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Smart Summary

Summary of Opinion: Appeal in an Ejectment Action

Factual and Procedural Background

This appeal arises from an action for ejectment. The plaintiffs (respondents) alleged that the defendants were tenants-at-will, had been given a proper notice to quit and nevertheless refused to vacate the disputed land. The defendants resisted the claim on two principal grounds:

  • That they held under a permanent lease dated 23 May 1848 granted to their predecessors; and
  • That, if the lease were not established, circumstances allowed an inference that the tenancy was originally of a permanent character.

At trial (the Court of first instance) the lease was found genuine and the plaintiffs' suit for ejectment was dismissed. On appeal to the Subordinate Judge, the decision of the trial court was reversed: the Subordinate Judge doubted the genuineness of the lease and held that, even if genuine, it was not proved to bind the landlords because the authority of the executant was not established. Further, the Subordinate Judge concluded that long possession and uniform rent were insufficient to show a tenancy originally permanent because the defendants had not proved they had raised substantial (permanent) structures on the land; accordingly he made a decree for ejectment.

The present opinion is from the appellate court on the defendants' further appeal against the Subordinate Judge's decree.

Legal Issues Presented

  1. Whether the lease dated 23 May 1848 is genuine and, if genuine, whether it is binding on the landlords (specifically whether the authority of the executant to bind the landlords was established).
  2. Whether, in the absence of proof of the lease, the established facts (long continuous occupation, uniform rent, heritable treatment of tenancy, residential letting) permit an inference that the tenancy in its inception was of a permanent character.
  3. To what extent the question of the nature of the tenancy is a question of fact, law, or a mixed question of fact and law, and whether the appellate court may draw legal inferences on a second appeal from the facts found below.

Arguments of the Parties

Appellants (Defendants) — Principal Arguments

  • The defendants asserted title under a permanent lease dated 23 May 1848 granted to their predecessors.
  • Alternatively, they argued that even if the lease were not proved, the tenancy's origin and treatment (long occupation by the original tenant, descent to his daughter, uniform rent, and residential use) justified an inference that the tenancy was originally permanent.

