JUDGMENT
The Officiating Chief Justice. — These appeals arise in suits instituted by the plaintiffs to eject the defendants from the lands occupied by them in what is called the Tinnevelly Settlement. This settlement consists of a large piece of land in the town of Madras. A number of houses, some brick-built and others mere huts had been built mostly by men from the Tinnevelly District in which they lived and carried on their respective occupations. It would appear that at first almost all the houses were merely thatched huts, but when a considerable fire broke out in the settlement about forty years ago, the Municipal Corporation refused license for the building of Katcha houses.
Then brick-built shops and houses came more largely into existence. The settlement commenced about sixty years ago, the occupation of most of the settlors being the boiling of paddy and the pounding of rice. The common and principal pleas in defence in these suits are that in the several plots of land in the occupation of the defendants, their ancestors or predecessors-in-title had been granted a permanent right of occupation, that the lands were leased for building purposes and the plaintiffs were not therefore entitled to eject the defendants, and that in any case before they could be ejected, they were entitled to be compensated for the improvements which they had made on the property.
In all the cases, it has been proved that the landlord has been enhancing the rent on more than one occasion; and this has been submitted to by the tenants from time to time. But until the date of these suits there has been no eviction; and the superstructures were all built by the tenants with the knowledge of the landlords. In some cases, the superstructures have changed hands, the transfetees being accepted by the plaintiffs as tenants in place of the transferors. There can be no doubt that the lands which are situated in the Town and are not agricultural lands were let for building purposes and in fact that is the use that would ordinarily be made of them. The rent originally fixed in most cases was Rs. 1-8-0 per month, and it has gradually been enhanced to Rs. 3. The last enhancement took place as recently as 1910, many of the shops and houses are of a substantial character and the cost of buildings then ranged, according to the defendants' case from Rs. 1,500 to Rs. 3,000.
I shall first deal with Appeal No. 22. In this case, the agreement Exhibit C under which the defendant holds the land has been proved. It is called “a ground rent agreement” and states that Rs. 1-8-0 has been settled as the monthly rent for the ground covered by the thatched house which the tenant had purchased and in which he was residing. It also provides that the tenant should undertake not to do certain acts, such as the rearing of pigs, etc., nor have any drunken brawls or dice-play and that if he acted contrary to this covenant, the landlord would be entitled to recover Rs. 3 per month as rent. It says further that the landlord will also be entitled on breach of the agreement to eject the defendant. But I cannot infer from the existence of this special covenant and the penalty provided for its breach, that the plaintiff granted a permanent right of occupation or that they were not entitled to eject the tenant except for the violation of this covenant. Exhibit C clearly creates a monthly tenancy and the landlord's right to recover the land by giving a proper notice as required by the law cannot be held to be negatived by the fact that he has reserved to himself a further right to eject the tenant in certain contingencies when the ordinary rules regarding notice need not be observed. I am not prepared to hold, nor has the learned Trial Judge so held, that any permanent right of occupation was created in the land concerned in this suit by any express agreement.
Then has the defendant acquired such a right by the operation of equitable estoppel? The law governing such cases was laid down by Lord Chancellor Cranworth and other learned Lords in the leading case of Ramsden v. Dyson, which has always been followed in India and adopted by the Privy Council in Beni Ram v. Kundan Lal. The facts of the last case were very similar to those of the present case. There also, a number of buildings, some katcha and some pakka of the value about Rs. 1,000 to 1,500 were constructed with the knowledge of the landlord and he received rents from the occupants for number of years. Their Lordships say that the rule or principle which was applied to those facts by the Courts in India, namely, “If a man permits another to build upon his land, and with the knowledge that building is being erected, stands by and does not prevent the other from doing so, then, no doubt, equity comes in and by the rules of equity which in this respect are the same as the rules of law, he cannot eject that other person,” is a loose and inadequate statement of the rule of equity. They observe that “the proposition, if it were carefully supplemented, might possibly be made to apply to the case where the owner of land sees another person erecting buildings upon it, and knowing that such other person is under the mistaken belief that the land is his own property, purposely abstains from interference, with the view of claiming the buildings when it is erected.” Then they point out that “the respondents knew that the predecessors of the appellants were the owners of the land let, and that their own title was limited to their occupation of the land as tenants, upon the terms and for the periods provided by the original lease” (in that case). They lay down “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 implication, contracted that the right of tenancy, under which the lessees originally obtained possession of the land, should be changed into a perpetual right of occupation.” Here also the original tenancy was a monthly tenancy. I find nothing in the facts of this case from which any inference can be drawn that the defendants or their predecessors-in-title contracted that such a tenancy should be changed into a permanent right of occupation. On the other hand, the facts that the landlord has been enhancing the rent as of right from time to time and that the tenant who built the superstructure on the land sold only the superstructure and did not purport to sell any interest in the land are inconsistent with the defendant's having acquired any right to permanent occupation.
