Parbutty Bewah v. Woomatara Dabee.

Macpherson, J.:— I think that the question which is left for the decision of the Court must be answered in the affirmative.

The case states (para, 4) that it has been the practice in Calcutta for tenants to remove such tiled huts as those of the plaintiff, erected upon the land let to such tenants, and such huts were, by such practice, treated as the property of the tenants, who by such practice were in the habit of disposing of them without the consent of their landlords. And it further (para. 6) states that before the plaintiff removed from the said piece of land, she endeavoured to pull down and remove the said tiled huts; but was prevented from so doing by the defendant, who claimed the said huts as her property, considering that this Court had decided in the suit of Kallypersaud Sing v. Hoolas Chund. that tenants had no right to remove the tiled huts.

It thus appears that this litigation has arisen solely in consequence of the decision in Kallypersaud Singh's case. But the defendant has wholly misunderstood that decision and its effect. The only point decided there was that tiled huts are not goods and chatties within the meaning of s. 58 of the Calcutta Small Cause Court Act (IX of 1850). The Court decided that tiled huts are not moveables, but it did not decide, nor did it approach the question, whether they are removeable. In the case of Raj Chunder Bose, Sir Barnes. Peacock held that tiled huts in the mofussil are not moveable property within the meaning of s. 19 of the Small Cause Court Act (XI of 1865), but he expressly called attention to the fact that, although not moveable property within the meaning of that Acts a hut may possibly be removeable. He says the word moveable in that section (19) is used in contradistinction to the word immoveable in s. 20.

The word used is moveable, not removeable, and that word does not, in our opinion, comprehend everything which the judgment-debtor has a right to remove. It means property which is capable of being moved in its existing state.” And in the judgment of Chief Justice Sir Richard Couch in the case of Nattu Miah v. Nand Rani, the distinction between moveable and removeable is recognized in the same manner.

None of the decided cases in fact affect the question, and the practice being such as is described in the case, the tenant clearly has a right to remove the huts. The origin of the practice or custom is doubtless to be found in the Hindu and Mahomedan laws, under both of which such huts would certainly have been removeable; see the judgment of Peacock, C.J, In re Thakoor Chunder Paramanick. It was argued for the defendant that there is no evidence or admission by the defendant of any custom such as the plaintiff relies upon. But the whole object of the parties in stating this case was to avoid going to further expense in taking evidence, and the like; and among the facts stated, there is no indication of any time at which the practice admitted did not exist. Besides this, it seems to me that there is an admission of a custom quite sufficient to support the plaintiff's claim, especially as the practice admitted, and as to the existence of which there can be really no doubt, arises merely from the leaving undisturbed what may be called the old native law on the subject.

The case of Doyalchund Laha, to which Mr. Collis referred, is not in point; for the erections in question there are not said to have been of the class known as tiled huts.

The facts stated, moreover, are such as, I think, would entitle the plaintiff to remove these huts even if no such general right as is claimed for tenants existed. At the time she became tenant, the plaintiff, with the knowledge of the defendant, bought the huts on the land from the out-going tenant, and the instrument of sale which was then executed forms part of the case. That document shows on the face of it, that the out-going tenant treated the huts as his own property, and the defendant's rights as landlord as being limited to the land only. The plaintiff having so purchased the huts with the defendant's knowledge, relying upon the practice, &c., and with the knowledge of the defendant, partially palled down and rebuilt the said huts, &c. (see para. 3), it seems to me that, apart from the question of there being a valid custom by which tenants are entitled to remove tiled huts, the plaintiff had a right to remove these particular huts as against the defendant, when the defendant, being aware of the circumstance under which the plaintiff purchased originally from the out-going tenant, and knowing also that the plaintiff relied on the existence of the alleged practice, stood by and allowed her to erect the new huts which are the subject of the present discussion.

The question stated is decided in the affirmative and I declare that the plaintiff is entitled to remove the huts, or to be paid Rs. 475 by the defendant, and that she is also entitled to be paid the costs of this suit on scale No. 2. As it is not desired that the huts should be actually removed now, the decree will be for Rs. 475, in lieu of removal.

Judgment for plaintiff.

Attorney for the plaintiff: Mr. Hart.

Attorney for the defendant: Mr. Carruthers.