April, 1933,  Dighapatia	 Raj
Estate wrote to the Administrator-General. of Bengal  saying
that  the tenancy was a Ticca one.  On 6th June,  1933,	 the
Administrator-General  of  Bengal declined  to	approve	 the
draft  as  drawn.   After  some	 further  proposal  by	 the
plaintiff  for	a  long lease he declined  to  purchase	 the
property  on  the ground that the  Administrator-General  of
Bengal had not a good marketable title.	 Nothing having come
out  of	 the  negotiations between  the	 plaintiff  and	 the
Administrator-General  of  Bengal the latter  in  September,
1936, invited offers for sale of the lands (Exhibit B).	 The
defendant  No. I made the highest offer of Rs.	12,251.	 and
this was accepted by the Administrator-General in preference
to  the	 offer made by the plaintiff for  Rs.  11,251.	 The
Administrator-General  accordingly executed a conveyance  in
favour of the defendant Pratul Chandra Ghose (Exhibit P.  X)
who  thereupon	became the tenant of the  premises.   Having
failed	 to   obtain  title  to	 the   premises	  from	 the
Administrator-General of Bengal the plaintiff approached the
landlords  and on 22nd September, 1937, obtained a  Mokarari
Mourashi Patta in respect of the disputed land on payment of
a Selami of Rs. 3,205 and at an annual rent of Rs. 78  only.
The defendant Pratul Chandra Ghose filed rent suits  against
the  plaintiff	in  respect of the underlease  held  by	 the
latter	 under	the  Administrator-General  of	Bengal	 and
obtained  rent	decrees.   The plaintiff,  however,  on	 the
strength  of  his  new	title  derived	from  the   superior
landlords under the Mourashi Patta served937notice	on  the defendant Pratul Chandra Ghose	on  the	 7th
October,  1937, requiring him to vacate the premises on	 the
last  day of the month of Chaitra 1944 B. S.  The  defendant
Pratul	Chandra Ghose, not having vacated the premises,	 the
plaintiff filed the suit out of which the present appeal has
arisen.Shri N. C. Chatterjee contends that in view of the decision
in the suit of 1859 it was not open to the defendant Pratul
Chandra	 Ghose to contend that his tenancy was	a  heritable
permanent  tenancy.   This  point was  neither	pleaded	 nor
raised in the trial Court but was put forward for the  first
time before the High Court.  The pleadings of the 1859	suit
are  not  on the record but the substance  of'	the  written
statement  appears  from the judgment Exhibit 24  passedin
that case.  The issues framedin that casehave already been
set out.  There was no issue regarding the character of	 the
tenancy,  namely, whether it was permanent and heritable  or
otherwise.   The only question there was whether rent  could
be assessed tinder the Regulation.  There is nothing in that
Regulation  suggesting that rent could be assessed  only  if
the  tenancy was a ticca tenancy or that rent could  not  be
assessed  if the tenancy was a permanent one.  The  question
of permanency of the tenancy was not, therefore, directly or
substantially in issue.	 We find ourselves in agreement with
the  High  Court  that the permanency  of  tenure  does	 not
necessarily  imply  both  fixity  of  rent  and	 fixity	  of
occupation.  The fact of enhancement of rent in 1859 may  be
a  circumstance to be taken into consideration but  it	does
not  necessarily  militate  against  the  tenancy  being   a
permanent  one, as held by the Privy Council in the case  of
an  agricultural tenancy in Shankarrao v. Sambhu  Wallad(l).The  principle	of that decision was applied  also  to	non-
agricultural  tenancies inJogendra Krishna Banerji  v.	 Sm.
Subashini  Dassi(2).In Probhas Chandra Mallik v.  Debendra
Nath  Das(3) also the same view was taken.   We,  therefore,
hold that the plea of res judicata cannot be sustained.
(1)  (1940) 45 C.W.N. 57.(2)  (1940) C.W.N. 590.	       (3) (1939) 43 C.W.N, 828,121938Shri  N.  C.  Chatterjee  then	contends,  relying  on	 the
decisions  in Rasmoy Purkatt v. Srinath Moyra (1),  Digbijoy
Roy v. Shaikh Aya Rahman (2), Satyendra Nath v. Charu Sankar(3 ) and Kamal Kumar Datta v. Nanda Lal Dule ( 4 ) that	 the
tenancy in this case cannot be regarded as a permanent	one.
The decisions in those cases have to be read in the light of
the facts of those particular cases.The mere fact of	rent
having been received from a certain person may not, as	held
in Rasamoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy
v.  Shaikh  Aya Rahman (supra), amount to a  recognition  of
that person as a tenant.Mere possession for generations at
a  uniform  rent or construction of permanent  structure  by
itself	may not be conclusive proof of a permanent right  as
held  in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but	 the
cumulative  effect of such fact coupled with  several  other
facts  may lead to the inference of a permanent	 tenancy  as
indicated even in the case ofSatyendra Nath v. Charu Sankar(supra) on which Shri N. C. Chatterjee relies.	What,  then,
are  the salient facts before us ? It is not known  how	 the
earliest  known tenant Shaik Manik acquired the	 tenancy  or
what the nature of that tenancy was.  The tenancy has passed
from  one person to another by inheritance or by will or  by
transfers  inter  vivos.   In  the  deeds  of  transfer	 the
transferee  has been given the right to enjoy  the  property
from  generation  to generation for ever.  A tank  has	been
excavated  and a pucca ghat built on the land.	Bricks	have
been manufactured with the earth taken from the land and the
premises  have	been  enclosed within  pucca  walls.   Pucca
buildings have been erected and mortgages have been executed
for substantial amounts.  Although there was an	 enhancement
of  rent  in 1860 that rent has continued to  be  paid	ever
since  then.   Portion	of  the	 premises,  namely,  No.  2,
Watkin's Lane, has been used as a factory by the  plaintiffs
and  on	 the other portion, namely, No.	 3,  Watkin's  Lane,
residential buildings were -erected which indicate that	 the
lease was for residential purposes.  As already
(1)  7 C.W.N. 132
(2)  17 C.W.N. 156.(3)  40 C.W.N. 854.(4)  (1929) I.L.R. 56 Cal. 738.939indicated there have been many transfers and devolutions and
the  landlords have accepted rent' from the  transferees  or
the successors.	 The names of Mrs. Cynthia Mills and  Dobson
and,   Jones  were  mutated  in	 the  Zamindar's   Sherista.
Although  in the rent receipts Dobson continued to be  shown
as  the recorded tenant, eventually Jones's name appears  on
the  rent receipts as tenant.  In spite of the	increase  in
land value and the letting value the landlords through	whom
the plaintiff derives his title did not at any time make may
attempt	  to  eject  the  tenant  or  to  get  any   further
enhancement of rent since 1860.	 All these circumstances put
together are explicable only on the hypothesis of permanency
of the tenure and they irresistibly lead to the	 conclusion,
as  held by the lower Courts, that the tenancy	in  question
was  heritable	and  a	permanent  one.	  The  decision	  of
Mukherjea,  J.,	 in the case of Probhas Chandra	 Mallick  v.
Debendra  Nath Das (supra) is definitely in point.  In	this
view of the matter we hold that the Courts below were  right
in dismissing the plaintiff's claim for ejectment.'
In  the result this appeal must fail and we dismiss it	with
costs.Appeal dismissed.Agent for the appellant: P. K. Ghosh.Agent for the respondent: Sukumar Ghose.