Then it is said that the appellants are at least precluded from ejecting the respondent without paying compensation for the building because the building was erected with the knowledge of the appellants who must be taken to have granted permission therefor, and the subsequent transfer of the superstructure was made with the knowledge of the appellants who recognised the transferee as their tenant. With reference to this contention, the answer is best given in the words of the Lord Chanceller Cranworth that the tenant “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.” To my mind, the facts of the case do not necessarily show anything more than this, namely, that the defendant like other tenants in the Tinnevelly Settlement relied upon the landlord's honour not to eject him so long as he paid the rent which the landlord was likely to demand. The landlord's right to enhance the rent cannot be denied upon the facts proved in these cases. That makes it almost impossible to hold that the defendant has any indefeasible right such as that claimed by him. The fact that no tenants have been evicted hitherto from the Tinnevelly Settlement does not in my opinion go to prove that they were led by the appellants to expect that they would have a permanent interest in the land. It is not in the interest of the landlord to eject his tenants if they pay him such rent as he is likely to get for the land and they might reasonably have relied upon him to act in accordance with his interest. In Narasayya v. Raja of Venkatagiri, I expressed my opinion as a result of what was laid down in Ramsden v. Dyson and other cases that there may be cases in which though a landlord may not be estopped from recovering possession of the land, the Court of Equity will insist on his paying the value of the building erected by the tenant before he is allowed to do so; but then the circumstances must be such that a contract to that effect may be plainly inferred from them. On the other hand, it is not alleged in the written statement of the defendant nor in his evidence that the conduct of the respondent led him to believe that the landlord would pay compensation for the building if he were to eject him. The pleader for the respondent has relied on a ruling in Promada Nath Roy v. Srigobind Chowdhry(3) for another proposition advanced by him that whenever land is let for building purposes, the presumption is that the tenant is not liable to be ejected. But I do not think that the learned Judge meant to lay down that such a presumption arises apart from the nature of the building to be erected, the character of the locality, the fact whether the rent is a fixed rent or liable to enhancement and other circumstances of a like character. If they intended to hold otherwise, I am with great respect, unable to agree with them. I hold that the appellants are entitled to recover possession of the land from the defendant. There can be no doubt that the notice given by them was adequate.
In the other cases, the learned City Civil Court Judge dismissed the suits holding that the specific letting alleged by the plaintiffs had not been proved, and without recording any finding on the other issues. It is admitted however that the land belongs to the plaintiffs and the defendants have been holding it at a monthly rent. These facts in the light of the presumption arising under Sect. 106 of the Transfer of Property Act show that the defendants hold the land as tenants from month to month, such a tenancy being terminable by fifteen days' notice. It is further proved that the plaintiffs have on several occasions enhanced the rent and their right to enhance was not disputed hitherto. Although the superstructures have been transferred in some cases, the defendants have never purported to deal with any interest in the land itself. These facts are sufficient to establish the title of the plaintiffs to the land and to preclude any inference that the defendants have acquired a right of permanent occupation in the land by any contract. The mere fact that a particular agreement or lease set up by the plaintiff has not been proved, cannot disentitle him to relief. The circumstances in which equitable estoppel is alleged to have arisen in these cases are not substantially different from those in Appeal No. 22 in which I have already held, that no such estoppel arose. I would, therefore, modify the decrees passed by the City Civil Judge by giving decrees to the plaintiffs for possession in addition to the decree which they have obtained for arrears of rent. The respondents will be allowed to remove the superstructures and they will have sufficient time to do so. The Respondents should bear the costs of these appeals. But as my learned brother takes a different view, under Sect. 98, Civil Procedure Code, the appeals will be dismissed with costs.
