Case: Hamidullah (Dead) by his Legal Representatives &amp; Others Vs. Sheikh Abdullah &amp; Others

that he (Faqir Bux) cannot be evicted from "any portion of the land without payment of the cost of the constructions by way of compensation. No permanent tansy was set up in the written statement. What was pleaded was that he was entitled to remain in possession till the subsistence of the factory and that he was not liable to be evicted without payment of compensation for the constructions.14. The learned single judge, after considering these documents, found that the defendants 1 to 3 failed to establish the permanent tenancy set up by them. The main ground on which the Division Bench interfered with the finding of the learned single judge was that no weight could be attached to the admission contained in the recitals in the agreement made between Faqir Bux and the Maharaja of Balrampur. It may be recalled that the recitals in that agreement (Ex 12) was that Faqir Bux was occupying the land and the shops on payment of rent and he and Haji Khuda Bux had erected structures on land with their own funds with or without the permission of Balrampur Estate, that rent was to continue to be the same and could not be compensation if the mortgagee became the owner of the property and required it to be vacated or if the mortgagor redeemed the ~property, there would be a fresh agreement of tenancy between the lessee and the mortgagor. The Division Bench was of view that the admission implied in the recitals had not evidentiary value as the lease of the land and shops had originally been obtained by Haji Khuda Bux, that he died only on May 10, 1918, and when this agreement was entered into on January 29, 1918 khuda Bux was alive and was the virtual owner of the shops and the lessee of the land. The Division Bench held that since Faqir Bux had not legal interest in the property or the shops at the time, the admission implied in the agreement that there was not permanent leases in favour of Khuda Bux cannot behind Khuda Bux or his heirs after his death. This view of the Division Bench might be technically correct. But that would not help the respondents. The point to be considered was whether there was evidence to show the permanent leases in favour of Haji Khuda Bux of the two plots. If as a matter of fact Haji Khuda bux was a permanent tenant of the two plots, it was highly improbable that Faqir Box would have entered into an agreement of this nature with the Maharaja of Balrampur. The question was not whether the admission implied in the recitals in the agreement was binding on the legal representative of Faqir Bux as admission; the question was whether in the facts and circumstances of the case, Faqir Bux would have entered into Appeal an agreement of this nature with the Maharaja of Balrampur if as a matter of fact Khuda Bux was a permanent lessee of the plots by virtue of permanent leases set up by defendants 1 to 3. We do not think that Faqir Bux, who was practically managing the business under the partnership deed would have entered into an agreement of this nature, had Haji Khuda Bux been a permanent lessee of these plots.15. The onus of proving the permanent leases set up was upon defendants 1 to 3. The two alleged leases were oral. The only person who could have deposed to the two agreements of lease was Faqir Bux. But he did not go to the witness box to swear to the case.16. In this case the origin of the tenancies is known and, therefore, it is not a case of tenancies of which the origin is not known. No question of lost grant arises in the case. It would appear that the rent remained constant with a slight variation. It also appears that Haji Khuda Bux and Faqir Bux have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructions were made after 1992 when Faqir Bux acquired a share in the property.17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faqir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case raise a presumption that the permanency of tenancy is a question of fact depending upon the facts of permanency of tenancy is a question of fact depending upon the facts each particular case. In A. S. N. Nainapillai Markayar v. T. A. R. A. Rm. Ramanathan Chettiar (AIR 1924 PC 65 : 51 IA 83 : 82 IC 226 : 46 MLJ 546) it was ruled that the onus of proving that a occupation at a fixed rent does not raise a presumption of permanent occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V. P. Subrahmanya Mudaliyar (AIR 1929 PC 156 : 56 IA 248 : 116 IC 601 : 57 MLJ 1). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose (1953 SCR 930 : AIR 1953 SC 153 : 1953 SCJ 195 ), this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstance coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned single judge was right in his conclusion and that the Division Bench went wrong in reversing the judgment and decree of the Division Bench and restore decree passed by the singly Judge.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. As all the courts below have disbelieved the oral evidence adduced to establish the permanent leases, we do not think it necessary to deal with the same. So the question is whether the documentary evidence in the case would support the case of permanent leases put forward by defendants 1 to 3.8. In the deed of gift dated September 18, 1874, executed by Mumtaz Mahal in favour of Mulko, Mumtaz Mahal referred to the ahata as a grove with pucca shops and in her possession. It would seem from that document that nobody else had put up any constructions in this property at the time the gift deed was executed; nor is there any mention of the permanent lease in 1870 in favour of Haji Khuda Bux or hisof any portion of the property.9. On January 16, 1885, Mulko executed the sale deed in favour of Rahim Bux, but this document is not of any help to either of the parities. On February 12, 1904, Rahim Bux, his two brothers, their three sisters and the widow of Babu khuda Bux executed a mortgage deed in favour of the Maharaja of Balrampur. The names of the tenants are mentioned along with the number of the house/shops occupied by them. The serial numbers 8, 9, and 10 are the three shops in blue portion. Khuda Bux, tobacco seller, is described as their tenant and rent is Rs. 3/3 for each shop. Serial numbers 35 and 36 are the two compounds. Khuda Bux, tobacco seller is described as their tenant. The rent of compound 35 specified as Rs. 3/3 and of the other compound as Rs. 2 per months. Compound 36 is the portion marked red in the Commissioners plan and the compound 35 is the portion marked blue there. In this document there is not reference to the nature of the tenancy in favour of Khuda Bux. The total rent of the three shops and the compounds 35 and 36 was Rs.paragraph is of significance because the executants did not mention that they were holding the land under any permanent lease. They contemplated the possibility that they might have top vacate the land and the shops. They visualised in that event they would be get compensation in respect of the buildings which they had constructed; so they provided that any such compensations obtained or realised from the owner of the land would be treated as their joint property. The clause shows beyond any doubt that the executants did not consider that they were permanent lessees of the land in 1909.In this case the origin of the tenancies is known and, therefore, it is not a case of tenancies of which the origin is not known. No question of lost grant arises in the case. It would appear that the rent remained constant with a slight variation. It also appears that Haji Khuda Bux and Faqir Bux have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructions were made after 1992 when Faqir Bux acquired a share in the property.17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faqir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case raise a presumption that the permanency of tenancy is a question of fact depending upon the facts of permanency of tenancy is a question of fact depending upon the facts each particular case. In A. S. N. Nainapillai Markayar v. T. A. R. A. Rm. Ramanathan Chettiar (AIR 1924 PC 65   : 51 IA 83 : 82 IC 226 : 46 MLJ 546)   it was ruled that the onus of proving that a occupation at a fixed rent does not raise a presumption of permanent occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V. P. Subrahmanya Mudaliyar (AIR 1929 PC 156   : 56 IA 248 : 116 IC 601 : 57 MLJ 1). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose (1953 SCR 930   : AIR 1953 SC 153   : 1953 SCJ 195  ), this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstance coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned single judge was right in his conclusion and that the Division Bench went wrong in reversing the judgment and decree of the Division Bench and restore decree passed by the singly Judge.