Budhan Teli and Others vs Madan Mohan Lal

Dawson Miller, C.J.—The appellants in these cases are two of eight tenants of the respondent who sued to eject them and recover possession of the properly. The case for the landlord was that the holdings of the defendants were yearly holdings or that they were merely tenants at will and liable to ejectment. There were eight cases altogether and the Munsif found that the character of the tenancy in there cases could not be determined, they were apparently of some age, that no fixed rent could be established on the evidence, that there was no custom of transferability, and eventually decreed the plaintiff''s suit.

The defendants appealed to the District Judge and the District Judge held that the tenants had lean in possession for a long period and that, from the facts, he was entitled to draw an inference that the tenancies were permanent. He also found in favour of the custom of transferability and, further, upon the question of estoppel, he found that the landlord was estopped from derying the permanency of the defendants'' interest.

From this decision a second appeal was brought and beard before Mr. Justice Adami in this Court. The learned Judge of this Court agreed with the decision of the District Judge in six of the cases and as to those there is no appeal. In the other two cases it had been found as a fact by the Munsif and was not in dispute in the First Appellate Court that the defendants settlement appear or bano obost papers showing their title were in their possession and not produced. He, therefore, came to the conclusion that in such circumstances it was not competent for there defendants to give any evidence as to the nature of the terms contained in their defendants to give any evidence as to the nature of the terms contained in their documents of title. Therefore, he allowed the appeal in so far as these two tenants were concerned finding that they had in the circumstances failed to make out that they had anything more than a yearly interest in the land.

From that decision the two defendants in question have appealed, and it is argued before us to-day that it was not competent to the learned Judge of this Court to over-rule the findings of fact of the learned District Judge. The question, however, raises a point of law arising under the Evidence Act. It is quite clear by the terms of Section 91 of tie Evidence Act that where a contract or a grant or any other disposition of property has been reduced to writing no evidence shall be given in proof of its terms except the document itself or except secondary evidence in certain cases. It was admitted here that the documents of title were in existence, that the defendants, upon whom the onus lay, had them in their possession and they failed to produce them. The oases in which secondary evidence of a document may be given do not include cases such as the present. It was, therefore, no longer open, to my mind, to the defendants, the present appellants, to give any evidence at all as to what were the terns of the settlement of the land with them, they having failed to produce what after all was not only the best but was conclusive evidence as to those terms. The findings of the learned District Judge, therefore, which were arrived at by drawing inference from each facts as long possession and the acts of the parties and so on can have no application to a case such as this, and the learned District Judge was, in my opinion, not entitled to draw these inferences, which, after all, were merely inferences drawn from evidence which was given to prove what were the terms of a written grant or contract, and to this extent it seems to me that the learned Judge of this Court was perfectly right.

A further point was taken that the evidence showed to the satisfaction of the District Judge that the landlord was estopped from denying the permanency of the defendants'' holding. The findings of the learned District Judge upon the point were stated thus:

I find that the sites of the houses were settled with the defendants for the purpose of providing them with a home; and in accordance with that settlement they built brick foundations in the sub-soil, and for generation maintained superstructures of a quality which, in the circumstances of an Indian village, both they and the landlords must have recognised as appropriate to the making of permanent family abodes. In one year they may have put up a new thatch, that in another they may have renovated a wall, but the permanent home remained. In the light of ordinary experience it seems likely that the tenants expended this money in expectation of a permanent home and the landlord acquiesced; otherwise the tenants would have been foolishly wasting money and the landlord would have been standing inactive while the tenants were injuring his property.

In the circ circumstances of this case it does not seem to me that finding of the learned District Judge can have any possible bearing upon oar decision. The finding is that the tenants built what has been described as a katcha pucca house, that is, a house with brick foundations and mud walls and a thatched roof as a permanent abode, and that the landlord stood by and took no action to prevent them from doing so. If by the terms of their lease it was quite clear that the lease gave them no power whatever to erect anything in the nature of a permanent home or a building of this nature and the landlord either by his omission to interfere or by his active intervention encouraged the tenants in the mistaken idea that they had power to build sash a house and that they had a permanent interest in the land, no doubt the landlord could not afterwards turn round and set up a case that they only had a termporary interest, but in this case the terms of the lease have not been proved though they might have been proved by the defendants and it has been found that the leases were granted for the purposes of building some sort of a home. If that is so it may well be that, although they had power to build a house of this nature, the lease was only a temporary lease. Whether it was or not, the defendants could easily have proved. They have failed to do so and, therefore, the inference must be drawn against them that this was only a temporary lease making them tenants from year to year or tenant -a-will although they had power to build some sort of house. If that is the inference that must be drawn, it does not really matter in the least that the land-lord stood by whilst they built their houses, because it must in such circumstances be presumed that the tenants knew perfectly well what their rights were and, therefore, that they were not deceived or encouraged in any way merely by the landlord standing by and taking no action. Further, in cases where the landlord stands by and takes no action it must also be shown that he was aware of what his rights were and had power to prevent the tenants from building, But the finding is that they had power to build, and the facts necessary in order to bring about an estoppel have not been proved in these cases. In my opinion, these appeals, in so far as they rest upon any estoppel, mast also be dismissed with costs and the decision of the learned Judge of this Court must be upheld.

Mullick, J.

I agree.