Phillips, J.—The lands concerned in these appeals form part of what is called the Tinnevelly Settlement and are only useful as building sites. For at least sixty or seventy years these lands have been held on lease from plaintiffs or their predecessors in interest and buildings have been erected on them—at first thatched huts and sheds, etc.,—afterwards buildings of a substantial character. These buildings have repeatedly changed hands, having been sold apart from the land on which they stand, for which a fresh lease has been granted by the plaintiffs to the new owners of the buildings. In many cases the sale of the superstructure was made in the presence of the landlord and the lease of the site to the purchaser was only granted some time later —and it is not now seriously contended that any of the very numerous buildings has been erected except with the landlord's permission. At least one enhancement of rent is admitted and from the evidence it is clear that the rent has been enhanced two or three times in the last seventy years. The main question that has to be determined now is the nature of these leases. Do they confer a right of permanent occupancy? If not, can the tenants be ejected without being compensated for the value of the buildings on the land? I will deal first with C.C.C Appeal No. 22 of 1915 as this case governs the others also. On 27th April 1891 defendant purchased a superstructure on the land in the presence of 1st plaintiff, contractor under plaintiffs 2 and 3, and on 13th June 1891 he executed the lease-deed, Exhibit C. Under Sect. 106 of the Transfer of Property Act in the absence of a contract to the contrary a lease of immoveable property other than one for agricultural or manufacturing purposes shall be deemed to be a lease from month to month. Exhibit C provides for the monthly tent and appear on the face of it to be a lease from month to month. The prescribed notice to quit has been served on defendant and prima facie it would appear that plaintiffs have the right to eject him, unless it can be shown that on equitable grounds he has a right to permanent occupancy or to relief by way of compensation. In Ramsden v. Dyson the principle was laid down that when a tenant at will, being led to suppose that he had a right to claim a permanent lease, built on the land, and his landlord knowing of his belief, allowed him to so build, the tenant would in equity be entitled to enforce his supposed right to claim a permanent lease. Upon the facts of the case the majority of the Court held that no such equity arose. The dissenting Judge. Lord Kingsdown, relying on Gregory v. Mighell, lays down the principle as follows: “If a man under an expectation created and encouraged by his landlord that he shall have a certain interest takes possession of such land with the consent of the landlord and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation.” This is the same principle in mote general terms as the principle which the Lord Chancellor (Lord Cranworth) was prepared to accept had he found that the facts brought the case within the scope of the rule, and is the one that must be applied here. Did the plaintiffs in this case lead the defendant to believe that he had an interest in the land greater than that created by a monthly tenancy? I think this question must certainly be answered in the affirmative. The lands in the Tinnevelly Settlement have been used solely for building purposes for at least seventy years, and the superstructures have been passing freely from hand to hand with the consent of the landlord, and until now not a single tenant has been evicted against his will. The settlement has been drained and roads laid out and the Corporation of Madras has insisted on many of the original thatched structures being replaced by pukka buildings, the rent of the building sites has been enhanced in consequence of the construction of roads and drains. The terms of Exhibit A in Appeal 24 also show the landlord's consciousness that the buildings had been erected as of right for he purports to lease out the right to collect the rents of the houses, etc., and not of the sites alone. No doubt the rent has been enhanced more than once and this would be a strong argument against the plea that the tenant believed he was entitled to a permanent lease, for if the rent is liable to enhancement there is no means of determining what is the rate of rent payable in future, but it is not of so much importance in considering the tenant's claim to compensation if evicted. In this connection I think the provisions of Exhibit C are important. Reading Exhibit C as a lease from month to month the tenant is liable to