Louis P. Russell, Acting C.J.
1. In this case the plaintiff sued for a permanent injunction restraining the defendant from obstructing him in the enjoyment of the nineteen mango trees and one jambul tree specified in the plaint and preventing him from entering; the land in which the trees are situated and taking the produce of the trees and having the same watched every year; also to recover Rs. 30 as compensation for the loss of profits for the year 1903.
2. The facts shortly stated are as follows:
Survey No. 248 at Mandwa stands in the names of Kesurdas. Karsan, Haribhai Naran, Baji Bhikha and Bhaiji Ota, who were Bhagdars; but it had been in the possession and enjoyment of one Khushal Bhikha as permanent tenant, paying the Govern-ment assessment and since his death is in the possession and enjoyment of his heirs. Khushal Bhikha had planted mango and jambul trees in the land and was in possession and enjoymen t of them. In 1873 Khushal mortgaged twelve of the mango trees to the plaintiffs deceased father under a registered san mortgage,. In 1878 he mortgaged the same trees with possession to the plaint -iffs father, whom he put in possession thereof. In 1881 he sold twenty-four mango trees, including the twelve mortgaged and one jambul tree to the plaintiff and his brother under a registered sale-deed. The plaintiff and his brother had been in possession and in enjoyment of the twelve trees from the day of the possessory mortgage and all the twenty-five trees from the date of the sale-deed by right of ownership. In a partition between the plaintiff and his brother in 1896 all the said trees had fallen to the plaintiff's share and the plaintiff had been in possession and enjoyment thereof. In 1881 and again in 1892 Khushal Bhikha had mortgaged to the plaintiff and his brother his permanent right of occupancy in the land and both the land and the trees are in the plaintiffs possession. The defendant has recently taken in mortgage Kala Kesurdas' half share in the land from him and on the strength thereof in June 1903 he drove away the plaintiff's men who were watching the trees and thus obstructed the plaintiff in the enjoyment thereof. The plaintiff has suffered a loss of thirty rupees. The defendant continues his obstruction and is doing damage to the trees and only nineteen out of twenty-four mango trees now exist.
3. The defendant in his written statement inter alia said that Khushal Bhikha was not permanent tenant of the land and the trees were not planted by him. He does not admit the plaintiffs possession and enjoyment ;he knows nothing about the partition between the plaintiff and his brother; he denies that he obstructed plaintiffs men in June 1903; assuming that the trees were planted by Khushal, still according to the law and custom of the country they would belong to the owner of the land and not to the tenant; the land in question formed an unrecognized portion of a bhag; the documents on which the plaintiff relies are void and of no effect, having been passed in contravention of the provisions of Bombay Act V of 1862; assuming Khushal was permanent tenant he had executed a lease in favour of the plaintiff's father and thus denied the bhagdar's title and the perma-nent tenancy had come to an end; Kala Kesurdas and others had mortgaged to him their entire bhag including their share of Survey No. 248 with possession on the 23rd April 1903 and all itheir rights had vested in him by virtue of the mortgage; none of the acts of Khushal were binding on the bhagdars or their mortgagee the defendant; the land and the trees standing thereon belonged to the bhagdars and now belong to the defendant as mortgagee.
4. The first Court held inter alia that Khushal was permanent tenant and the trees were planted by him and his ancestors, that the was entitled to the possession and enjoyment of the trees and to convey such rights as he may have over them to the plaintiff that Khushal executed a lease in favour of the plaintiff's father but that did not amount to a denial to the bhagdar's title; he had not ceased to be a permanent tenant and the tenancy did not cease with his death but is still subsisting; that the mortgage bonds to the plaintiffs father and the mortgage-bond and sale deed to the plaintiff and his brother are proved; that the sale-deed of the trees was not void; that the plaintiff was obstructed by the defendant in June 1903; and then an injunction was issued against the defendant restraining him from obstructing the plaintiff in the enjoyment of the produce of the trees etc. and the injunction is to continue so long as the right of permanent tenancy in Survey No. 248 which Khushal had and which is vested in his sons subsists; plaintiff is to recover Rs. 20 and costs from the defendant.
5. The lower appellate Court modified the decree of the lower Court by substituting an order that the injunction should continue until the determination of the tenancy from year to year under which Khushal Bhikha held and, after him, his sons hold Survey No. 248 as tenants of the Bhagdars.
