Chhedi Manjhi & Others v. Mahipal Bahadur Singh & Others

Narayan, J.:— This appeal arises out of a suit in ejectment. The property in suit is 2 Kathas of bitori land situate in bitori Alamganj, tauzi No. 8.R of the Purnea Collectorate, & the pltf's case was that the defts. 1 & 2 who are the legal heirs of the original bitori tenant Dhannulal had the right to use the land for residential purposes, but that they could erect only thatched houses thereon & could not erect any pucca or permanent structure. The defts. 4 to 9 were impleaded because they claimed to be the purchasers of a portion of the bitori holding, & the allegation was that they had recently started constructing a pucca brick structure on the land & that the construction had been raised up to a height of 2 to 3 feet by the time the suit was instituted. The prayer was that the defts. be ejected from the land & that they be directed to remove the pucca structures raised by them within a period fixed by the Ct.

2. The defts. 4 to 9 contested the suit, & the principal defences raised by them were, (1) that the land in question was part of their ancestral holding, (2) that they had acquired a customary right to erect pucca buildings & structures on such holding, & (3) that they had acquired permanent right in the land & their title had become perfect by their open & adverse possession for a period of more than twelve years.

3. The Ct. of first instance rejected the claim for ejectment, but held that the defts. had no right to raise pucca structures on the land & direated that the materials be remove by the delta, within a month from the date of the decree. That Ct. also directed that a permanent injunction be issued on the defts. preventing them from raising any pucoa structure on the land in future. This decision was affd. on appeal by the Dist. J. of Parnea. Both Cts. repelled the contention of the defts. that they had acquired any permanent right in the land & that there was a custom by which they could acquire such a right. The defts. have, therefore, come up in second appeal, & on 28-11-1949 a Bench of this Ct. passed an order of remand calling upon the lower appellate Ct. to submit its findings on the following points:

“1. When the structures complained of were made?

2. What was the progress in the structures made before the landlord questioned the right of the defts. to make them?

3. Did the landlord stand by so as to create an equitable right in favour of the tenant-defts to resist the landlord's claim for the demolition of the structures?

4. In view of the fact that the landlord's claim for ejectment has been dismissed, would it be just & equitable to call upon the defts. to remove the structures complained of?”

4. The findings having been submitted, the appeal has now been heard finally. Mr. Harinandan Singh, the learned counsel for the defts. appellants did not challenge the findings of the Cts. below that the defts. had acquired no permanent right or right by custom, but he strenuously urged that the landlords had waived their rights to eject these defts. as they had stood by & allowed the construction to be raised. The learned Counsel has thus invoked in this case the suitable doctrine of estoppel by acquiescence. The learned Addl. Dist. J. has, however, submitted a clear finding to the effect that there is no material “on the record to show that the landlord had knowledge, direct or indirect, about the raising of the structures by the tenant-defts.”, & he has come to the conclusion that the landlord did not “stand by so as to create an equitable right in favour of the tenant-deft, to resist the landlord's claim for the demolition of the structures.” The learned Addl. Dist. J. has also refd. to Section 108(p) of the Transfer of Property Act, which lays down that, the lessee must not, without the lessor's consent, erect on the property any permanent structure except for agricultural purposes. In my opinion, the finding of the learned Addl. Dist. J. that the doctrine of estoppel by acquiescence cannot be invoked in this case is quite correct & cannot be questioned before us. The distinct case which the pltf. had made out was that before 10-11-1942 he had no information or knowledge about the wrongful constructions of the pucca building by the defts. This suit was instituted on 9-12-1942, & if the pltf. had no information about the constructions before 10-11-1942, then certainly there is no merit in the contention that the pltf. stood by & allowed the pucca constructions to be made. It is true that the learned. Addl. Dist. J. has found that the constructions complained of were made in 1939, & we have therefore to assume that the present suit was instituted about three years after the constructions had been made. But still the question does arise as to when the pltf. came to know of the constructions, & the further question arises as to whether the facts & circumstances can lead to an inference of equitable estoppel against the pltf. It appears that the pltf.'s estate had been seized by the Coir, of Purnea u/s. 99 of the Cess Act, & the pltf. asserts that, consequently, he had no collecting agent for this village, with the result that the deft, took advantage of the situation & clandestinely raised the constructions complained of. As was observed by the Judicial Committee in Beni Ram v. Kundan Lal, 21 ALL. 496, when a tenant raises the plea of equitable estoppel, it is

“incumbent upon him 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 he had, by plain implication, 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.”