eviction on fifteen days' notice, and when evicted would presumably have to demolish any superstructure upon the land, this being his right under Hindu and Muhammadan Law, which does not recognise the principle that Quicquid inaedificatur solo cedit. In Exhibit C, however, there is a proviso that the tenant is liable to ejectment and his house to demolition if he does certain specified acts, and this unnecessary provision in what is on the face of it a lease-deed from month to month implies that the parties realized that the tenant had a larger right than would naturally be imported by the terms of an ordinary tenancy from month to month, but what exactly was the extent of the right is not so clear. The learned City Civil Court Judge has held that the right was a right to a permanent lease, but there are two points, which to my mind negatived this supposition, (1) the enhancement of rent from time to time and (2) the fact that the tenure was never transferred with the superstructure, Had the parties understood that the tenure was permanent, one would have expected to find it also transferred in the sale-deed. I think, however, that the tenant has been led to believe that he would be allowed to enjoy the superstructure without molestation on certain terms, i.e, so long as he behaved himself, and the landlord had encouraged the belief, and allowed the tenant to spend money on the faith of such encouragement. In equity, therefore, the tenant is entitled to be compensated for what he has spent. A number of cases have been cited before us, which I do not propose to review at length, for the circumstances of each case differ and consequently a different result may be arrived at in each, although in principle they may agree. The oldest case Mahalatchmi Ammal v. Palani Chetti perhaps went further than any other in the tenant's favour, but its correctness has been doubted in Ismai Kani Rowthan v. Nazarali Sahib and Narasayya v. Raja of Venkatagiri. In Dattatraya Rayaji Pai v. Shridhar Narayan Pai(4) and Municipal Corporation of Bombay v. Secretary of Stated(5) the principle in Ramsden v. Dyson(6) was followed and in the former case compensation was awarded. The facts in Gungadhar Shikdur v. Ayimuddin Shah Biswas, Caspersz v. Kader Nath Sarbadhikari and Promada Nath Roy v. Srigobind Chowdhry, were held to be such as to warrant a presumption that the leases were for building purposes of a permanent nature. In Yeshwadabai and Gopikabai v. Ramchandra Tukaram when buildings had been erected and enjoyed for twenty-five years it was held that even if these facts did not justify a presumption of a permanent lease compensation at least should be awarded. This principle that a tenant may equitably be entitled to compensation in cases when, the lessor is not estopped from suing for possession was recognized by the learned Officiating Chief Justice but was doubted by the late Chief Justice (Sir Arnold White) in I.L.R, 37 Mad., 1, although the latter acknowledged that compensation had often been awarded by Courts in this country on general grounds and without considering whether the lessor would be estopped from suing for possession. If however we apply the principle of Ramsden v. Dyson, the particular form in which equitable relief should be granted must depend upon the expectations raised in the tenants mind by the landlord's conduct and there is nothing in that case which restricts the right of the tenant to equitable consideration to cases whera the landlord is estopped from suing for possession. In this case I would accordingly hold that the tenant cannot resist eviction altogether but is entitled on eviction to compensation for his improvements. Plaintiff has not in this case offered to pay any compensation, but bases his suit on his absolute right to evict. I think, therefore, that his suit, as framed, has been rightly dismissed.
In Appeals 21, 23 and 24 the leases sued on have not been proved but the plaintiffs' title as landlord had not been disputed. The presumption as to the nature of the tenancy raised by Sect. 106, Transfer of Property Act, is, 1 think, rebutted by the circumstances of the case for no tenant would knowingly execute a lease by the terms of which he could be deprived of a valuable building paid for by himself, at fifteen days' notice. I have held that the tenant is entitled to compensation, and therefore any notice to quit should be accompanied by a tender of the amount of compensation due. I would dismiss all the appeals with costs.
[The above Letters Patent Appeals against the judgment of his Lordship Phillips, J., came on for hearing on 23rd February 1917 before a Bench of three Judges, as constituted above.]
