1938 (1) TMI 28 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the learned Judge erred in not calling for a further Commissioner's report.
2. Whether the tenancy was permanent and transferable.

Issue-wise Detailed Analysis:

1. Whether the learned Judge erred in not calling for a further Commissioner's report:

The appellants contended that the learned Judge in the lower court was in error for not calling for a further Commissioner's report after not accepting the initial report and evidence provided by the Commissioner. The purpose of the Commissioner's report was to determine whether there had been an encroachment on the defendant's land, which was relevant to assessing the defense's claim that the landlords had consented to the land transfer. The defendants argued that such consent was given, followed by an exchange of land, and the plaintiffs had built upon the exchanged land.

The court noted that the Commissioner's report was merely evidence of whether buildings stood on the disputed land and not evidence of any agreement by the landlords to the transfer. The learned Judge in the lower court had the discretion to accept or reject the Commissioner's report and the evidence provided. The fact that the Judge did not accept the Commissioner's report did not constitute an error in law, nor did it necessitate the appointment of another Commissioner. Therefore, the appellants' contention that the judgment was erroneous in law was not supported.

2. Whether the tenancy was permanent and transferable:

The lower court held that the tenancy in question was neither permanent nor transferable and that the landlords' consent was not given. The appellants argued that a tenancy not governed by the Bihar Tenancy Act and existing before the Transfer of Property Act was transferable without the landlord's consent.

The court reviewed several precedents, including observations by Sir Barnes Peacock in Banee Madhub Banerjee v. Joy Kishen Mookerjee, which suggested that a tenure granted for living purposes, in the absence of evidence to the contrary, would be assignable. However, this observation was not necessary for the decision of the case and was considered obiter dictum.

In Doorga Pershad Misser v. Brindaban Sookul, it was held that long-term occupation with permission to build implied that the occupant could not be ousted at will and had the power to transfer the right. However, subsequent cases, such as Madhusudhan Sen v. Kamini Kanta Sen, clarified that the observation by Sir Barnes Peacock was a mere obiter.

The court also cited Ambica Prasad Singh v. Baldeo Lal, where it was established that for tenancies of homestead lands created before the Transfer of Property Act, the onus of proof was on the tenants to show the right to transfer. The court emphasized that the general law before the Transfer of Property Act was that tenancies were non-transferable unless proven otherwise by the tenant.

Further, in Kamala Mayee Dasi v. Nibaran Chandra Pramanik, it was noted that there was no distinction between a lease for homestead and a lease for residential purposes. The court concluded that the observation by Sir Barnes Peacock was against the current of decisions in the Calcutta High Court and could not be relied upon.

The court upheld the lower court's finding that the tenancy was neither permanent nor transferable and dismissed the appeal with costs, affirming that the decision was correct in law.

Conclusion:

The appeal was dismissed, and the judgment of the lower court was upheld. The court found no error in the lower court's decision not to call for a further Commissioner's report and affirmed that the tenancy was neither permanent nor transferable. The appellants' arguments were not supported by the prevailing legal precedents and interpretations.