Case: Bejoy Gopal Mukherji Vs. Pratul Chandra Ghose

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 served 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. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal has arisen.5. 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 v. Sambhu Wallad [(1940) 45 C.W.N. 57.]. The principle of that decision was applied also to non- agricultural tenancies in Jogendra Krishna Banerji v. Sm. Subashini Dassi [(1940) C.W.N. 590.]. In Probhas Chandra Mallik v. Debendra Nath Das [(1939) 43 C.W.N, 828] also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained.6. Shri N. C. Chatterjee then contends, relying on the decisions in Rasmoy Purkatt v. Srinath Moyra (Supra), Digbijoy Roy v. Shaikh Aya Rahman (Supra), Satyendra Nath v. Charu Sankar (Supra) and Kamal Kumar Datta v. Nanda Lal Dule [(1929) I.L.R. 56 Cal. 738] 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 of Satyendra 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, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already 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 Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness 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 plaintiffs claim for ejectment.7.

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

Explanation:
0[ds]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, Watkins 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, Watkins Lane, and a portion of the Premises No. 2, Watkins Lane, having fallen down the 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, Watkins 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.and this was accepted by the Administrator-General in preference to the offer made by the plaintiff for Rs.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 served 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. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal hasthe 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, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already 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 Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness 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 plaintiffs claim for ejectment.