The Hon'ble The Advocate-General and Messrs. T. Ethiraja Mudaliar and M. Purushotham Naidu for the Appellants in all.
Messrs. M. A. Tirunarayanachariar and R. Satyamurti Aiyar for the Respondents in all.
JUDGMENTS
The Chief Justice and Oldfield, J.—In Letters Patent Appeal No. 197 of 1916. Exhibit I of 27th April 1891 is a sale-deed to the defendant of a paddy crushing house and superstructure which stood on the site of the house now in question. It is recited that it was made in the presence of the contractor who framed rents under the landlord and both in the heading and the body of the document it is mentioned that the sale was excluding the land. It was therefore clearly not contemplated to transfer any interest in the land to the purchaser by this document. Exhibit C of 13th June 1891 is the ground rent agreement executed by the defendant in favour of the aforesaid contractor in respect of the site of the house. It provides for a monthly rent of Re. 1-8-0 as from April 1891 and provides that the lessee should not rear sheep, etc., on the land and that in the event of his doing so the contractor should be entitled to recover double rent and to sue for summary ejectment and demolish the house. We think this was an agreement for a monthly tenancy terminable on 15 days' notice under Sect. 106 of the Transfer of Property Act, and did not create any permanent tenancy in favour of the lessee. In these circumstances, we think we are bound by the decision of the majority of the Full Bench in Angammal v. Aslami Sahib affirming Ismai Kani Rowthan v. Nazarali Sahib to hold that in order to entitle the defendant to compensation on determination of the tenancy by the landlord for the value of buildings of a permanent character erected on the site by the tenant it is necessary to show something more than that the landlord knew they were being erected and raised no objection or even than that he ever gave permission for their erection. In his written statement the defendant does not put the case higher than that the improvments were made with the knowledge and concurrence of the plaintiffs. The witnesses for the defence no doubt go further and state that the defendant had an interview with the 2nd plaintiff, the landlord who not only gave permission to build the house but promised that he should not be turned out. If this evidence could be believed that would be sufficient to entitle the defendant at any rate to compensation, but not only was this not pleaded in the written statement but it was not put to the 2nd plaintiff in cross-examination. In these circumstances we are unable to accept the defendant's evidence to this effect. In the result we agree with the order proposed by Abdur Rahim, J., and also direct the respondent to pay the costs of the plaintiffs throughout. As regards the other cases (Letters Patent Appeals Nos. 198 to 200 of 1916) we concur with the order proposed by Seshagiri Aiyar, J.—
Seshagiri Aiyar, J.—In Letters Patent Appeal No. 197 of 1916.
The facts of the case have already been stated in the judgment of the learned Chief Justice and Oldfield, J., and it is unnecessary for me to repeat them. I propose to say a few words on the arguments addressed to us by Mr. Thirunarayanachariar. The chain of authorities on the right of compensation to the lessee who has a fixed period of lease is well established in this Presidency. The legislature in Sect. 108, Cl. (h) of the Transfer of Property Act has laid down that the only right of the lessee is to remove the things attached to the earth during the continuance of his lease, Ismai Kani Rowthan v. Nazarali Sahib Narasayya v. Raja of Venkatagiri, Angammal v. Aslami Sahib and Muthu Reddi v. Muthu Venkafapathi Reddi have applied this principle to leases for particular periods. The learned counsel contended that the general propositions of law enunciated in these cases do not effect leases which are indefinite in term or where the tenant has been encouraged to construct permanent works upon the property leased.
