Patna High Court
Onkar Mal Marwari And Ors. And Shaikh ... vs The Secretary Of State For India In ... on 10 May, 1920
Equivalent citations: 56IND. CAS.813, AIR 1920 PATNA 109
JUDGMENT Sultan Ahmed, J.
1. These appeals arise out of two suits which were instituted by the Secretary of State for India in Council against the defendants for khas possession of the lands in suit by evicting the defendants. The plaintiff's case is that village Doranda with other villages constituted a Cantonment which was created in 1833 or 1834. That towards the end of 1905 the troops were withdrawn from the station but it continued to be managed by Cantonment Regulations up to 1908. At the end of 1908 the Cantonment Regulations were withdrawn and the station has since then been managed by the Khas Mahal Department. It was farther alleged that during the period when Cantonment Regulations were in force, no permanent settlement of any kind was made but that people used to live there under the permission of the military authorities and that the permission to the predecessors of the defendants to remain within the Cantonment was simply a license and did not give them any permanent right whatsoever. The defendants contested the suits on the allegation that they had a permanent interest in the lands in dispute. They further alleged that they bad built permanent structures and costly buildings with the knowledge of the authorities and contended that the plaintiff was estopped from denying their permanent right to the lands. There were other pleas also taken, but it is not necessary to deal with them as they were not touched in the course of the arguments before me. Both the Courts below came to the conclusion that the possession of the lands in suit by the predecessors-in-interest of the defendants was on sufferance or at the highest it was a tenancy from year to year and that the defendants had absolutely no permanent interest in the lands in suit, and, therefore, held that the plaintiff was entitled to evict them. These second appeals have been filed against the decrees of the lower Appellate Court. The learned Counsel for the appellants firstly contended that on the evidence in the case the permanent tenancy of the defendants had been established. There can be no doubt that, on a question whether the tenure is permanent or precarious, the burden of proof must lie upon the defendant who sets up the permanent tenancy. It is not alleged that there was any written lease under which the predecessors of the defendants were inducted on the land. Bat it is argued that as they held these lands for a very long time and the rent had never been altered, that as succession to the lands by transfer and inheritance bad been established and that as buildings have been erected on them, the permanent tenancy of the defendants must be inferred. I will presently show that these circumstances by themselves do not and cannot establish permanent tenancy, but considering that permanent tenancy is claimed in lands which formed part of a Cantonment governed by Cantonment Regulations these circumstances are almost valueless to prove permanent tenancy. The whole scheme of the regulations under which Cantonments have been established in India seems to be based on the principle that the Cantonment Authorities or the Government should not in any circumstances contract themselves out of the powers to resume lands lying within a Cantonment. It is unnecessary to refer to the various Regulations and Acts governing Cantonments, as this point has not been challenged by the learned Counsel appearing on behalf of the appellants. In the case of Kaikhusru Aderji v. Secretary of State for India in Council 12 Ind. Cas. 117 : 15 C.W.N. 909 : 10 M.L.T. 97 : (1911) 2 M.W.N. 23 : 14 C.L.J. 268 : 18 Bom.L.R. 788 : 8 A.L.J. 1219 : 21 M.L.J. 1100 : 36 B. 1 : 38 I.A. 204 (P.C.) their Lordships of the Judicial Committee held that "Such circumstances raise no presumption that the appellants or their predecessors in-title were owners, and that the appellants were mere licensees and the land in question was lawfully resumable by Government." It has been found that the defendants and their predecessors came on this land after the year 1834 when the Cantonment was established, and, therefore, it must be taken that the right of the Government to resume the land, even when buildings have been erected thereon, was fully known by the defendants and their predecessors. Great reliance has been placed by Mr. Sen on the fact that permanent structures had been constructed on these lands, and, therefore, it is submitted that the plaintiff is estopped from denying the permanent character of the tenancy of the defendants. The leading authority on the law upon this point is Ramsden v. Dyson (1865) 1 H.L. 129 : 12 Jur. (N.S.) 506 : 15 W.R. 926, where the Lord Chancellor at page 141 of the report observed: It follows as a corollary from these rules, or, perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon some to an end." Their Lordships of the Privy Council in the case of Beni Ram, v. Kundan Lal 21 A. 496 : 1 Bom.L.R. 400 : 3 C.W.N. 502 : 26 I.A. 58 : 7 Sar. P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.) at page 502 observed as follows: ''If there be one point settled in the Equity Law of England, it is, that in circumstances similar to those of the present case, the mere creation by the tenant of permanent structures upon the land let to him, in the knowledge of and without interference by his lessor, will not suffice to raise the equitable right against the latter which has been affirmed by the Courts below." There is absolutely no evidence that the defendants were induced to expend their money by reason of something amounting to an agreement or license on the part of the landlord. Under these circumstances the plaintiff in my opinion has established an irresistible case for the eviction of the defendants, Mr. Sen, however, has pressed upon me the question of compensation, He has submitted that at any rate he is entitled to compensation with respect to the structures. In this connection it may be observed that the maxim "quicquid in cedificatum solo, solo cedit" has no application to the present case and as was pointed out by the Judicial Committee in the case of Beni Ram v. Kundan Lal 21 A. 496 : 1 Bom.L.R. 400 : 3 C.W.N. 502 : 26 I.A. 58 : 7 Sar.P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.) referred to above, the rule established in India is that of Section 108 of the Transfer of Property Act, which provides that "the lessee may remove, at any time during the continuance of the lease, all things which he has attached to the earth: provided he leaves the property in the state in which he received it." If the defendants with full knowledge of the limited interest which they possessed in the land constructed permanent structures upon the same, they are not entitled to any compensation as in the words of the Lord Chancellor "it was their folly to expend money upon a title which they knew would or might soon come to an end." That the Government allowed compensation to some other persons who were similarly evicted is irrelevant to the determination of the legal rights of the parties. Nor has condition IX of the Annexure to Form A of the Cantonment Code of 1899, which is the form of lease for lands situate in Bazars, etc., any bearing upon these cases where no lease is ever said to have been executed. The result is that these appeals are dismissed with costs.