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
NC Chatterjee A N Sinha with him for the appellant
Panchanan Ghosh Syama Charan Mitter and AK Dutt with him for the respondent
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 other 932 things 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 in Dhanna Mal vs Moti Sagar1 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 P11 being a conveyance executed in 1226 BS1819 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 P10 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
933 was Rs 1000
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 P9 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 1200
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 BS corresponding to 23rd May 1859 a notice under sections 9 and 10 of Regulation V of 1812 was issued by the then Zemindars Rani 934 Lalanmoni 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 as 935 it 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 P6 and P7 in favour of De Rozario and John Dominic Freitas for Rs 4000 and Rs 2000 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 P5
The consideration for the sale was Rs 9500
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 10000 vide Exhibit P4
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 10001 and Rs 1001 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 the 936 agreement 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 12500
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 12251
and this was accepted by the Administrator General in preference to the offer made by the plaintiff for Rs 11251
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 3205 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 served 937 notice 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 section 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 passed in that case
The issues framed in that case have 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 vs Sambhu Walladl
The principle of that decision was applied also to non agricultural tenancies in Jogendra Krishna Banerji vs Sm
Subashini Dassi2
In Probhas Chandra Mallik vs Debendra Nath Das3 also the same view was taken
We therefore hold that the plea of res judicata cannot be sustained
1 2 3  121 938 Shri N C Chatterjee then contends relying on the decisions in Rasmoy Purkatt vs Srinath Moyra 1 Digbijoy Roy vs Shaikh Aya Rahman 2 Satyendra Nath vs Charu Sankar 3  and Kamal Kumar Datta vs 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 vs Srinath Moyra supra and Digbijoy Roy vs 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 vs 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 of Satyendra Nath vs 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 2 3 4 Cal
939 indicated 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 vs 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


Summary:
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 vs Sambhu Wallad  Jogendra Krishna Banerji vs Subashini Dassi  Probhas Chandra Mallick vs Debendra Nath Das 1939 43 CWN828 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 vs Debendra Nath Das 1939 43 OWN 828 referred to