Bejoy Gopal Mukherji vs Pratul Chandra Ghose

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 93 of 1952

Decision Date: 28 January 1953

Coram: Mehr Chand Mahajan, Natwarlal H. Bhagwati, Das

In the matter titled Bejoy Gopal Mukherji versus Pratul Chandra Ghose, the Supreme Court of India rendered its judgment on 28 January 1953. The bench that heard the case consisted of Justice Mehr Chand Mahajan, Justice Natwarlal H. Bhagwati and Justice Das Sudhi Ranjan, with the judgment reported at 1953 AIR 153 and 1953 SCR 930. The appellant was Bejoy Gopal Mukherji and the respondent was Pratul Chandra Ghose. The citation record also notes later references in 1966 SC 629, 1972 SC 410 and 1988 SC 1531. The dispute concerned the law of landlord and tenant, specifically the evidence required to infer a permanent tenancy from factors such as successive possession, inter-generational transfers, erection of permanent structures and other surrounding circumstances, and the effect of a mere increase in rent on the nature of the tenancy. The headnote of the judgment explained that the permanency of a tenancy does not necessarily require both a fixed rent and a fixed occupation, and that an increase in rent does not automatically defeat a claim that the tenancy is permanent. It was observed that a former suit which only addressed whether the rent (referred to as “jama”) could be increased, and in which the rent was indeed raised, did not operate as res judicata on the later question of whether the tenancy was permanent in a subsequent ejectment proceeding. The Court relied on earlier authorities, namely Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogendra Krishna Banerji v. Subashini Dassi (1940) 45 C.W.N. 590; and Probhas Chandra Mallick v. Debendra Nath Das (1939) 43 C.W.N. 828. It was held that while mere long-standing possession at a uniform rent, or the construction of permanent structures, may not alone prove a permanent right, the cumulative effect of such facts together with other surrounding evidence may lead to a reasonable inference of a permanent tenancy. The Court further noted that where the origin of the earliest known tenant’s title was uncertain, the tenancy had passed from one person to another by inheritance, by will or by inter-vivos transfer, and that the deeds of transfer expressly granted the transferee the right to enjoy the premises from generation to generation forever. Moreover, permanent structures and water-tanks had been erected, and although rent had been raised in 1860, it had not been increased thereafter. All these circumstances, taken together, irresistibly led to the conclusion that the tenure was permanent, reaffirming the earlier cited case of Probhas Chandra Mallick v. Debendra Nath Das. The judgment concerned Civil Appeal No. 93 of 1952, which was an appeal from the judgment and decree dated 20 January 1950 of the High Court of Judicature at Calcutta, rendered by Justices Das and Gupta, that itself was an appeal from the original decree No. 141 of 1940 arising out of the judgment and decree dated 8 May 1940 of the Subordinate Judge, First Court of Zillah Howrah, in Title Suit No. 38 of 1948. Counsel appearing for the appellant was N.C. Chatterjee, assisted by A.N. Sinha, while counsel for the respondent was Panchanan Ghosh, assisted by Syama Charan Mitter and A.K. Dutt. The judgment of the Court was delivered by Justice Das, and it was described as an appeal by the plaintiff in an ejectment suit.

In the ejectment suit the plaintiff claimed that the first defendant, Pratul Chandra Ghose, occupied premises numbered two and three on Watkin’s Lane in Howrah, an area measuring one bigha and nineteen cottahs. The plaintiff alleged that the said premises were let to Mr Ghose at a rent of Rs 78 per annum by the landlords Kumar Sarat Kumar Roy and Bibhuti Bhusan Chatterjee. The plaintiff further asserted that it had obtained a Mourashi Mokarari lease from those landlords on 23 September 1937, thereby becoming the immediate landlord of Mr Ghose, and that the tenancy was to be terminated by a notice to quit dated 7 October 1937. The trial court, after examining the evidence, found that Mr Ghose’s tenancy was permanent, heritable and transferable, and consequently could not be ended by a notice to quit. The plaintiff appealed this finding to the High Court, but the High Court dismissed the appeal, holding that the trial court’s determination of the tenancy’s nature was correct. After obtaining a certificate that the case was fit for further appeal, the plaintiff now approached this Court. Relying on the Privy Council decision in Dhanna Mal v. Moti Sagar (1927), counsel for the plaintiff argued that the question of whether the tenancy was permanent was not finally decided by the lower courts, because it required a legal inference to be drawn from the established facts. To support this argument the counsel presented a series of documentary exhibits. The earliest document, Exhibit P/11, is a conveyance executed in the year 1226 B.S. (1819-1820) by Sheikh Manik and another party in favour of Mrs Cynthia Mills Junior; the manner in which the vendors acquired their title is not recorded. By this deed of sale the vendors, for a monetary consideration, transferred their interest in lands described as Jamai lands to the purchaser, who was bound to pay a rent of Rs 480 per kisht and was granted the right “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 before October 1855, and her son John Henry Mills, who succeeded her, conveyed the premises to Mrs Sabina Love by a deed, Exhibit P/10, dated 29 October 1855. That deed shows that by that time a tank with masonry steps had been excavated on the land, which was then described as a rent-paying garden plot, and the consideration for the sale was Rs 1,000. A salient clause in the sale deed stipulated that the grantee, upon paying annually to the Maliks-Zamindars Rs 480 in sicca coins as rent and obtaining a mutation of the title and Dakhilas in his name, would continue to possess and enjoy the property “with great felicity down to your sons and grandsons etc., in succession.” Subsequently, by Exhibit P/9 dated 10 October 1856, Mrs Sabina Love transferred the premises to Francis Horatio Dobson; the property was described as “garden land held under Mourashi Patta,” a document later held to be spurious in another litigation. From these records it appears that Mrs Cynthia Mills had excavated a tank, constructed a pucca ghat and laid out a garden, that after her death her son and heir John Henry Mills took possession, sold the property to Mrs Sabina Love, and that Mrs Love thereafter enclosed the land and engaged in brick-making activities.