6. The first question, therefore, that arises is whether Khushal had a permanent right of occupancy in the land. It appears to us that he had. Both the Courts have agreed in this conclusion of fact; but the lower appellate Court held that Khushal must be held to have been only a yearly tenant and would have had the right to the produce of the trees during the continuance of his tenancy which was from year to year and was still subsisting. In our opinion, however, this conclusion of the lower appellate Court was based upon a wrong construction of the register of 1882, Exhibit No. 17. That register refers to three classes of permanent tenants. The first class appear to have been tenants more than 20 years on the land. The second class were on the land from before Samvat 1920 (1864). The third class are entered as follows:-First the Survey number; then: 'Pays Rs. 22 every year: there is no other condition.' The same entry appears against Survey No. 248 : 'Pays Rs. 99 ; no other condition (or literally) term.'
7. From this it appears to us that para 2 of Section 83 of the Land Revenue Code applies.
8. This, therefore, creates a permanent tenancy some years before Act V of 1862, the Bhagdari Act, was passed.
9. The next question that arises is whether the sale deed to the plaintiff (Exhibit No. 50) is void under Act V of 1862. It seems to us impossible to hold that it is. The preamble to Act V of 1862 (1) shows, we think that the sale of the produce of fruit trees could not possibly come within the purview of the Act which was directed to prevent the alienation etc. of any portion of any bhag or a share in any Bhagdari village other than a recognized sub-division of such bhag or the alienation etc. of any homestead etc. appendant to such bhag or recognized subdivision etc. There is nothing to show that these mango trees are by custom used or likely to be used or fit for use for building purposes and they are, therefore, primarily at all events fruit trees and would not come in this case within the definition of ' standing timber' in Section 3 of the Indian Registration Act III cf 1877. See Krishnarao v. Babaji ILR (1899) 24 Bom. 31.
10. In fact there does not appear to us to be anything in Act V of 1862 to prevent a permanent tenant of a Bhagdar from alienating the fruit of the trees on the land, of which he is a tenant, in the same way as he could alienate the crops or grass upon Such land.
11. It is important to observe that no question arises in this case as to in whom the absolute ownership of the trees vests nor does any question arise as to any cutting down of the trees. Any questions of that kind remain to be determined, if necessary, between the plaintiff and the Bhagdare, as it is not suggested that the defendant by his mortgage-deed (Ex. No. 46) can ihave acquired any right of ownership in the trees and even then it could not be contended that a Bhagdar is by Act V of 1862 precluded from cutting down and, disposing of trees standing in his own land.
12. We, therefore, think that the finding of the first Court that Khushal had at any rate the right of possession and enjoyment of the trees during the continuance of his tenancy and that the sale-deed passed by him to the plaintiff has continued that aright to the latter and the plaintiff is entitled to take the produce of the trees as long as the tenancy lasts is correct.
13. In our opinion, therefore, the decree of the lower appellate Court should be reversed and the order passed by the first Court restored and the defendant must pay the costs of the suit throughout.
14. We cannot part with this case without expressing our appre-ciation of the very careful and clear judgment of the Subordinate Judge.
15. The question is whether the plaintiffs vendor was a permanent tenant The property sold was trees standing in an nurecognized portion of a Bhag, within the meaning of the Bhagdari and Narwardari Act No. V of 1862. The defendant-respondent is the mortgagee of a recognized share of a Bhag and some at least of the trees which were sold by the tenant to the plaintiff appear to stand on that share. The first Court held in a very clear and to my mind convincing judgment that the plaintiff's vendor (for brevity it will be convenient hereinafter to call him simply the plaintiff) was a permanent tenant and that; he had a perfect right to sell the trees and to the injunction prayed for against the defendant. Upon the question whether a tenant has the right to sell standing trees, there was some argument at the end of the case. But by that time the respondent's, case had definitely taken this shape that the plaintiff never could have acquired the status of a permanent tenant; if he had done so it must have been before the passing of the Bhagdari Act and therefore he by the passing of that Act became to the limit. of his tenancy a Bhagdar and subject to the restrictions which the Act imposed on alienations. Amongst those would be restrictions on the right of selling away standing timber, which is part of the estate and cannot, any more than any other part of an unascertained and unrecognized share of a Bhag be alienated. The answer to that however is that Bhagdars do appear to enjoy unfettered rights of cutting using and selling their timber. And if the respondent's plea that plaintiff although a permanent tenant and since the passing of the Bhagdari Act virtually a Bhagdar, is, yet prohibited by the provisions of Section 3 of the Act from disposing of the trees on his land, I think that it is altogether unfounded and must fail. But I am not inclined to go a step further in the way of