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  • Jwala Prasad
  • Adami, JJ.
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  • Adami, JJ.
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Smart Summary

Summary of Opinion — Jwala Prasad, J. (Second Appeal arising from suit for ejectment)

Factual and Procedural Background

This second appeal arises from a suit for ejectment. The plaintiff (appellant) is the malik or proprietor of Forbesganj Bazar, where the land in suit is located; the land measures approximately 3 bighas (about 1-32 acres). The land had been held by Gulab Chand under a lease dated 1892 (Ex. H). The defendant-respondent purchased the rights of Gulab Chand and also took a lease from the plaintiff dated 20th Aghan 1307 (5th December 1899) (Ex. 8-A).

The appellant filed the plaint in the Court of the Munsif of Basantpur on 22 June 1908. In the plaint the appellant alleged that the lease to the defendants was from year to year and conferred no permanent right; that because the value of the land had risen and other tenants paid higher rent, defendants were served notices either to take a fresh settlement (fresh rent) or to quit; the defendants neither took a fresh settlement nor quit. The plaintiff sought khas possession from 1st Baisakh 1326 M.S and arrears of rent of Rs. 102-4-3.

The courts below dismissed the suit for ejectment by concurrent findings but awarded the plaintiff a decree for a year's rent (this portion was not appealed). The present appeal is against the refusal of ejectment relief. The appeal was heard and judgment delivered by Jwala Prasad, J., with Adami, J. concurring; the appeal was dismissed with costs.

Legal Issues Presented

  1. Whether the lease in favour of the defendants was a permanent lease in its inception (i.e., intended to be bemaiyadi or permanent) or a lease from year to year.
  2. Whether subsequent acts and conduct of the lessor (plaintiff) and the lessees (defendants) converted the lease into a permanent one and, if so, whether the lessor is estopped from bringing a suit for khas possession.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The lease granted to the defendants was a year-to-year lease and did not give them any permanent right.
  • Because the land's value had increased and other tenants were paying higher rent, the plaintiff had served notices to the defendants to take a fresh settlement (i.e., pay higher rent) or quit; defendants refused to do either.
  • The plaintiff sought to eject the defendants and claimed khas possession from 1st Baisakh 1326 M.S and arrears of rent (Rs. 102-4-3).

Respondents' (Defendants') Arguments

  • The lease created a bemaiyadi or permanent tenancy, not a year-to-year tenancy.
  • Under the lease the defendants had constructed pucca buildings with the permission of the plaintiff and on payment of nazrana; therefore the plaintiff is estopped from bringing a suit for ejectment.
  • In the alternative, if found liable to be ejected, the defendants sought compensation of Rs. 32,000 for the pucca buildings they erected.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Baroda Prasad v. Prasanna Kumar Illustration that a bemaiyadi (lease without fixed term) may, in particular circumstances, not confer a permanent grant. Cited by appellant's counsel; the Court noted these decisions applied to their particular facts and leases, but held the present lease differed and was to be regarded as permanent at inception.
Mahim Chandra v. Anil Bandhu Same general proposition as above regarding bemaiyadi leases not necessarily conferring permanent rights in all circumstances. Recognized as fact-specific authorities; the Court distinguished them from the present contract and facts and did not follow them for this lease.
Parshen Kuer v. Tulsi Kuer Same general proposition regarding bemaiyadi leases and permanence. Held to be applicable to their respective facts but not to the present case; the Court considered the present lease intended to be permanent.
Kailaspati Choddhury v. Muneshar Choudhury Another authority showing bemaiyadi leases may not amount to permanent grants depending on facts. Treated as fact-specific and distinguished from the present case.
Promoda Nath Roy v. Sri Govind Choudhury Decision with facts very near to the present case (implicitly supporting treatment of lease as permanent). The Court observed the present case is very near that case and followed its view that the lease was permanent at inception.
Beni Ram v. Kundan Lal Applied in argument: in that case the lease term was defined and no express permission for building was given; principle that tenant building under a defined term cannot acquire the right to prevent lessor from taking possession when lease ends. The Court distinguished Beni Ram because in the present case there was no definite term and there was express permission to build; therefore the observation in Beni Ram (and Ramsdon v. Dyson, relied on there) was not applicable here.
Ramsdon v. Dyson Lord Chancellor's observation: if a tenant builds on land held under a defined term he cannot acquire a right to prevent the lessor from taking possession when the lease determines—tenant knew the extent of his interest. Quoted by the Court when discussing Beni Ram, and distinguished because in the present case the lease lacked a defined term and express permission to build had been granted.
Sir L.E. Ralli v. A.H. Forbes Doctrine of estoppel applied against an owner claiming to eject lessees under circumstances involving permission and conduct; decided in the same Court. The Court held this case did not help the appellant (because facts differ) but the doctrine of estoppel laid down there was applicable in principle to the present facts and supported estoppel against ejectment.