As regards the first of these contentions, I am not able to see how the duration of the lease can affect the applicability of either the case law or of Sect. 108, Cl. (h). It was argued that if no period is fixed and if the lease is for building purposes there is a presumption that the lessor is not entitled to evict the tenant without paying compensation to the lessee. I can find no authority for this contention nor has any been cited before as. An alternative argument was, that the above considerations are sufficient to give the tenant a permanent right of occupancy. The question whether long and continuous occupation of building sites without variation of rent can give the tenant a permanent right in the soil has not been considered in this Presidency. Promada Nath Roy v. Srigobind Chowdhry, was relied upon in support of the proposition. That decision lays down that the Court may well presume in the case of building leases that it was intended to be a perpetual grant. This proposition has not found support even in Calcutta; for in Mohim Chandra Sarkar v. Anil Bandhu Adhikary and in Raimala v. Shiba Sundari, we find it stated that a tenancy for dwelling purposes is not to be presumed to be permanent, especially when the origin of it is known. In the present case the date of the tenancy is proved, and it is further proved that the rent was enhanced from time to time. Consequently applying the test adopted in Raimala v. Shiba Sundari, there is no warrant for the proposition that the defendant had acquired a permanent right in the land. It was said that the present tenant who has purchased the superstructure stepped into the shoes of the previous tenant and that the two together had been in occupation for over sixty years. There is no evidence to show that the right possessed by the previous tenant if any, was ever transferred to the present defendant. A new lease was taken as soon as he purchased the superstructure. The document, Exhibit C, although it only makes a provision for monthly payment of rent, must be regarded as having created only a monthly tenancy, for under Sect. 106 of the Transfer of Property Act, leases for other than agricultural purposes which do not fix any particular period shall be deemed to be from month to month; and there is nothing in the language of Exhibit C to take it away from that category. It may be, as pointed out by Mookerjee, J., in Sarat Chandra Datta v. Jadav Chandra Goswami that the fixing of periodical payments is not conclusive evidence of the nature of the tenancy. But we know the purpose of the tenancy in the case and we know that the usual tenure in such cases is a monthly one. I am therefore of opinion that the defendant did not acquire a right of permanent occupancy in the soil.
On the question of the right to compensation, the strongest authority in favour of the tenant is Datiatraya Rayaji Pai v. Shridhar Narayan Pai. That decision seems to subject a landlord who does not object to the erection of a building to liability to pay compensation. I am doubtful whether this view is supportable by either the English or the Indian decisions. In the well-known case of Ramsden v. Dyson it was distinctly laid down that mere standing by would not compel the landlord to pay compensation at the time of eviction. What is actually required is that there should be encouragement by the landlord to build and an implied promise that, in case the tenant was ejected, he would be compensated. Estoppel of this kind must be based upon something more substantial than failure to object. If, for example, the evidence given in this case by some of the witnesses to the effect that when the building operations commenced, the landlord was asked whether he would turn the tenants out after the expenditure of a large sum of money, and that he promised that they would not be disturbed, were believed, the landlord should not be allowed to eject the defendant without paying compensation. But neither the City Civil Judge who heard the witnesses, nor the two learned Judges who heard the appeal from him seem to have placed reliance upon evidence of this kind, and having regard to the fact that there is no specific issue relating to estoppel, I agree in holding that we would not be justified in finding for the first time that the conduct of the landlord was such as to require that he should pay compensation before evicting the tenant, For these reasons, I think the view taken by Mr. Justice Abdur Rahim was right and I would therefore allow the appeal with costs. The respondent will have” six months to remove the superstructure.
As regards the connected appeals (Letters Patent Appeals Nos. 198 to 200 of 1916) as the City Civil Judge has expressed no opinion upon the facts, it is desirable that he should be asked to give a specific finding on the question of equitable estoppel. The view taken by the learned City Civil Judge, that because the particular tenancy set up by the plaintiffs has not been proved, therefore the suits should be dismissed is open to serious objection. There can be no question that the defendants admitted in these cases that they were tenants. Their defence was that they were entitled to a permanent right of occupancy on the pleadings, therefore, the burden is on the tenants. The position stands thus. The plaintiffs sue the defendants as tenants; the defendants admit that they are tenants but say that they have a right to be on the soil permanently. The result is that if no further evidence were let in, by virtue of Sect. 10 of the Transfer of Property Act, the tenancy should be held to be a monthly one. Consequently although the plaintiffs might have failed to prove the particular tenancy set up by them, if sufficient notice as required by Sect. 108 had been given, they would be liable to be evicted. It is not disputed that such a notice was given in these cases. Therefore the right of eviction is established in favour of the landlords. The further question as to whether the tenants are entitled to compensation would depend upon the evidence adduced in the cases. As I have said before, there is evidence at any rate in some of the cases of a kind which, if believed, might lead to the conclusion that the landlord encouraged the tenant to erect a permanent building, That is a matter upon which the opinion of the City Civil Judge should be given. I am, therefore, of opinion that the cases should be sent back for a finding whether the landlords encouraged the defendants to build, and if so, what is the compensation to which the tenant in each of these cases is entitled. One month will be allowed for the return of the finding and seven days for objections.