Respondent (Plaintiffs) — Principal Arguments

  • The respondents contended that the nature of the tenancy is a question of fact and that the appellate court, on a second appeal, should not disturb the Subordinate Judge's factual conclusion that the tenancy was not originally permanent.
  • The respondents relied on certain authorities (cited) to support the proposition that the question was factual and not open to interference on second appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ubilock Rat v. Dallied Rai, 3 C. 557 Interpretation of Section 90 of the Indian Evidence Act: showing execution of document by persons whose signatures it bears does not prove authority of those executants to bind others. The court accepted the principle relied on by the Subordinate Judge but observed that landlords had ratified the transaction and had accepted rent, so lack of proved authority was not a raised issue here.
Uggrakant Chowdhuri v. Harro Chunder Shickdar, 6 C. 209 Same proposition about the limits of Section 90 evidence. Used to explain that proof of signature does not establish authority; the appellate court nevertheless held that the landlords' conduct (ratification and acceptance of rent) precluded denying the lease on that ground.
Durga Mohan Das v. Rakhal Chandra Roy, 5 C.W.N. 801 Authority cited in support of the inference that a tenancy may be originally permanent under appropriate circumstances. Included among authorities the court relied on to conclude that the facts here legitimately permit an inference of permanent inception of tenancy.
Tarukpodo v. Shyama Churn, 8 C.L.R. 50 Support for drawing inference of permanency of tenancy from long possession and other factors. Relied upon as a precedent supporting the court's conclusion that the tenancy in its inception was permanent.
Prosuno v. Rattan, 3 C. 696; 1 C.L.R. 577 Support for inferring permanent tenancy from the facts of long occupation and other indicia. Relied on in the collection of authorities held to make the inference legitimate.
Govinda Chundra v. Ayinuddin, 11 C.L.R. 281 Authority supporting inference of permanent tenancy on stated factual matrix. Used to support the appellate court's view that the tenancy was originally permanent.
Juhooree Lall v. Dear, 23 W.R. 399 Supporting authority for inferring permanence from long occupation and consistent rent. Included among precedents justifying the inference of permanence.
Nubodoorga v. Dwarka Nath, 24 W.R. 301 Supporting authority for inferring permanent tenancy from facts. Relied upon in the appellate court's list of supporting decisions.
Dunne v. Nobo Krishna Mookerjee, 17 C. 144 Support for inference that tenancy may be originally permanent under certain facts. Included among the cases used to demonstrate the legitimacy of inferring permanence.
Caspersz v. Kedar Nath Sarbadhikari, 5 C.W.N. 858 Supportive authority for inferring tenancy permanence. Relied on as part of the body of precedent supporting the court's conclusion.
Nabu Mondul v. Cholim, 28 C. 896 Precedent listed among authorities supporting inference of permanence. Included in the court's list of supporting cases for the inference.
Beni Madhab v. Jai Krishna, 7 B.L.R. 152; 12 W.R. 495 Another authority cited in support of inferring permanence of tenancy from long occupancy and related facts. Counted among the precedents relied on by the appellate court.
Dulhin Golab Koer v. Balla Kurmi, 25 C. 744; 2 C.W.N. 580 Authorities cited by respondents to support that nature of tenancy is a question of fact. The court noted that expressions in such judgments might lend apparent support to the respondents' contention, but ultimately treated the issue as mixed law and fact.
Gungadhar Shikdar v. Ayinuddin Shah Biswas, 8 C. 960 Cited for the proposition that the nature of tenancy can be treated as a factual question. The court acknowledged reliance upon it by respondents but placed it in the broader context of mixed questions of law and fact.
Ram Gopal v. Shams Khaton, 20 C. 93; 19 I.A. 228 Judicial Committee decision establishing that the question may be a mixed question of fact and law. Used to support the court's view that drawing inferences as to nature of tenancy is, in part, a question of law.
Nabakumari Debi v. Behari Lal Sen, 34 C. 602; 6 C.L.J. 122; 11 C.W.N. 865; 4 A.L.J. 570; 9 Bom. L.R. 846; 17 M.L.J. 397; 2 M.L.T. 433 Shows that permanent structures, while important, are not essential to establish that tenancy was originally permanent; also cited as authority that question is mixed law and fact. The court relied on it to reject the Subordinate Judge's requirement that permanent structures must be shown; applied to hold that the tenancy may be held originally permanent without such structures.
William Grant v. Mrs. Robinson, 11 C.W.N. 242; 5 C.L.J. 178 Authority cited for the proposition that where a court is invited to draw an inference from established facts, that question is one of law. Applied to justify appellate interference to draw the legal inference of permanence from the facts found below.
Smith v. General Motor Calcutta Co., (1911) A.C. 188; 80 L.J.K.B. 839; 9 S.E.C. (N.S.) 163 House of Lords decision holding relation of parties (master & servant vs bailor & bailee) was a question of fact in that case; cited by respondents. The appellate court found the case distinguishable and noted it affirmed a factual finding where competing inferences were possible; used to explain limits of the respondents' argument.
Dinendra Narain Roy v. Tituram Mukerjee, 30 C. 801 Authority relied on by the appellate court in supporting its conclusion that the inference of permanent tenancy was appropriate. Included among cases showing that, on the facts here, the inference of permanence is irresistible.
Winterscale v. Sarat Chandra Banerjee, 8 C.W.N. 155 Authority supporting the appellate court's approach to drawing inferences about tenancy from established facts. Relied upon in concluding that the tenancy's inception was permanent.
Gopal Lall v. Tilluck Chand, 10 M.I.A. 183; 3 W. 11. (P.C.) 1 Judicial Committee authority cited among several that support drawing an inference of permanence. Used as part of the body of authorities justifying the inference of original permanence.
Dhunpat Singh v. Gooman Singh, 11 M.I.A. 433; 9 W.R. (P.C.) 3 Judicial Committee authority relied on for inference principles. Included among the precedents used to support the appellate court's conclusion.
Bam Chunder Dutt v. Jughesh Chander Dutt, 12 B.L.R. 229; 19 W.R. 353 Authority cited in the same context as other Judicial Committee decisions supporting inference of permanence. Counted among the cases relied on to show that permanence can be inferred without permanent structures.
Satta Saran Gohsal v. Mohesh Chandra Mitter, 12 M.I.A. 263; 2 B.L.R. (P.C.) 23; 11 W.R. (P.C.). 10 Judicial Committee authority supporting the appellate view on inference from facts. Included in the set of precedents supporting the court's legal conclusion.
Upendra Krishna Mandul v. Ismail Khan Mahomed, 32 C. 41; 8 C.W.N. 889 Authority cited for drawing inference of original permanence from the established facts. Relied upon as supporting precedent.
Nil Ratan Mandal v. Ismail Khan Mahomed, 32 C. 51; 8 C.W.N. 895 Authority cited in the same line as others supporting inference of tenancy permanence. Included among the precedents relied on by the appellate court.

