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TMI Blog1953 (1) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... urt but the High Court dismissed that appeal holding, amongst other things, that the finding of the trial Court as to the nature of the tenancy was correct. The plaintiff has now come up on appeal before us after getting a certificate from the High Court that it is a fit case for appeal to this Court. Relying on the decision of the Privy Council in Dhanna Mal v. Moti Sagar(1) Shri N. C. Chatterjee appearing on behalf of the plaintiff-appellant contends that the present appeal is not concluded by the concurrent finding of the Courts below that the tenancy was permanent because that question was one of the proper inference in law to be deduced from the facts as found by the Courts below. The learned counsel has, therefore, taken us through. the evidence mostly documentary, as to the nature of the tenancy. The earliest document referred to is Exhibit P/11, being a conveyance executed in 1226 B.S.1819-1820 by Sheikh Manik and another in favour of Mrs. Cynthia Mills Junior. How the vendors had acquired their title is not known. By that deed of sale the vendors, for a money consideration,, conveyed their interest in the lands described as Jamai lands to the purchaser who, on payment of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recorded therein, you do go on enjoying and possessing the same with great felicity down to your sons, grandsons etc., in succession . On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859, a notice under sections 9 and 10 of Regulation V of 1812 was issued by the then Zemindars Rani Lalanmoni and Raja Purna Chandra Roy. It was ,addressed to Mrs. Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of Salkhia. It rail as follows: - This is to inform you that you are in. possession of I Bigha 19 Cottas of lands of different kinds as per the boundaries given below as recorded in the Mal Department in the said village for which according to your own statement you are paying a yearly rental of ₹ 4126. But you have taken no settlement in respect thereof from our estate (sarkar). Now on fixing the annual Jama of the said lands according to the prevailing rate as per Jamabandi at ₹ 137-8-0 a year, fifteen days' notice is given to you under the provisions of sections 9 and 10 of Regulation V of 1812 and you are hereby informed that within the said period you should appear before, our Zamindary Cutchery and accept a Pottah after submitting a Kabuliyat according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant (Exhibit D series). There was, however, no column. in the rent receipts to indicate the status of the tenant. It appears that on the death of George Jones the estate came into the hands of the Administrator-General of Bengal representing the estate of George Jones. In the rent receipts of Dighapatia Raj the rent is said to be received from Jones--Administrator-General of Bengal. In May, 1931, the plaintiff and the Administrator-General of Bengal entered into an agreement for sale of premises No. 2, Watkin's Lane, being a portion of the premises in question, for a sum of ₹ 10,001 and ₹ 1,001 was paid by the plaintiff as and by way of earnest money. The landlords having declined to subdivide the ground rent between the two portions of the premises, namely, Nos. 2 and 3, Watkin's Lane, and a portion of the Premises No. 2, Watkin's Lane, having fallen down the agreement for sale appears to have fallen through. On the 4th June, 1932, the plaintiff suggested that a lease for 20 years should be granted which was refused by the Administrator-General, Bengal. Then there was some negotiation between the plaintiff and the Administrator- General of Bengal for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor raised in the trial Court but was put forward for the first time before the High Court. The pleadings of the 1859 suit are not on the record but the substance of' the written statement appears from the judgment Exhibit 24 passed in that case. The issues framed in that case have already been set out. There was no issue regarding the character of the tenancy, namely, whether it was permanent and heritable or otherwise. The only question there was whether rent could be assessed tinder the Regulation. There is nothing in that Regulation suggesting that rent could be assessed only if the tenancy was a ticca tenancy or that rent could not be assessed if the tenancy was a permanent one. The question of permanency of the tenancy was not, therefore, directly or substantially in issue. We find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation. The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration but it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an agricultural tenancy in Shanka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, No. 3, Watkin's Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent' from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindar's Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Jones's name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one. The decision of Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das (supra) is definitely in point. In this view of the matter we hold that the Courts below were right in dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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