Court's Reasoning and Analysis

The Court addressed the two issues sequentially and applied textual construction of the lease and factual findings about the parties' conduct.

  1. Construction of the lease (Issue 1):
    • The lease contained no definite fixed term; the Court stated that absence of a definite term alone does not determine whether a lease is permanent or year-to-year; the intention of the parties, as expressed by covenants, must be ascertained.
    • The Court identified key covenants: the lease's purpose (to enable the lessee to erect a Gola house and conduct buying and selling), a statement that the lease was bemaiyadi (without definite period), stipulations that the lessee shall not construct pucca buildings without express written permission and that if pucca buildings were erected without such permission the lessee would be liable to eviction, and a further covenant that erection of pucca building or pucca well/indara had to be done according to the lessor's advice.
    • Balancing these terms, the Court inferred that the parties contemplated erection of pucca buildings and that the lease was intended to be permanent rather than merely year-to-year. The Court acknowledged precedents where bemaiyadi leases were not held permanent, but treated those as fact-specific and distinguished them; it found the present facts close to Promoda Nath Roy v. Sri Govind Choudhury and agreed that at inception the lease was permanent.
  2. Effect of subsequent conduct and estoppel (Issue 2):
    • The defendants applied for permission to erect pucca buildings on 29 November 1907; permission was expressly granted upon acceptance of a nazrana of Rs. 21.
    • The plaintiff issued Furwangis to the defendants in 1909 (Exhibits 18 and 18-A), which confirmed that permanent structures standing on the land were erected with the permission and sanction of the lessor. The Furwangis were issued after the buildings were completed and confirmed the plaintiff's earlier permission.
    • There was no document or indication that the plaintiff demanded a higher rent as condition for permitting construction nor that the construction was at the defendants' risk (i.e., that the lessor reserved the right to eject once the lease term ended).
    • Given that the plaintiff did not merely abstain from interfering but actively granted permission and later confirmed the buildings, the Court concluded that the plaintiff is estopped from claiming khas occupation by ejecting the defendants. Even if the lease had been originally of limited duration, the parties' conduct amounted to a supplementary agreement (or at least an estoppel) rendering the tenancy effectively permanent and precluding lessor's re-entry.
    • The Court considered Beni Ram v. Kundan Lal and Ramsdon v. Dyson (authority that tenants who build under a defined term cannot claim permanence), but distinguished those authorities because in those cases the term was defined and there was no express permission to build. The Court accepted the Lord Watson passage (quoted) that equitable estoppel requires conduct from the owner indicating that the tenancy right has been contracted to change into a perpetual right of occupation; the Court found such conduct present here.
    • The Court further noted that the principle of estoppel as applied in Sir L.E. Ralli v. A.H. Forbes supports the result, even though that earlier case involved a year-to-year lease and is not identical on facts.

Holding and Implications

Holding: The appeal is dismissed. The Court agreed with the courts below on both issues: (1) that the lease was permanent in its inception, and (2) that the plaintiff's conduct in giving express permission and subsequently confirming the construction of pucca buildings estopped him from claiming khas possession and ejecting the defendants. The Court dismissed the appeal with costs. Adami, J. concurred.

Implications:

  • Direct effect on the parties: The plaintiff's claim for ejectment was refused and the defendants retain their occupation under the lease as construed; the portion of the decree below awarding the plaintiff a year's rent was not contested in this appeal and remains unaffected by this decision.
  • The Court applied established principles (construction of leases by reference to parties' intention and the doctrine of equitable estoppel) to the facts and distinguished contrary authorities on their facts. The opinion does not purport to lay down a novel rule of law; it resolves the present dispute by applying existing principles to the specific terms and conduct recorded in the lease and related documents.