Court's Reasoning and Analysis

The court divided its analysis along the two principal branches relied on by the defendants.

First branch — genuineness and binding effect of the 1848 lease:

  1. The Subordinate Judge did not explicitly find the lease to be forged; he only expressed suspicion about its genuineness and, more importantly, held that the lease would not bind the landlords because the authority of the person who executed it had not been proved.
  2. The appellate court accepted the legal proposition (drawn from Ubilock Rat v. Dallied Rai and Uggrakant Chowdhuri v. Harro Chunder Shickdar) that proof under Section 90 of the Indian Evidence Act establishes execution by the persons whose signatures appear but does not itself prove the authority of those executants to bind others.
  3. However, the appellate court observed that the landlords had not contested the binding nature of the lease on the ground of lack of authority in the courts below: the landlords had originally been infants when the lease was granted but, on attaining majority, they ratified the transaction, recognized the predecessor tenant and accepted rent for many years at the lease rate. Under those facts the landlords could not thereafter repudiate the lease as wholly unauthorised.
  4. Although remand to the Subordinate Judge for a specific finding on genuineness would have been necessary in a narrow sense, the appellate court found it unnecessary because it concluded the appellants could succeed under the alternative (second) branch of their case.

Second branch — inference that tenancy in its inception was permanent:

  1. The court assumed (for the sake of argument) that the 1848 lease might not be proved genuine and examined whether the proved facts nonetheless supported an inference of a tenancy originally permanent.
  2. Facts found below and treated as firmly established by the appellate court: Juggernath (the original tenant) was in possession for at least 36 years until his death in 1834; his daughter (the second defendant) had been in occupation for at least 20 years up to commencement of the suit; rent had been uniformly paid and never varied during these periods; the tenancy was treated by the landlord as heritable; and the land was let for residential purposes.
  3. On these facts the court concluded the inference that the tenancy in its inception was permanent was legitimate. The court cited a line of authorities to support that such factual indicia permit the legal inference of permanence.
  4. The appellate court addressed the Subordinate Judge's error: he had treated the presence of permanent structures on the land as essential to bring the case within the rule. The court held that although permanent structures may be an important factor, they are not essential — relying notably on Nabakumari Debi v. Behari Lal Sen and other precedents to reject the Subordinate Judge's restrictive approach.
  5. The court considered the respondents' contention that the question was purely one of fact and thus not open on a second appeal. It accepted that certain factual findings (length of tenancy, fixity of rent, etc.) are factual and not to be disturbed, but treated the drawing of the legal inference from those facts (i.e., whether the tenancy in its inception was permanent) as a question of law or at least a mixed question of law and fact. Therefore, the appellate court was entitled to draw that legal inference on the second appeal.
  6. Consequently, the court held that on the facts found by the Subordinate Judge the correct legal inference was that the tenancy in its inception was of a permanent character.

Holding and Implications

HOLDING: The appeal is allowed. The decree of the Subordinate Judge is set aside and the decree of the Court of first instance (which had dismissed the plaintiffs' ejectment suit) is restored. Costs were awarded to the appellants in all Courts.

Implications:

  • Direct effect on the parties: the defendants (appellants) succeed; the ejectment decree against them is overturned and the finding of the trial court that the lease was genuine (and/or that the tenancy was originally permanent) stands restored; costs follow.
  • Legal implications stated or applied in the opinion: the court endorsed the legal position that (a) proof under Section 90 of the Indian Evidence Act establishes execution but does not, by itself, prove authority to bind another; (b) long continuous occupation, unvaried rent, treatment of tenancy as heritable and residential letting can legitimately support the legal inference that a tenancy was originally permanent; and (c) the presence of permanent structures, while important, is not an essential prerequisite to draw that inference. The opinion also clarified that whether to draw the inference of permanence from established facts is a question of law or a mixed question of law and fact, and thus may be addressed on appeal.

No attempt has been made in this summary to add facts or conclusions not expressly contained in the provided opinion. Where the opinion did not present certain types of detail (for example, extended party-by-party factual evidence beyond the core findings), those matters have been omitted in conformity with the source text.

Show full summary ...

    Mohoram Sheikh Chaprasai And Anr. v. Telamuddin Khan And Anr.