The deed required the purchaser to pay an annual rent of four rupees and eight annas, that is Rs 480 in Sicca coins, to the Maliks and Zemindars. In return, the purchaser was to have his name entered in place of the vendor’s name and to obtain Dakhilas in his own name, thereby allowing him to possess and enjoy the lands with the assurance that the enjoyment would continue through his sons and grandsons in succession. By a conveyance marked as Exhibit P/9 dated 10 October 1856, Mrs Sabina Love transferred the property to Francis Horatio Dobson. The conveyance described the property as “garden land held under Mourashi Patta,” a document that later litigation declared to be spurious. The conveyance disclosed that Mrs Cynthia Mills had earlier excavated a tank, constructed a pucca ghat and laid out a garden on the land. Upon her death, her son and heir, John Henry Mills, acquired possession and subsequently sold the premises to Mrs Sabina Love. After acquiring the land, Mrs Love enclosed the area and used the earth of the land to manufacture bricks. The consideration for this transfer was Rs 1,200. The deed contained the following stipulation: from the date of conveyance the buyer became the owner of the lands with full power to make gifts and sales; he was to retain possession and control of the lands together with the tank and all associated interests; he was to continue paying the annual rent of Rs 480 in Sicca coins into the Zemindar’s Sherista as prescribed by the earlier Patta; the previous name was to be struck off the landlord’s Sherista and the buyer’s name entered therein; and the buyer was to enjoy and possess the lands with the same felicity promised to his descendants in perpetuity.

On the 10th day of Jeshta 1266 B.S., corresponding to 23 May 1859, a notice issued under sections 9 and 10 of Regulation V of 1812 was sent by the then Zemindars, Rani Lalanmoni and Raja Purna Chandra Roy, addressed to “Mrs Cynthia Mills Junior, Sarbarahkar Mr Dobson, of Salkhia.” The notice informed the addressees that they were in possession of one Bigha and nineteen Cottas of land of various types, as delineated by the boundaries recorded in the Mal Department for the village, and that, according to their own statement, they were paying a yearly rental of Rs 4,126. The Zemindars pointed out that no settlement had been obtained from the estate (sarkar) for the said lands. Consequently, they fixed the annual Jama of the lands at the prevailing rate of Rs 137-8-0 per year, as per the Jamabandi, and gave fifteen days’ notice, pursuant to sections 9 and 10 of Regulation V of 1812, directing the parties to appear before the Zamindary Cutchery, submit a Kabuliyat in accordance with customary practice, and accept a Pottah within the stipulated period. The notice warned that failure to comply would result in legal action and that no further pleas would be entertained.

In default, after the expiry of the period specified in the notice, the landlords declared that legal action would be taken and no plea would be entertained. Because the requisition was not complied with, the landlords instituted Suit No. 590 of 1859. The pleadings of that suit are not part of the record. On 21 September 1860 the Principal Sudder Amin delivered his judgment, identified as Exhibit 24. The judgment framed two issues for determination: first, whether the plaintiffs had served notice on the other party for the assessment of Jama; second, whether a Jama could be assessed with respect to the disputed lands and, if so, at what rate. Overruling the defendants’ objection, the Principal Sudder Amin held that the landlords possessed full authority to assess the rent and consequently fixed the rent at Rs 2 per Cotta, which amounted to Rs 78 for the whole parcel of land. An appeal against this assessment was filed, but the appeal was dismissed by the judgment recorded as Exhibit Z(2), delivered on 18 March 1862. The Mourashi Patta presented in support of the defendants was rejected because it was not registered and, upon examination, appeared to be a newly drafted document. After this, the landlord instituted another suit for rent of the disputed lands against Dobson, and the certified copies of the judgment and order in that suit are exhibited as Z and Z(1).