Note: This summary reproduces only the facts, issues, arguments, authorities, reasoning and outcome explicitly stated in the provided opinion; no information has been invented or inferred beyond the text supplied.

Show full summary ...

    A.H. Forbes v. Hanuman Bhagat

    Jwala Prasad, J.:— This second appeal arises out of a suit for ejectment. The Courts below have by concurrent findings dismissed the suit. The plaintiff is therefore, the appellant before us. He is the Malik or proprietor of for besgunj Bazar where the land in suit is situate. It measures 3 bighas odd, or 1-32 acres. The land was formerly held by one Gulab Chand under a lease (Ex. H.), dated 1892. The defendant-respondent purchased the rights of Gulab Chand. He also took lease of the land from the plaintiff (Ex. 8-A), dated 20th Aghan 1307 (5th December 1899). The appellant commenced the present action by filing a plaint in the Court of the Munsif of Basantpur on the 22nd of June 1908. In the plaint he stated that the lease to defendant was from year to year and that they were given no permanent right under the lease and that as the value of land of Forbesganj Bazar had increased and other tenants there under the plaintiff were paying rent at higher rate, the defendants were served with notices to take fresh settlement of the land as their existing runt was rather low or to quit the same: but the defendants neither took any fresh settlement nor gave up the land. The plaintiff claimed khas possession of the land by ejecting the defendants from 1st Baisakh 1326 M.S and also for arrears of rent amounting to Rs. 102-4-3.

    2. The Courts below have given the plaintiff a decree for an ears of rent and this portion of the decree is not under appeal before us. Therefore the appeal before us is only against the decree refusing the plaintiff's relief for ejecting the defendants.

    3. The defendants in resisting the plaintiff's claim asserted that the lease granted to them created a bemaiyadi or permanent tenancy and not one from year to year; that in terms of the lease the defendants have constructed pucca buildings on the land at immense cost with the permission of the plaintiff and on payment of the Nazrana to him and therefore the plaintiff is estopped from bringing the suit of ejectment. In the alternative the Defendants pleaded that in case they be found liable to be ejected, they be awarded Rs. 32,000 as compensation for the pucca buildings erected by them.

    4. Two questions were agitated in the Court below, namely:—

    (1) Whether the lease in favour of the defendants was a permanent lease in its inception, and

    (2) Whether the subsequent acts and conduct of the lessor and the lessees converted the lease into a permanent one and if so, whether the plaintiff lessor is therefore estopped from bringing a suit for khas possession of the land in suit. The Court below has decided both to issues against the plaintiff. Mr. Sen on behalf of the appellant impugns the finding of the Court below on both the issues. Now the plaintiff's suit will fail if any of the aforesaid issues is decided against him. The first issue depends upon the construction of the document in question. It is conceded that no definite term was fixed in the lease. That in itself will not show either that the lease was of a permanent character or that it was for a term of year. As to whether this indefinite term was intended to be perpetual or permanent depends upon the intention of the parties as gathered from the covenants in the lease. The learned Subordinate Judge has in his judgment summarised the terms. It is not necessary to refer to all of them for the purposes of this appeal. We may, however, refer to the following terms only:—

    (1) The purpose of the lease was to enable the lessee to erect Gola house and to purchase and sell all sorts of commodities therein, or in other words to open his business therein;

    (2) The lease was not limited for any definite period but that it was a bemaiyadi lease or a lease without any term;

    (3) … That the lessee shall not have the power to construct any pucca building without the express and written permission of the lessor and if that stipulation be violated and pucca building be raised by the lessee without such permission of the lessor, he, the leasee shall be liable to be evicted; and

    (4) … In case the lessee wants to erect pucca building and to have a pucca well or Indara he shall have to do so according to the advice of the lessor.