    1. This is an appeal on behalf of the defendants in an action in ejectment. The case for the plaintiffs respodents is that the defendants who were tenants-at-will were in occupation of the disputed land, that their tenancy has been terminate by a proper notice to quit and that they nevertheless refused to vacate the land. The defendants resisted the claim Substantially on two grounds, namely, first, that, they held under a permanent lease granted to their predecessors on the 23rd May 1848; and, secondly, that if the lease was not, established, there were circumstances from which the Court could draw the inference that the tenancy in its inception was of a permanent character. The Court of first instance found in favour of the genuineness of the lease and dismissed the suit. Upon appeal, the Subordinate Jude has declined to give the defendants the benefit of the lease for two reasons. He holds, first, that it is doubtful whether the lease is genuine, and, secondly, that if it is genuine, it is not proved to be binding up in the landlords inasmuch as, on the face of it, it appears to have been executed by a person whose authority has not been established. The Subordinate Judge then proceeds to hold that, although the defendants have proved that they have been in occupation of this land for many years at a uniform rate of rent and although the property has descended from the original tenant to his daughter, these circumstances are not sufficient, to justify an inference that the tenancy in its inception was of permanent character, because the defendants have not proved that they raised substantial structures on the land. In this view, the Subordinate Judge has reversed the decision of the original Court and made a decree, for ejectment.

    2. In support of the appeal, it has been contended that the decision of the Subordinate Judge is erroneous and on both the branches of the case reference has been made to a number of judicial decisions bearing upon the questions discussed. In our opinion, there is no room for serious controversy that the decision of the Subordinate Judge cannot be supported.

    3. In so far as the first branch of the case is concerned, as we have already stated, the Subordinate Judge has not explicitly found that the lease is not genuine. He suspects its genuineness and does not come to any specific finding; but he held that it was not binding upon the landlords, because the authority of the executant was not proved. This view of the Subordinate Judge is clearly erroneous. On the authority of the decision in Ubilock Rat v. Dallied Rai 3 C. 557 and Uggrakant Chowdhuri v. Harro Chunder Shickdar 6 C. 209 the Subordinate Judge has held that the provisions of Section 90 of the Indian Evidence Act merely establish that the document was executed by the persons whose signatures it purports to bear; bat that cannot and does not prove the authority of the executants to bind the landlord. This view is unquestionably sound. But it must be remembered that the landlords did not suggest in either of the Courts below that the leasa was not binding upon them, because it had been executed on behalf of their predecessors by a person who had no authority to bind them in their transaction. The question was not raised for very obvious reasons. No doubt, the lease was originally granted on behalf of the landlords who were at the time infants; but upon attainment of majority, they ratified the transaction, recognised the predecessor of the defendants as their tenant and for many years accepted rent from him at the rate mentioned in the lease. Under these circumstances, it was not open to them to repudiate the transaction as wholly unauthorised. No question, therefore, arises in this case as to the authority of the executants to bind the landlords. In this view, it would be necessary for us to remand the case to the Subordinate Judge for a specific finding upon the question of the genuineness of the lease. It is needles, however, to adopt this course, because we are of opinion that the appellants are entitled to succeed upon the second branch of the case.

    4. In so far as the second branch of the case is concerned, if we assume for a moment that the lease of the 23rd May 1848 has not been proved to be genuine, the position is that the origin of the tenancy is unknown. It has been established that the original tenant Juggernath was in occupation up to the time of his death in 1834. Juggernath was thus in possession for at least 36 years upon payment of a small rent which was never varied in his lifetime. Since his death, his daughter, the second defendant, has been in occupation for at least 20 years up to the commencement of this suit. It has not been suggested of behalf of the landlords that the rent was ever varied during this period when the successor in-interest of the original tenant was in occupation. We have, therefore, four facts firmly established in the case: first, that the original tenant and his successor have been in occupation of the land for over 60 years; secondly, that the rent has never been varied; thirdly, that the tenancy has been treated by the landlord as heritable; and, fourthly, that the land was let out for residential purposes. Upon these facts we are of opinion that the inference is legitimate that the tenancy in its inception was permanent Durga Mohan Das v Rakhal Chandra Roy 5 C.W.N. 801; Tarukpodo v. Shyama Churn 8 C.L.R. 50; Prosuno v. Rattan 3 C. 696 : 1 C.L.R. 577; Govinda Chundra v. Ayinuddin 11 C.L.R. 281; Juhooree Lall v. Dear 23 W.R. 399; Nubodoorga v. Dwarka Nath 24 W.R. 301; Dunne v. Nobo Krishna Mookerjee 17 C. 144; Caspersz v. Kedar Nath Sarbadhikari 5 C.W.N. 858; Nabu Mondul v. Cholim 28 C. 896; Beni Madhab v. Jai Krishna 7 B.L.R. 152 : 12 W.R. 495.