In compliance with the order contained in the above judgment, the City Civil Judge, Madras, submitted the following
FINDING.
The issue on which I have to submit my finding in O.S Nos. 184, 135 and 137 of 1912 (C. C. C. Appeals Nos. 24, 23 and 21 of 1915, respectively) runs as follows:—
“Whether the landlords encouraged the defendants to build and if so, what is the compensation to which the tenant in each of these cases is entitled?
… … … … …
In O. S. No. 134 of 1912:—……… The evidence as regards the alleged agreement by which the landlord expressly promised not to turn out the tenant, if the latter put up a superstructure on the land, is entirely oral.
. . . . . . . . . . . . . . .
4. If the defendant is entitled to compensation, I would find the value of the superstructure to be Rs. 2,000.
In O. S. No. 135 of 1912:—…… Upon the evidence in this case, I would find on the issue remitted to me in the affirmative.
11. As regards the question of compensation to be awarded for the defendant, I would fix it at Rs. 1,500, on the evidence adduced for the defendant which stands uncontradicted.
In O. S. No. 137 of 1912……… I find that the express promise on the part of the plaintiffs pleaded by the defendant has not been satisfactorily proved in this case.
15. As regards the amount of compensation, I would fix it at Rs. 500, as even the 1st witness for plaintiffs admits in one place in his evidence that it was worth Rs. 400 or Rs. 450.
[The above Letters Patent Appeals came on for final disposal after the return of the finding of the Lower Court, on 2nd October 1917.]
JUDGMENT
In two of the three cases covered by this finding, the learned City Civil Court Judge has found that it is not proved that there was any express agreement or encouragement given by the plaintiffs to the defendants in question to erect tiled houses, and we see absolutely no reason to differ from this conclusion. In these circumstances we think that our former judgment concludes the case and therefore these appeals must be allowed. We reverse the decrees and give judgment for the plaintiffs is prayed for, with costs throughout.
As regards the third case, the City Civil Court Judge has found that there was such an agreement or encouragement. We feel reluctant in the circumstances of the present case to differ from that finding. But we do not think that the evidence upon which the learned Judge has acted is such as can safely be relied upon. It consists of the evidence of the defendant and her husband who are interested, and they are also supported by two witnesses who are apparently in the same position as the defendant, as they also own tiled houses on the sites belonging to the plaintiffs. They are therefore distinctly interested.
Then there are certain discrepancies to which the learned Advocate-General has called our attention. It is alleged in the particulars put in on behalf of the defendant that the agreement was entered into in 1903 when the house was built. But the evidence of two witnesses goes to show that this agreement took place two or three years later, whereas one of the witnesses puts it even earlier than 1903. Then there is the fact that in the particulars which were given in connection with this case, the alleged agreement is said to have been made by the 2nd and 3rd plaintiffs in the presence of the 1st plaintiff. The evidence now is that it was made by the 2nd plaintiff in the presence of the 1st plaintiff and that the 3rd plaintiff was not there at ail. It is obvious that oral evidence of this kind is exceedingly easy to procure, and on the other hand it is impossible to rebut it effectively, All that the plaintiffs can do is to deny the evidence on the other side. In the circumstances of the case we reluctantly come to the conclusion that this evidence cannot safely be acted upon.
We are unable, therefore, to accept the finding of the City Civil Court Judge, and in the result we must give the same decree in this as in the other suits. Six months' time will be allowed for removal of the superstructure in all cases.
K. V. S.Appeals allowed.