The pleas urged before us in appeal on behalf of the Defendants are (1) that the notice to quit addressed to Kali Krishna Mondol was not really served on him; (2) that the notices were invalid; and (3) that the rights of the Defendants in the holding are of a permanent nature, and that they were not merely, as found by the Subordinate Judge, treated as such.
The first of these pleas may be dealt with very shortly.
We are conviuced that the notice to quit was served on the Defendant Kali Krishna Mondol. There was a double service. There was service by registered letter, which he refused, and of the contents of which he consequently cannot now plead ignorance [Jogendra Chundra Ghose v. Dwarka Nath Karmakar]
Secondly, there was a personal delivery of the notice to him by the witness Bhuth Nath Mukherji, every word of whose evidence appears to us to be worthy of credence.
Then the notices seem to us to be perfectly valid. The Plaintiff is in no way bound by the partition decree between the descendants of Udoy Narain Mondol or their representatives. He was no party to this decree. He has, however, recognized the division of the holding No. 14 into 3 shares, of which the Defendants are in separate and exclusive possession, and has deal; with the Defendants Apurba Kumari and Kali Krishna as the tenants of a 4 annas and an 8 annas share respectively. Certain rent receipts granted by a former ijardar of the property have been produced, in one of which A16 the name of Upendra Mondol appears and in others of which the expression “and others” follows the name of Kali Krishna Mondol. But in these respects Upendra Krishna and the others were not recognized as tenants. The tenant's name is entered in these receipts as Udoy Narain Mondol. Upendra Krishna and “the others” are treated only as marfatdars, i.e, persons from whom the rent is received on behalf of the tenant. Farther, these receipts relate to past years. They do not represent the present state of affairs. The Plaintiff has consistently granted receipts for the rent of the 8 annas share of the holding in the name of Kali Krishna Mondol alone, which have been accepted by Kali Krishna Mondol. In a road-cess return dated 1897, submitted by the Plaintiff to the Collector and produced by the Defendants, the name of the raiyat is entered as Udoy Narain Mondal, and the rent is said to be paid by Kali Krishna, Apurba Kumari and Nobin Chandra Addy. There is no mention of Kali Krishna Mondol's nephews in this return. Seeing that the holdings No. 14 is admittedly divided into 3 shares of Saunas, 4 annas and 4 annas, that the lands of these shares have been divided between the Defendants by metes ami bounds, that the notices to quit mention the boundaries of the land of which the Defendants have been found to be in possession and that Kali Krishna and Apurba Kumari have hitherto been paying the rent of the shares of the holding of which they are described in the notices as the tenants, it would teem to us that the notices to quit addressed to them are perfectly good notices. These cases as regards notices would seem to be on all fours with the case of Ismail Khan v. Digamher Muhherji(2), in which the lower Court held that similar notices, issued by the same person as is the Plaintiff in this case, were good notices and in which its decision was affirmed on the ground, that, as a matter of fact, on evidence similar to that adduced in this case, the original holding had been divided. There can be no doubt that the objection taken to the validity of the notices is of a very technical and disingenuous character and that if the Plaintiff had given the Defendants a joint notice to quit the whole holding, lie would have been met with the plea, which would on the evidence have prevailed, that the original holding had been subdivided to which by his conduct and the rent receipts he had signified his assent.
We now turn to the main question in the case which is, what is the nature of the Defendants' interest in the land held by them. The Plaintiff asserts it is a temporary interest the Defendants maintain it is a permanent interest. The Subordinate Judge says it has been treated as a permanent interest and yet bolds the Plaintiff entitled to evict the Defendants. We are unable to agree with the conclusion of the Subordinate Judge. There is nothing to show that it was ever treated as a permanent interest either by the Plain if or his lessor, and they are not bound by the acts of the Defendants or their vendors.