    5. The learned Vakil for the respondent has, however, contended that the question of the nature of the tenancy is one of fact and that it is not open to us in second appeal to interfere with the conclusion of the Subordinate Judge upon this part of the case. In support of this view, he has placed reliance upon the cases of Dulhin Golab Koer v. Balla Kurmi 25 C. 744 : 2 C.W.N. 580; Gungadhar Shikdar v. Ayinuddin Shah Biswas 8 C. 960 and Durga Mohan Das v. Rakhal Chandra Roy 5 C.W.N. 801. It may be conceded that there are possibly expressions in some of these judgments which lend some apparent support to the contention of the respondent. But it is fairly clear from the decision of the Judicial Committee in the case of Ram Gopal v. Shams Khaton 20 C. 93 : 19 I.A. 228 and Nabakumari Debi v. Behari Lal Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 that the question is really a mixed question of fact and law. No doubt, the question is one of fact to this extent that we are not in a position to interfere with the findings of the Subordinate Judge as to the length of the tenancy, the fixity of rent, and other similar matters. But, in so far as the Court is invited to draw an inference as to the nature of the tenancy from the facts found by the Subordinate Judge, the question is undoubtedly one of law. William Grant v. Mrs. Robinson 11 C.W.N. 242 : 5 C.L.J. 178. Much reliance was, however, placed by the learned Vakil for the respondent upon the decision in Smith v. General Motor Calcutta Co. (1911) A.C. 188 : 80 L.J.K.B. 839 : 9 S.E.C. (N.S.) 163. That case is clearly distinguishable. There the question arose whether the relation between the parties to the suit was that of master and servant or of bailor and bailee. The House of Lords, in affirmance of the decision of the Court below, held that the question was one of fact aud not of law. It was observed that it was not argued by the parties that, upon the admitted facts, as a matter of law, the relation of the parties was that of master and servant or bailor and bailee. One of the parties relied upon certain circumstances which unquestionably support the view that the relation between the parties was that of bailor and baillee, while his opponent relied upon other circumstances which supported the position that the relation between the parties was that of master and servant. As Lord Atkinson put it, there was thus a conflict of evidence and the Court was called upon to discover upon the evidence the true relation between the parties. Here the question is whether, upon the facts which have been found by the Court below, it can legitimately be held that the tenancy in its inception was of a permanent character. There can be no doubt, that in view of the decision of this Court in the cases of Dinendra Narain Roy v. Tituram Mukerjee 30 C. 801; Winterscale v. Sarat Chandra Banerjee 8 C.W.N. 155 and of the Judicial Committee in the cases of Gopal Lall v. Tilluck Chand 10 M.I.A. 183 at p. 191 : 3 W. 11. (P.C.) 1; Dhunpat Singh v. Gooman Singh 11 M.I.A. 433 : 9 W.R. (P.C.) 3; Bam Chunder Dutt v. Jughesh Chander Dutt 12 B.L.R. 229 : 19 W.R. 353; Satta Saran Gohsal v. Mohesh Chandra Mitter 12 M.I.A. 263 : 2 B.L.R. (P.C.) 23 :11 W.R. (P.C.) 10; Upendra Krishna Mandul v. Ismail Khan Mahomed 32 C. 41 : 8 C.W.N. 889; Nil Ratan Mandal v. Ismail Khan Mahomed 32 C. 51 : 8 C.W.N. 895 and Nabakumari Debi v. Behari Lall Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 the inference is irresistible that the tenancy in its inception was of a permanent character. The Subordinate Judge himself, indeed, would have arrived at the same conclusion but for the error into which he fell when he assumed that to bring a case within this rule, it was essential to establish that there were permanent structures on the land. But the decision of the Judicial Committee in Nabakumari Debi v. Behari Lal Sen 34 C. 602 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.T. 433 shows conclusively that although the presence of permanent structures on the land may be a very important factor, it is by no means essential to establish that the tenancy in its inception was of a permanent character. The decree of the Subordinate Judge cannot consequently be supported.

    6. The result is that the appeal is allowed, the decree of the Subordinate Judge set aside, and that of the Court of first instance restored with costs in all the Courts.

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    Comments

    Mohoram Sheikh Chaprasai And Anr. v. Telamuddin Khan And Anr.
    (Jul 17, 1911)