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1927 Supreme(SC) 22
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD SINHA, LORD BLANESBURGH, AND LORD SALVESEN.
DHANNA MAL - Appellant
Versus
MOTI SAGAR - Respondents
On appeal from the High Court at Lahore.
Decided On : Mar. 3. 1927.
Solicitors for appellants:T. L. Wilson & Co. Solicitor for respondent: H. S. L. Polak.
Important Points
Subject
Property Law - Landlord and Tenant
Act Referred
Headnote
(B) Second Appeal - Scope of review - While appellate courts are generally bound by findings of fact, the determination of whether a tenancy is permanent or precarious is a legal inference drawn from proved facts and not a question of fact itself, making it a mixed question of law and fact reviewable on second appeal.
(C) Res Judicata - A decree for the enhancement of rent does not necessarily operate as res judicata regarding the permanent or temporary nature of the tenancy, particularly where judicial opinions on the matter were not concluded or were effectively withdrawn.
Facts of the case:
A landlord brought a suit for ejectment and arrears of rent against tenants who claimed their tenancy was permanent. The tenants had erected buildings on the land after being notified in writing that the holding was temporary and that they were not entitled to erect buildings. A previous suit for rent enhancement had resulted in a decree for increased rent, which the tenants had paid without protest. Evidence included an unregistered declaration regarding the terms of the tenancy and a sale deed where the vendor's covenants for title to the land were qualified, making the vendee responsible for any disputes raised by the owner.
Findings of Court:
The court found that the unregistered declaration was inadmissible in evidence. It held that the previous rent enhancement decree did not conclusively determine the nature of the tenancy. Based on the qualified sale deed, the tenants' own previous pleadings (which suggested the tenancy lasted only as long as the buildings existed), and the continued payment of enhanced rent, it was determined that no permanent tenancy had been established.
Issues: Whether an unregistered lease document is admissible in evidence; whether a decree for rent enhancement constitutes res judicata on the nature of the tenancy; and whether the determination of a tenancy's nature is a question of fact or a legal inference.
Ratio Decidendi: The court ruled that the nature of a tenancy (permanent or precarious) is a legal inference from facts, allowing it to be reviewed in a second appeal. Furthermore, the lack of absolute title covenants in a sale deed and the acceptance of enhanced rent are strong indicators against the existence of a permanent tenancy.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
-
landlord and tenant
- tenancy nature (permanent vs at will)
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landlord and tenant
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practice and procedure
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evidence
- admissibility of unregistered documents
-
civil procedure
- res judicata
- second appeal
-
evidence
Judgement
Appeal (No. 110 of 1925) by special leave from a decree of the High Court (March 17, 1922), reversing a decree of the District Judge of Dharwar (December 18, 1917) which reversed a decree of the Subordinate Judge of Delhi.
The respondent as ground landlord of a plot of land in Sadar Bazar Cantonment, Delhi, brought the present suit in 1915 to eject the appellants, the tenants, after notice. The defendants pleaded, among other defences, that the tenancy was permanent.
The facts appear from the judgment of the Judicial Committee. It may be added that the buildings which had been erected by the original tenants having been destroyed by fire in 1911, buildings (existing at the date of the suit) were erected after the landlord had given the tenants written notice that their holding was temporary and that they were not entitled to erect buildings.
The Subordinate Judge decided all the issues material to the present appeal in favour of the plaintiff, made a decree for ejectment, but gave the defendants a year within which to remove their buildings.
On appeal to the District Court the decree was reversed and the suit dismissed. The District Judge, inferring that the land had been let for the purpose of building, and regarding the origin of the tenancy as unknown, held that the tenancy was to be presumed to have been permanent. He dismissed the suit.
On a second appeal to the High Court the decree of the Subordinate Judge was restored, subject to a modification, stated at the end of the present judgment, as to the buildings.
The defendants were out of time in applying for a certificate to enable them to appeal to the Privy Council, but obtained from the Judicial Committee special leave to appeal.
1926. Nov. 5, 8. De Gruyther K.C., Wallach and Ali Afzar for the appellants. Having regard to the facts that the land was let for the purpose of building, and the long period during which the tenancy has continued, it should be presumed that the tenancy was permanent Afzal-un-nisa v. Abdul Karim (( 1919) L. R. 46 I. A. 131.), approving Caspersz v. Kadir Nath Sarbadhikari . (( 1901) I. L. R. 28 C. 738.) [Reference was also made to Dunne v. Nobo Krishna Mookerjee (( 1889) I. L. R. 17 C. 144.); Barada Prosad Barman v. Prasanno Kumar (( 1912) 16 Cal. W. N. 564.); Ismail Khan v. Jaigun (( 1900) I. L. R. 27 C. 570.); Promada Nath Roy v. Srigobind Chowdhry (( 1905) I. L. R. 32 C. 648.) ; Muhammad Alam v. Ajab ( 1882 P. R. No. 34.); Karim Baksh v. Balak Ram , ( 1886 P. R. No. 112.)] Though the High Court was entitled to draw inferences of law, they were bound by the findings of fact in the District Court, including the finding that the land was let for building purposes.
Dunne K.C., Sir George Lowndes K.C. and Dube for the respondent. There was no evidence that the land was let for building purposes. The District Judge merely inferred that from the fact that the land was bazar land. The question whether the tenants had established that the tenancy was permanent was one of inference of law from the facts found on the evidence; the High Court had jurisdiction in second appeal Nafar Chandra Pal v. Shukur . (( 1918) L. R. 45 I. A. 183.) The tenancy was not of unknown origin, as it was not one as to which evidence could not be produced to prove the terms. Having regard to the payment of rent at an enhanced rate, and other facts of the case, a permanent tenancy was not proved Ram Ranjan Chuckerbutty v. Ram Narain Singh (( 1894) L. R. 22 I. A. 60.); Upendra Krishna Mandal v. Ismail Khan Mahomed (( 1904) L. R. 31 I. A. 144.); Nilratan Mandal v. Ismail Khan Mahomed (( 1904) L. B. 31 I. A. 149.); Seturatnam Aiyar v. Venkatachala Gounden . (( 1918) L. R. 47 I. A. 76.) In Afzal-un-nisa v. Abdul Karim (( 1919) L. R. 46 I. A. 131.) the landlord had given receipts which admitted that the tenancy was permanent. By the decree for enhancement of rent in the suit of 1906 it was res judicata that the tenancy was not permanent; the view of the District Judge i