The holding seems to have been created by the kabuliyat Ex. 11, dated 18th February, 1830. This certainly does not create a permanent holding in the land. There are no words in it implying that the holding is hereditary or the rent fixed in perpetuity. The kabuliyat addressed to the mutwalli of the Hooghly Imambara who had only a limited interest as manager in the property, who could not grant and whom the tenant Udoy Narain Mondol must have known could not give him a permanent lease even though the property is not ??? There is mention in this kabnliyat of a deed of sale executed by ??? Bewa and Ram Kauai Shaba on the same dare, which deed of sale has been produced and is Ex. F. But in the ??? this deed of sale is referred to as a deed of sale only of the “fixtures and structures” (amla aulad) on the land and not of the land itself. There are other deeds produced by the Defendants which according to them prove the existence of the holding before the date of the kabuliyat and which, therefore, it is said, support their contention that the ??? of 1830 was not a lease creating a holding; but one confirming a holding already in existence. These are Ex. G2, a deed of sale of the land, dated 3rd November, 1826, executed by Raj Chandra Ghose to D.N Tagore; G1, a deed of sale, dated 11th November, 1826, executed by D.N Tagore, in favour of Jago Mohan Shaha, apparently the predecessor of Rambha Bewa and Ram Kanai. There is also Ex. G, an istafa, dated 18th March, 1852, which has nothing to do with the land in dispute but which is put in, it is said, to show that there was a practice of surrendering a holding in the case of a transfer of it, and Ex. 11, a deed of sale, dated 14th September, 1888, relating to the share of Nil Gopal Mondol in the holding. There are also certain old chittas, dated 1783, which, however, do not appear to relate to the land now in dispute. The holding, if it existed before 1830, is not carried back by these deeds more than 4 years, and if there was, as alleged by the Defendants, a practice of surrendering ??? on mutation, as proved by Ex. G, then this is an additional reason for concluding that the kabuliyat Ex. 11 did not confirm an old holding but mealed a new one. The learned pleader for the Defendants, however, relies on the ??? of the ??? by the original ten intend his family ever since 1830 or 1826, and on the fact that the rent has never been altered during this period. He cites the case of Dhunput Singh v. Guman Singh(3) as an authority for this argument. It is sufficient for us to say that case relates to land situated in the interior of the province where the provisions of Act X of 1859 were in force. It relates to agricultural land with regard to which the Legislature has thought it right to make special provisions for the protection and encouragement of cultivators by granting them fixity of tenure. The land in dispute in this case is homestead land situated in the suburbs of Calcutta, and within Municipal limits, occupied by temporary tenants and the only pucca house on which was formerly the residence of a prostitute and is now the place of business of a seller of liquor. The Legislature has never thought fit to introduce any measures for the protection or encouragement of such classes of persons. In regard to homestead and building land, there has always been, and is perfect freedom of contract and a lessee of such land, if he wishes for a permanent interest in it, must be careful to stipulate for such an interest. Further, it cannot be said that in this case the land may have originally been of an agricultural character for from the boundaries of the land mentioned in the deeds produced by the Defendants it is apparent that the land from the first was covered with houses. Finally, this appears to us to be a case in which the origin of tenancy is known and in which therefore there is no necessity or room for presumptions in favour of the occupant. In these circumstances we think the Subordinate Judge was right in holding that the Plaintiff is entitled to evict the Defendant.
There has been no standing by on the part of the mutwalli or ijardars, while the Defendants erected permanent structures on the land. There are as a fact no permanent structures on the land, except the one-storied building now used as a shop, already referred to, which stands on Kali Krishna Mondol's land. He has repaired and improved this shop. But the Plaintiff and his lessor never induced him to do so and accordingly there has been 110 acquiescence on their part so as to bring the case within the rule laid down by the Privy Council in Lala Beni Ram v. Kundan Lal, and to estop the Plaintiff from ejecting the Defendant.
The mutwalli of the Hooghly Imambara, the Plaintiff's lessor, lives at a distance of 30 miles from, and on the other side of the river, to the disputed land, and he has leased the land, though not continuously to ijardars, which is also a circumstance making against there being any estoppel in this case, Krishna Kishore Keogi v. Mir Mahomed Ali.
We would, therefore, dismiss the Defendants' appeals Nos. 127 and 128 with costs. The Defendants will, however, be at liberty to remove from the land all structures of which they may have been in possession, provided they are removed before execution of the decree is taken out.
Turning now to the. Plaintiff's appeals Nos. 100 and 101, it is sufficient for us to say that we think there are no grounds on which the Plaintiff should be made to pay compensation to the Defendants before ejecting them. The Subordinate Judge has not been able to mention any conduct of the Plaintiff or of his lessor or of previous ijardars which has led the Defendants to believe themselves to have a permanent interest in the land, and to lay out money on it. On the rule laid down in the case of Shaikh Hosein v. Goverdhan Das Parmandas and Jugmohandas v. Pallonjee, the Defendant would not seem to be entitled to any compensation from the Plaintiff.
We therefore decree appeals Nos. 100 and 101 with costs in both Courts. We fix the costs in this Court at Rs. 80 in No. 100 and Rs. 150 in No. 101.
C.C.G
Appeals by Plaintiff allowed;
and by Defendants dismissed.