generalization than I am obliged and it is to be noted, that the Courts below find, that in this case there is no question of cutting or removing the trees ; the plaintiff only asks to be allowed free and unimpeded access to and enjoyment of their fruits. It cannot of course be disputed by any one that a tenant has the right to useful fruits of his trees and as the present claim goes no further I shall content myself with holding that the special plea raised by the respondent against any right in a tenant to alienate the trees on his holding fails for the purposes of this suit. The first Court found that the tenancy was permanent and therefore that the plaintiff was entitled to a permanent injunction. The Court of first appeal held that the tenancy was from year to year and cut down the injunction accordingly. This then is the chief contention. Plaintiff contends that he is a permanent tenant entitled to a permanent injunction, the defendant that he is a yearly tenant and entitled to no more than an injunction up to the end of his tenancy. I think it may be taken that the tenancy commenced long before the passing of the Bhagdari Act. The lower Court found so and speaking for myself I have no hesitation in saying that in my opinion all the evidence points that way and that is the right conclusion. In the lower appellate Court however the learned judge throws some doubt on that finding. It cannot be said that he finds to the contrary, or indeed that he has found definitely either way. In his view it was unnecessary to do so. He thought that whether the tenancy began after 1862, or whether the origin of it was lost by reason of its antiquity made no difference. That too in effect is the defendant's position in this appeal. But to strengthen it, ho added that the Court below had found as a fact that the tenancy did commence some time after 1862. If that were so there would be an end of ihe matter. Because I admit at once that no permanent lease could be given out by Bhagdars after the passing of the Act, nor even had time enough elapsed could a right of that kind be ac-quired by prescription against the terms of the Act. Last, at the present day it would be absurd on the face of it to say that the origin of a tenancy, Avhich is proved to have commenced since 1862 is lost by reason of its antiquity. The only words in the judgment of the learned judge of first appeal which give any (support to the contention that he found as a fact that the tenancy did not begin before 1862 are: 'The facts that no claim is shown to have been made does not prove that the tenancy was not in existence. Indeed it is extremely difficult to understand in what way or for what purpose a 'claim' of the kind would have been made. It is certain that the landlord did not raise any dispute or interfere with the tenant's long enjoyment. What was there, then, for the tenant to 'claim.' Was he likely in those days to go into a Court for a declaration ?' In another part of the judgment the learned Judge analyses a single document in such a way as to suggest rather than draw a hesitating conclusion that the tenancy must have commenced after 1862. But there is certainly no positive finding to that effect and as to the material on with it rests, the Revenue register, we think it at least as capable of supporting the opposite conclusion, by a stronger process of reasoning. But whatever the learned Judge of the Court below may have felt, if indeed beyond academic doubts he did feel any, as to the correctness of the finding of the first Court that the origin of the tenancy was lost in antiquity and therefore of course long anterior to the Bhagdari Act, it is certain that he attached no importance to them. For he expressly states that for the purpose of his finding upon the point of law which substantially disposed of the case before him, he was quite willing to assume that the tenancy was ancient and had commenced before the Bhagdari Act came into force. His reasoning which has been adopted without any material or useful addition by the defendant before us, amounts briefly to this. In the state of the case law before the passing of the Bombay Land Revenue Code, 1879 no permanent tenancy could be proved in the Courts except 1, by express terms in the lease itself; 2, by proof of a special local usage showing that where a tenancy was of the kind then in suit, the conditions were understood by the country side to imply a permanent tenancy. The plaintiff here could not prove the terms of a lease, because admittedly there was none. Nor had he been before the Courts in 1861 would his already long possession at a fixed rent have availed him anything as proof of permanent tenancy. Therefore when the Bhagdari Act came into force in 1862, whether he was or was not a permanent tenant, he could not have proved it. And thereafter he could not have acquired this specially advantageous form of tenancy by efflux of time. Consequently he cannot now use Section 83 of the Land Revenue Code of 1879 under the provisions of which it is plain, that but for this rather subtle and technical difficulty he must succeed. That process of reasoning seems to me to involve a glaring fallacy. Even assuming for a moment that the cases on which it rests were all correct and accurately represented, the almost universal Indian conceptions of tenant right, not one of them I think goes the length of saying that in the circumstances in which they held the facts proved did not support the conclusion that the tenancy was permanent, that conclusion might not nevertheless have been proved in another way and might not