1. This is an appeal under the Letters Patent from a decision of Mr. Justice Wassoodew.
2. The appellant, who was defendant No. 1 in the Courts below, is the inamdar of the village of Nevare in the Sholapur district. On November 4, 1918,. his father, who was then inamdar, executed a document, exhibit 39, by which he purported to grant to the plaintiffs a perpetual tenancy of certain land in the village on condition that they were to pay the assessment and local fund. It is not disputed that the terms of this document are such that they would! create a permanent tenancy, but unfortunately it was not registered and therefore under Section 49 of the Indian Registration Act, 1908, it cannot affect the property or be received as evidence of any transaction affecting the property. The plaintiffs, however, entered upon the land by reason of this document and held possession under it until 1936 when the appellant forcibly dispossessed them. They then sued to recover possession and their suit was decreed both by the original Court and the District Judge in appeal.
3. The finding of the Courts of fact was that although the permanent lease was invalid for want of registration, the plaintiffs had acquired the permanent tenancy of the land by prescription. Mr. Justice Wassoodew who heard the second appeal accepted this view. He was to a very large extent influenced by a decision of the Privy Council in Varatha Pillai v. Jeevarathammal (1918) L.R. 46 I. A. 285 . There is now a proviso to Section 49 of the Indian Registration Act to the effect that an unregistered document may be looked at as evidence of any collateral transaction not required to be effected by registered instrument. That is merely a statement of what was held to be the law even before this proviso and their Lordships of the Privy Council in Varatha Pillai's case held that one of the collateral purposes for which an unregistered grant could be received in evidence was the purpose of showing the character of the possession taken and held by the grantee. There it was a case of a gift, but on-principle there seems to be no reason why there should be any distinction in this respect between a gift deed and a permanent lease.
4. The ease for the appellant is principally based on a decision of this Court, Datto Shivram v. Babasaheb Malhar (1933) I.L.R. 58 Bom. 419 where no doubt the facts were very similar. Certain lands which belonged to the plaintiff had been leased to the ancestor of the defendant under a rent note in the year 1865. It purported to be a permanent tenancy, but the rent note was not registered. In 1925 the plaintiff sued to eject the defendant who contended that he was a permanent tenant and had acquired the right of permanent tenancy by adverse possession. This claim was negatived by this Court. It was held that the rent note was compulsorily registrable, and as it was not registered, it could not affect the immoveable property comprised therein or be received in evidence of any transaction affecting such property. It was also held that no presumption of permanent tenancy by prescription could arise by reason of the defendant paying rent of a particular amount and that he could not rely on entries in the Record of Rights referring to a permanent tenancy because they were simply based upon the invalid rent note. As to the first point it may be pointed out that neither in the judgment of the learned Chief Justice nor in that of Mr. Justice Barlee is there any reference to Vartha Pillai V. Jeevarathammal which does not appear to have been cited. But as the only evidence as to the nature of the defendant's possession in that case appears to have been that he had continued to pay rent at the same rate, it may well be that even if this Court had considered the rent note for the collateral purpose of determining the character of the defendant's possession they would not have regarded it as sufficient evidence to prove the acquisition of permanent tenancy by adverse possession.
5. In any case Datto Shivram v. Babasaheb Malhar is distinguishable because in our case there is a great deal more evidence of the character of the tenant's possession and he has not to defend merely on the fact that he paid a uniform amount of rent. The trial Judge found on the evidence, more particularly on the defendant's own letters and admissions, that the possession of the plaintiffs was openly under the right created by exhibit 39 and to the knowledge of the defendant. The District Judge similarly found that the plaintiffs have openly and adversely held the land to the knowledge of defendant No. 1 for more than twelve years and their ownership of the perpetual tenure has become complete. Referring to this aspect of the case Mr. Justice Wassoodew says (p. 539):-
Upon the character of that possession I accept the view of the Courts below that the entry was in assertion of the 'mirasi' rights. The correspondence between the parties and the large expense incurred by the tenant is suggestive of the intention with which he occupied the lands. It is material to note that he subsequently rented those lands to various tenants and at least to one of the rent-notes the inamdar is an attesting witness. Since 1920 till the date of dispossession in 1936 the plaintiffs have been consistently regarding themselves as mirasdars and treating the lands as theirs. It has been pointed out that in the rent-notes the plaintiffs described themselves as 'Malaks' or owners of this property. It is urged that the effect of those assertions is displaced by the payment! of rent to the landlord which is tantamount to the tenants' accepting the position of a tenant-at-will or tenant from year to year. But the annual payment of Rs. 3 was for assessment and not Tent and annas three for local fund. That was so treated by the plaintiffs, and that is the finding of the Courts below.
6. Mr. Justice Wassoodew in agreement with the Courts of fact has found that the plaintiffs were really in the position of mirasdars and occupants of the land rather than tenants in the ordinary sense. Their position therefore is essentially different from that of the tenant in Datto Shivram v. Babasaheb Malhar.
7. In the latter case reference was made to Nainapillai Marakayar v. Ramanathan Chettiar on the question of the acquisition of permanent tenancy by prescription. In the headnote of that case it is stated that the defendants being tenants could not obtain the right of permanent occupancy by prescription. But there is no discussion of this point in the judgment, merely a reference to Madhavrao Woman Saundalgekar v. Raghunath Venkatesh Deshpande and what was decided in that case was that persons who, and whose predecessors-in-title, have claimed to be, and were, tenants of service watan lands cannot acquire title to a permanent tenancy of the lands by adverse possession as against the watandars from whom they hold. So that it is clear that the proposition laid down in Nainapillai Marakayar v. Ramanathan Chettiar that no tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands does not mean more than this that a person who enters upon lands as an ordinary tenant cannot by prescription acquire against his landlord the right to a permanent tenancy. Neither of these Privy Council cases in our opinion has any bearing on a case such as that with which we have to deal, viz. entry upon land under a permanent lease invalid by reason of want of registration but followed by conduct showing the possession of the lessee as permanent tenant or mirasdar. In this connection reference may be made to Kamakhya Narayan Singh v. Ram Raksha Singh
8. In Thakore Fatesingji v. Bamanji A. Dalai (1903) I.L.R. 27 Bom. 515 it was held to be well established that there can be adverse possession of a limited interest in property and that permanent; tenancy could be acquired by prescription. It is true that in Shri Satyadhyantirtha v. Raghunath (1925) 28 Bom. L.R. 743 Mr. Justice Fawcett referred to this case and suggested that its authority had been shaken by the rulings of the Privy Council to which I have referred, viz. those in Nainapillai Marakayar v. Ramanathan Chettiar and Madhavrao Woman Saundalgekar v. Raghunath Venkatesh Deshpande. But the documents which the Court had to construe in that case were not such as on the face of them created a permanent tenancy, and Mr. Justice Fawcett said (p. 747):-
It is true that the documents can be looked at to show that the plaintiffs were in possession as tenants, and if the documents had in clear language said that they were permanent tenants, that might probably also be taken into consideration in view of the ruling in this Court in Thakore Fatesingji v. Bamanji A. Dalai.
9. I have already pointed out that the Privy Council rulings which Mr. Justice Fawcett considered to have weakened the authority of Thakore Fatesingji v. Bamanji A. Dalai have no application at any rate to a case like the present.
10. In our opinion Mr. Justice Wassoodew was justified in confirming the decrees of the lower Courts in spite of the decision in Datto Shivram V. Babasaheb Malhar, and we dismiss this appeal with costs.