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

2. The suit was for partition and recovery of the plaintiffs share in the plaint property. The original plaintiff, one Kundan Lal died during the pendency the litigation and he was represented by his son Kunj Behari Lal and widow Shrimati Dallo. The defendants to the action were four in number. Haji Faqir Bux, son of Haji Khuda Bux, and, the two sons of Haji Faqir Bux, namely Abdul Ghafoor and Sheikh Abdullah were defendants I to 3. The fourth defendant was Shrimati Kallo. Haji Faqir Bux died during the pendency of the litigation. Shrimati Kallo also died during the pendency of this litigation and they are represented in the appeal by their legal representatives. The property, of which partition was sought, consists of a big ahata in mohalla Rahimganj in the city of Lucknow.3. The property originally belonged to Begum Mumtaz Mahal wife of Nawab Ghaziuddin Hyder. She gifted the property to herShrimati Mulko, in 1974. Shrimati Mulko sold it to Babu Rahim Bux who was benamidar of his father Babu Khuda Bux. Babu khuda Bux died in 1895; he was succeeded by three sons Rahim Bux, Karim Bux and Nabi Bux, ten daughters and a widow. In 1903, seven out of the ten daughters relinquished their shares in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaja of Balrampur by a deed dated February 12, 1904. In 1919, the Maharaja brought a suit on the mortgage and obtained a preliminary decree for sale. Rahim Bux and his two brothers, not being able to pay off the mortgage decree, sold the equity of redemption to one Murlidhar in 1920. Murlidhar redeemed the mortgage by paying off the amount due under the preliminary decree to the Maharaja of Balrampur. Faqir Bux, original defendant I purchased a share in the equity of redemption from the three daughters and the widow of Babu Khuda Bux and then brought a suit for redemption of his share against Murlidhar and ultimately, by paying off the amount due upon his share to Murlidhar, became ain the property to the extent of 3 annas, 10 pies and 9 Kirants. This was in the year 1992. By different deeds of transfer, Murlidhars share passed to Shrimati Kallo original defendant 4, and to Kundan Lal, theof Kunj Behari Lal and Shrimati Dallo.

Court's reasoning:
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.