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 in that