5. During the course of his argument, Mr. Singh has even submitted that the structures which the defts. had raised cannot strictly be regarded as permanent structures.

6. This contention cannot be entertained by us, because in the Cts. below it was assumed & taken as a common ground that the buildings which had been raised were of a pucca & a permanent character. But, if the defts. could be in doubt as to the permanent or the impermanent character of the structures, then certainly the lessor or the owner of the property must have some time to ascertain whether the structures are of a permanent nature or not. Moreover, if the estate was in the hands of the Coir., then certainly it was difficult for the pltf. to take prompt action against the defts. & to demand promptly that the materials & the structures be removed. The lessor could object only after he had made sure that the structures were out of proportion to his & his lessee's intention & for this he must have some time, & as pointed out by the Judicial Committee in Beni Ram's case, 21 ALL. 496, in circumstances similar to those of the present case, the mere erection by the tenant of permanent structures upon the land let to him in the knowledge of & without interference by the lessor will not suffice to raise the equitable right against the latter. Their Lordships say that the rule established in India is that of Section 108 of the Transfer of Property Act, which provides that

“the lessee may remove at any time during the continuance of the lease all things which he has attached to the earth; provided he leaves the property in the state in which he received it.”

I would also quote the following passage from the judgment of Nasim Ali, J. in Chandi Charan v. Ashutosh Lahiri, 40 C.W.N 52:

“The equitable doctrine of estoppel by acquiescence also cannot be invoked by the defts. in the present case. The lessee made no mistake about his rights. He knew full well that the lease was not a lease in perpetuity. He did not raise the structures on the faith of any mistaken belief. Prom the act & conduct of the lessee, the lessor could not & did not know that the lessee had made any mistake as to the nature of his right & that he was raising the structures under a mistaken belief that the demise was permanent… The question of the lessor encouraging the lessee to spend money by raising costly structures, either directly or by abstaining from asserting bier right, cannot possibly arise in view of the facts & circumatances of the present case.”

7. It is no more the contention of the defts. that they had acquired any permanent right in the land &, as such, they could not construct any permanent structure on the land. Cl. (p), Section 108 of the Transfer of Property Act, lays down that the lessee cannot without the lessor's consent erect on the property any permanent structure except for agricultural purposes, & cl. (h), S. 108, after amendment is in the following terms:

“the lessee may, even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth: provided he leaves the property in the state in which he received it”:

As was pointed out by the Madras H.C in Ismai Kani Rowthan v. Nazarali Sahib, 27 Mad. 211 the rules laid down by the Transfer of Property Act substantially reproduce the law as it stood before, & the lessor has an option either to take the building or to pay compensation for it, or if he is unwilling to pay the compensation to allow the tenant to remove the building. And there is no reason why, during the continuance of the lease, if the landlord objects to the erection of permanent structures, those permanent structures should not be removed. If there is no waiver or acquiescence & if the equitable doctrine of estoppel by acquiescence cannot be invoked, then cl. (p) of S. 108 must operate & the lessee cannot be allowed to construct permanent structures except for agricultural purposes. The prohibition in this clause may not apply when, according to the contract of the parties the land is let for the erection of a dwelling house or shop thereon, but that is not the case here. The defts. now resist the pltf.'s claim only by asserting that the pltf. has stood by & allowed the constructions to go on. This plea on the findings & in the circumstances of the case cannot succeed.

8. The learned counsel for the applts. reld. on a decision of the Allahabad H.C reported in Ahmad Nazar Beg v. Brij Nandan, A.I.R (22) 1935 ALL. 1040, & particularly on the following observation made by their Lordships:

“We do not agree that this section would apply because this section applies to lessees in general, & if the plot has become a tenancy for building purposes the section in question will not apply to it. We note that the definition of land in Act 3 of 1926, S. 8(2) states that: Land does not include land for the time being occupied by dwelling houses or manufactories appurtenant thereto.”

The full facts of this case do not appear from the report, but it does appear that in that case there was a finding that plot No. 5 which was the subject-matter of the suit was appurtenant to the dwelling house which stood on it & that this plot, although originally agricultural, had become a plot which was held for building purposes. There are, therefore, obviously some important distinguishing factors, & the clear provisions of law as contained in cls. (h) & (p) of S. 108 seem to conclude the question raised in this present litigation. If there is no waiver or acquiescence, the defts. cannot be permitted to keep the permanent structures on the land.

9. I am, therefore, of the opinion that the appeal is without any merit, & I would dismiss it with costs.

10. Reuben, J.:— I agree.

V.B.B

11. Appeal dismissed.