    5. Now it is clear from the aforesaid terms that the lease was for the purpose of gola business and for building houses. It is also clear that the erection of pucca buildings for the business as well as for the purpose of residence was in the contemplation of the parties with the condition that permission for erecting pucca structures will have to be taken from the lessor. Under these circumstances the inference is not unreasonable that the lease in question was meant to be of a permanent character and not from year to year. No doubt, as observed above, a bemaiyadi lease or a lease without any term may in the circumstances of a particular case be shown not to confer any permanent grant as was held in the cases relied upon by the learned Counsel on behalf of the appellant: Baroda Prasad v. Prasanna Kumar (1); Mahim Chandra v. Anil Bandhu (2) Parshen Kuer v. Tulsi Kuer (3) and Kailaspati Choddhury v. Muneshar Choudhury (4). The decisions in those cases were applicable to the particular facts decided and the leases concerned. The present case is very near the case reported as Promoda Nath Roy v. Sri Govind Choudhury (5). Upon the facts in the present case and the lease in question we are not prepared to differ from the view of the Court that at its inception the lease was a permanent lease, and not one from year to year.

    6. The respondents are on firmer ground upon issue No. 2. Now it is undisputed that on the 29th of November 1907 the defendants applied for permission to erect pucca buildings on the land in question in terms of clause (3) of the lease, and the permission was expressly granted on acceptance of Nazrana of Rs. 21. The plaintiff has filed Purwangis issued to the defendants in 1909 (Exhibits 18 and 18-A). These Furwangis confirm the permission already granted stating that the permanent structures standing on the land were erected with the permission and sanction of the lessor. Now, before the foundation was laid the defendants applied for permission in 1907 and they were given that permission. The Purwangis referred to above, which were granted two years after, indicate that the buildings had already completed and the construction thereof was confirmed by the plaintiff. In none of these documents is there any indication of the plaintiff having demanded a higher rent as a condition for the erection of the pucca buildings on the land in question; nor is there any suggestion that the erection of such buildings would not confer upon the defendants the right to remain on the land permanently or that the construction of the buildings was to be at the risk of the defendants (liability to be ejected on the ground of the lease being only of a limited duration). The plaintiff in this case did not only acquiesce in the construction of the buildings in question by merely abstaining from interference, but he actually granted permission for erecting the buildings. Therefore, even if the lease was of a temporary duration limited by terms, or a lease from year to year reserving the right of re-entry in the lessor, I am afraid the plaintiff would have been estopped from claiming the right of khas occupation by ejecting the defendants. The lease even if originally for a limited term, would then have been construed to have been made permanent in the sense that the plaintiff would not have been entitled to re-enter. The original terms of the lease would then have been supplemented by a fresh contract by the conduct of the parties whereby the defendants would have acquired a right of occupation over the land in question. The learned Counsel on behalf of the appellant relies upon the case of Beni Ram v. Kundan Lal (6). In that case the term of the lease was defined and no express permission for building was given by the lessor. Under those circumstances, the observation of the Lord Chancellor in Ramsdon v. Dyson (7) was applicable to the facts of that case, to the effect that if a tenant builds on the land which he holds under a term he cannot acquire any right to prevent the lessor from taking any possession of the land and building when the lease determines; he knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end. On the other hand, Lord Watson in delivering the judgment of their Lordships of the Judicial Committee observed; “In order to raise the equitable estoppel which was enforced against the appellants by both the appellate Courts below, it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence from interfering, or in active intervention, was sufficient to justify the legal inference that they had, by plain indication, contracted that the right of tenancy, under which the lessee originally obtained possession of the land, should be changed into a perpetual right of occupation.”

    7. In the present case the Courts below have held that the plaintiff in the present case had actually given express permission to the defendants to construct buildings on the land in question and thereby he contracted that the right of tenancy would continue principally so as to confer upon the defendant the right of permanent occupation.

    8. The case of Sir L.E Ralli v. A.H Forbes* (8) decided in this Court, does not seem to help the appellant. In that case the lease was from year to year, whereas in the present case the lease is without any term. On the other hand, the principle laid down in the above case as to the doctrine of estoppel seems to apply to the present case. Upon the circumstances not very dissimilar to those of the present one, the learned Chief Justice applied the doctrine of estoppel against the claim of Mr. Forbes to eject the defendants from the land leased to them. We agree with the view taken by the Court below on both the issues and dismiss the appeal with costs.

    9. Adami, J.:— I agree.

    10. Appeal dismissed.

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    Comments

    A.H. Forbes v. Hanuman Bhagat
    (Feb 6, 1923)