On 29 May 1866 Dobson executed two mortgages, shown in Exhibits P/6 and P/7, in favour of De Rozario and John Dominic Freitas for sums of Rs 4,000 and Rs 2,000 respectively. The record also contains two reconveyances dated 29 February 1874 and 12 March 1874. Subsequently, on 6 March 1874 Dobson sold the premises to Henry Charles Mann by deed (Exhibit P/5) for a consideration of Rs 9,500. The deed indicates that by that time two brick-built dwelling houses existed on the property, identified as Nos. 2 and 3, Watkin’s Lane. On 11 September 1883 Mann sold the premises to George Jones for Rs 10,000, as shown in Exhibit P/4. Both sale deeds granted the transferee a hereditary right in perpetuity. The Howrah Municipality assessment books (Exhibits 22 series) describe George Jones’s interest as Mourashi. The landlord’s Sherista does not specify the nature of the tenancy, and Dobson continues to be recorded as the tenant in Exhibit D series, with no column in the rent receipts indicating the tenant’s status. Following the death of George Jones, the estate passed to the Administrator-General of Bengal, who represented the estate of George Jones. Rent receipts of Dighapatia Raj record the rent as being “received from Jones—Administrator-General of Bengal.” In May 1931 the plaintiff and the Administrator-General of Bengal entered into an agreement for the sale of premises No. 2, Watkin’s Lane, being a portion of the disputed premises.

In May 1931 the plaintiff entered into an agreement to purchase the portion of the premises identified as No. 2, Watkin’s Lane, for the sum of ten thousand and one rupees. As part of that agreement the plaintiff paid one thousand and one rupees as earnest money. The landlords subsequently refused to divide the ground rent between the two parts of the property, namely Nos. 2 and 3, Watkin’s Lane. Because of that refusal a portion of Premises No. 2 was removed from the sale agreement, and the entire agreement for sale failed to materialise. On 4 June 1932 the plaintiff requested that the Administrator-General of Bengal grant a lease of twenty years over the property, but the Administrator-General refused. Thereafter negotiations began between the plaintiff and the Administrator-General for the sale of both Nos. 2 and 3, Watkin’s Lane, at a price of twelve thousand five hundred rupees. On 9 April 1933 the plaintiff forwarded a draft deed of sale, marked as Exhibit 15, to the Administrator-General for approval, describing the property as a “Mokarari Mourashi” homestead. On 21 April 1933 the Dighapatia Raj Estate wrote to the Administrator-General stating that the tenancy was a “Ticca” tenancy. The Administrator-General rejected the draft deed on 6 June 1933. The plaintiff then made a further proposal for a long-term lease, but the Administrator-General declined to purchase the property, asserting that he did not possess a marketable title. With the negotiations stalled, the Administrator-General, in September 1936, invited offers for the sale of the lands (Exhibit B). The plaintiff, identified as Defendant No. I, placed the highest bid of twelve thousand two hundred and fifty-one rupees, which the Administrator-General accepted, preferring it to the plaintiff’s offer of eleven thousand two hundred and fifty-one rupees. Consequently, the Administrator-General executed a conveyance in favour of the defendant, Pratul Chandra Ghose, (Exhibit P.X) who thereafter became the tenant of the premises.

After failing to obtain title from the Administrator-General, the plaintiff approached the original landlords and, on 22 September 1937, secured a Mokarari Mourashi Patta covering the disputed land upon payment of a Selami of three thousand two hundred and five rupees and agreeing to an annual rent of only seventy-eight rupees. The defendant, Pratul Chandra Ghose, subsequently filed rent suits against the plaintiff concerning the under-lease he held from the Administrator-General and obtained rent decrees in his favour. Relying on the new title derived from the superior landlords via the Mourashi Patta, the plaintiff served a notice on the defendant on 7 October 1937, demanding that the defendant vacate the premises by the last day of the month of Chaitra 1944 B.S. The defendant did not comply, and the plaintiff instituted the suit that gave rise to the present appeal. Shri N. C. Chatterjee argued that, in view of the decision in the 1859 suit, the defendant could not maintain that his tenancy was a heritable permanent tenancy. This argument had not been raised in the trial court and was presented for the first time before the High Court.