have been the actual fact. Put at the highest this was only case law, judge-made law, indicating what in the mind of certain very eminent Judges, but Judges for the most part imbued deeply with the principles of English law and the correlated English ideas, was the only proper proof of a permanentitenancy in India. It is not necessary here to analyse the contents of all the implied notions and thus to show how widely the resultant conception differs from that which I believe prevails through the mass of the landlord and tenant classes of India. However it may be in England, permanency is quite a familiar and valued feature of tenancy in India. It would I think strike any large body of tenants, as a singular and incomprehensible proposition, that where a tenant was able to show that he had enjoyed his holding for a time so long that the memory of man runneth not to the contrary and at a fixed rent, our Courts should still cast on him the burden of proving that there was local usage in his neighbourhood by which in the circumstances permanency was implied. He would rather expect the Courts to ask his landlord to prove a local usage by which it was not. And that notwithstanding the case-law to the contrary, this was the view of Government guided and advised by officers intimately acquainted with land tenures throughout the presidency and equally familiar with the sentiment and prejudices, the habits, and the opinions of the people is clear from the terms in which in 1879 Section 83 of the Bombay Land Flevenue Code was enacted. It distinctly and we must believe ad-v isedly lays down a rule not only different from, but the precise opposite, of the rule of the cases. No one who knows anything at all about land tenures, can doubt that the legislative rule is much better adapted to arrive at the real conditions and true facts of ancient tenancies, than the highly artificial rule of the Courts. And it seems to me clear, that after 1879, when the question before the Courts was whether a tenancy was or was not permanent, the Court had to answer it by the rule laid down in Section 83 of the Land Revenue Code, if there were no other direct all still more convincing proof. The defendant does not deny, indeed he could not deny, that prior to the Bhagdari Act of 1862 Bhagdars might give out the land of their Bhags on permanent tenancy. Whether they can do so still is a question upon which as far as I know there has been only one and that a more or less indirect, judicial decision. But we may assume for the sake of this argument in the defendant's favour that they cannot. The question and the only question between the parties still, is: Did the Bhagdar in fact give the plaintiff a permanent tenancy? The plaintiff alleges that he did ; he proves to the complete satisfaction of the first Court that his tenancy is very old going back near one hundred years. I agree that, that is proved. I agree too with the Court of first instance that the origin of the tenancy is by reason of its antiquity lost. Thus all the conditions imposed by Section 83 of the Land Revenue Code are fulfilled and it appears to me that the Courts have no option but to give effect to the remainder of its provisions. I cannot for a moment accede to the contention that if this suit had been brought any time before 1879 because of the narrow view taken by the Courts the plaintiff might have found it difficult if not impossible to prove that his tenancy was permanent, it was not as a matter of fact permanent. The kernel of the defendant's case is that plaintiff's alleged permanent tenancy did not exist and could not have existed before 1879 because he is not able to produce a lease, or prove a local usage. Now the latter part of the proposition is on the face of it questionable and makes a very large assumption. We cannot say whether, even under the extremely fettering conditions imposed by the cases, the plaintiff might not have satisfied the Courts of his permanent tenancy, had the litigation originated before the Land Revenue Code was passed into law. And the first part of the proposition is manifestly untrue. No one would venture to say that an ancient permanent tenancy could not have been created and gone on existing in virtue of an oral agreement even, much more by a lease lost long since, although the Courts refused to acknowledge it. The Court rule indeed did not touch the fact, but merely the method of proving it; and that method did not commend itself to the Legislature and was superseded in 1879. If it were true or even arguable that a permanent tenancy could not have existed before 1879 because it could not have been proved otherwise than in the manner then provided there would be some room for the dependent proposition, that it was actually created not by agreement between the parties in the remote past, but by Legislative enactment of 1879 and therefore was prohibited the provisions of the earlier Act of 1862. But that dependent proposition seems to me when nakedly stated to carry its refutation on its face. Section 83 creates no new right, it simply insists on the Courts adopting a better method of ascertaining whether in fact the right existed. Here by applying that method we find that the right did exist long before creating it was prohibited by Act of 1862. It is conceded that, that Act has no retrospective effect. The conclusion necessarily follows that the first Court was right in holding that the plaintiff's permanent tenancy was made out and granting the injunction asked for. I would allow the appeal with all costs and dismiss the cross-objections with all costs.