Wilson, J.:— This is a suit by an ejected tenant of land in Calcutta against his landlord, in which he claims to be entitled to remove buildings alleged to have been erected on the premises in question by him or his predecessors, or to be paid compensation in respect of them.
The case came on for settlement of issues on the 8th instant, and the issues were settled accordingly. The first issue is “by what law are the rights of the parties governed,” i.e, by Hindu law or English?
If the case is governed by English law, then it was admitted that the plaintiff's claim fails; if by Hindu law, then there remain other issues to be tried. This question was argued by Mr. Bonnerjee for the plaintiff and Mr. Mitter for the defendant, and I took time to consider my judgment.
It appears from the pleadings on both sides that the land in question is in Calcutta, and that the tenancy was one created by express contract. The parties concerned are, and throughout have been, Hindus. By what law are the incidents of such a tenancy governed?
The law generally to be applied by this Court within Calcutta is the common law of England, subject to exceptions, qualifications, and additions which it is unnecessary at present to notice. But by section 17 of 21 Geo. III, c. 70, it is provided that “inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of Mahomedans, and in the case of Gentus by the laws and usages of Gentus.”
If this proviso applies to the case, then, subject to the other issues remaining to be tried, the plaintiff is primâ facie entitled to remove the buildings erected upon the land or to receive compensation—re Thakoor Chunder Paramanick, B.L.R (F.B.R), 595.
The decided cases bearing upon the matter are not numerous. In Doyal Chand Laha v. Bhoyrub Nath Khettry, Coryton, 117, Phear, J., granted an injunction restraining the defendant, who had been in occupation of premises in Calcutta, from removing the materials of additional buildings which he said he had built; reserving leave to the defendant to bring a suit within two months to establish a special custom alleged by him which would authorise his act. In that case, however, the report does not show under what circumstances the defendant had been in occupation, whether as tenant, or if so to whom, or under some independent title. Unless he were tenant and tenant to the plaintiff or of someone to whose right the plaintiff succeeded, the decision in that case does not bear upon the present. Nor does the report show whether the learned Judge dealt with the case as one governed by English law, or by Hindu law. If by the latter, then the decision seems to be overruled by the later Full Bench case of re Thakoor Chunder Paramanick, B.L.R (F.B.R), 595.
The last mentioned case decided that according to Hindu law buildings do not become the property of the owner of the soil on which they are erected merely because they are so erected, but that anyone who has built on land which he occupies under any bona fide claim of title is entitled to remove the materials or be paid for them.
In Parbutty Bewah v. Woomatara Dabee., 14 B.L.R, 201, the question was, whether the tenant of land in Calcutta on which he had erected tiled huts was entitled to remove them. A custom to remove such erections was proved, and Macpherson, J., upheld the tenant's right to remove. But in that case it was not necessary to decide, nor does it decide, anything as to what the right of a tenant is apart from evidence of custom.
These are the only cases with which I am acquainted bearing at all directly upon the question now raised for decision, and none of them appear to me to decide the question.
In the absence of express authority, I am of opinion that a tenancy created by contract is within the words “matters of contract and dealing between party and party” in the proviso of section 17 of 21 Geo. III., c. 70.
The law, as laid down in the Full Bench case referred to, when applied to a contract of tenancy, is not inconsistent with anything in the Contract Act (IX of 1872), and therefore is unaffected by it: see section 1 of that Act.
Upon the first issue, therefore, I find that the rights of the parties are governed by the Hindu law, as laid down in the case just mentioned. The remaining issues will have to be tried.