TMI Blog1927 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent contends, mere tenants at will, or, as they themselves assert, are they entitled to a permanent inheritable right therein subject to the payment of a fixed rent? 2. The Subordinate Judge of Delhi decreed the suit. On appeal by the defendants the District Judge of Delhi dismissed it. On the 17th March 1922, the High Court of Judicature at Lahore, on second appeal by the plaintiff, reversed the decree of the District Judge and restored that of the Subordinate Judge, with a modification relating to the buildings on the land, to which their Lordships will refer later. This appeal to the Board is against the decree of the High Court. The appellants ask that the order of the District Judge be restored and that the suit against them be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. Their Lordships are in entire agreement with all the learned Judges on this point The declaration, in their view, being unregistered, cannot, even if proved, be receivable in evidence in this suit. Accordingly, they dismiss from their minds both the declaration and its contents. 5. Up to March 1904, the rent paid for the land by the tenants had been Rs, 12-8 per mensem. In that month the respondent's father, who had by purchase become the ground landlord, served the then tenants - in substance, the present appellants - with notice requiring them, to pay an enhanced rent of ₹ 25 per mensem or vacate the land, and on the 9th January 1905, filed a suit against them in the Court of the Subordinate Judge at Delhi claiming to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the plaintiff's counsel. He stated that in the circumstances he would have been prepared to allow the application if he had thought that it lay. In his judgment, however, such an application could only be made by a person aggrieved by a decree, and he added that it could not possibly be said in that case that the granting of a decree, for enhancement of rent implies that the defendants are permanent tenants. If the decree could be said to involve any implication at all as to the nature of the tenancy, the implication would be the other way, namely, that the tenancy is not permanent. It is only the judgment by which the plaintiff is aggrieved, He is in no way aggrieved by the decree, and, therefore, he cannot apply for a review. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dships think, be treated as a pronouncement binding as between these parties that the tenancy was not permanent. 10. The order enhancing the rent is however, not without importance in the present litigation. The defendants, if their contention that the tenancy was permanent had been well founded, could have had that order discharged on appeal. They did not appeal, and they cannot now be heard to say that a less rent than the ₹ 25 which they have since paid without protest was alone properly payable. It may well be that neither party to the 1905 litigation was eager to put prematurely to the test the question so stoutly litigated in the present proceedings, but, as is shown by the plaintiff's application for review, and by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved fact is a question of law, and the question whether a tenancy is permanent' or precarious seems to them, in a case, like the present, to be a legal inference from facts and not itself a question of fact. The High Court has described the question here as a mixed question of law and fact, a phrase not unhappy if it carries with it the warning that, in so far as it depends upon fact, the finding of the Court on first appeal must be accepted. On these lines, which the High Court appear strictly to have observed, the appeal to that Court was competent and it was in their Lordship's judgment open to the learned Judges there to entertain it as they did. 13. With the actual conclusion of the High Court their Lordships find themselv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement on the defendants' behalf the allegation is that at the time of the erection of the building there was an oral agreement between the proprietor of the land and the defendants' predecessors in title that they would pay a fixed rent of ₹ 12-8 so long as the house to be erected was in existence. That is all. How far these pleas, even if they had been proved, were consistent with any permanent tenancy after the destructive fire of 1911 has not been investigated. 16. Lastly, their Lordships cannot get over the continued payment of the enhanced rent of ₹ 25 per mensem ever since the decree in the 1905 suit. It is not now in contest that such an enhancement of rent is entirely inconsistent with the notion of a permane ..... X X X X Extracts X X X X X X X X Extracts X X X X
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