The question of whether the tenancy was a permanent tenancy was never pleaded or raised before the trial court; it appeared for the first time only before the High Court. The pleadings relating to the 1859 suit are absent from the record, but the substance of the written statement can be discerned from judgment Exhibit 24 that was issued in that case. The issues that were framed in the 1859 suit have already been outlined. Notably, the dispute in that earlier proceeding did not concern the character of the tenancy, that is, whether it was permanent and heritable or of another nature. The sole issue in the 1859 suit was whether rent could be assessed under the Regulation. The Regulation contains no provision indicating that rent assessment is permissible solely when the tenancy is of a particular type, such as a “ticca” tenancy, nor does it bar assessment when the tenancy is permanent. Consequently, the permanence of the tenancy was not directly or substantially in issue in that earlier case. The Court agrees with the High Court’s observation that the permanency of a tenure does not automatically entail both a fixed rent and a fixed occupation. Although rent was enhanced in 1859, that fact may be considered as a circumstance but does not inevitably defeat a conclusion that the tenancy was permanent. This principle was affirmed by the Privy Council in the agricultural tenancy case of Shankarrao v. Sambhu Wallad (1). The same reasoning was extended to non-agricultural tenancies in Jogendra Krishna Banerji v. Smt. Subashini Dassi (2) and again adopted in Probhas Chandra Mallik v. Debendra Nath Das (3). Accordingly, the Court holds 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.

Subsequently, counsel for the plaintiff relied on the authorities 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) to argue that the tenancy at issue could not be characterised as permanent. Those decisions must be read in the context of the specific facts of each case. The mere receipt of rent from a particular individual does not, as held in Rasmoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy v. Shaikh Aya Rahman (supra), necessarily amount to recognition of that individual as a tenant. Likewise, mere possession for successive generations at a uniform rent, or the construction of permanent structures, is not alone conclusive proof of a permanent right, as affirmed in Kamal Kumar Dutt v. Nanda Lal Dule (supra). However, when such facts are combined with other surrounding circumstances, they may collectively lead to an inference of a permanent tenancy, a view also expressed in Satyendra Nath v. Charu Sankar (supra), which the plaintiff’s counsel cites. The salient facts before the Court therefore require examination, and it remains unknown how the earliest known tenant, Shaik Manik, acquired his tenancy or what the nature of that original tenancy was.

In this case, the Court observed that the origin of the tenancy was unknown and that the tenancy had successively passed from one person to another either by inheritance, by testamentary disposition, or by inter-vivo transfers. The deeds of each transfer expressly granted the transferee the right to enjoy the property for all successive generations in perpetuity. Over the course of the tenancy, the occupants had excavated a tank and constructed a permanent ghat on the land, and they had produced bricks from soil taken from the site and subsequently erected pucca walls that enclosed the premises. Permanent masonry buildings were also erected, and substantial mortgages were created against the property. Although the rent was increased in the year 1860, that higher rent has been paid continuously without interruption since that date.

The portion identified as No 2, Watkin’s Lane, was used by the plaintiffs as a factory, while the other portion identified as No 3, Watkin’s Lane, was developed with residential buildings, indicating that the lease was intended for residential use. The earlier authorities cited—(1) 7 C.W.N. 132, (2) 17 C.W.N. 156, (3) 40 C.W.N. 854, and (4) (1929) I.L.R. 56 Cal. 738—demonstrated that many transfers and devolutions had occurred and that successive landlords had consistently accepted rent from the transferees or their successors. The names of Mrs. Cynthia Mills, Dobson and Jones were entered in the Zamindar’s Sherista, and while the rent receipts initially recorded Dobson as the tenant, later receipts showed Jones’s name as the tenant.

Despite the increase in the land’s market value and its letting value, the landlords through whom the plaintiff derived his title never attempted to eject the tenant nor sought any further rent enhancement after 1860. All of these circumstances, when considered together, support the hypothesis that the tenancy was permanent and heritable, leading inevitably to the conclusion—also reached by the lower courts—that the tenancy was of a permanent, inheritable nature. The Court noted that the decision of Mukherjea, J., in Probhas Chandra Mallick v. Debendra Nath Das was directly applicable. Accordingly, the Court held that the lower courts were correct in dismissing the plaintiff’s claim for ejectment. Consequently, the appeal failed, the appeal was dismissed with costs, and the order of dismissal was affirmed. Agent for the appellant: P. K. Ghosh. Agent for the respondent: Sukumar Ghose.