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Gangabai, Wife of Sadashiv Vs. Kalapa Dari Mukrya - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom419
AppellantGangabai, Wife of Sadashiv
RespondentKalapa Dari Mukrya
Excerpt:
inam - resumption--landlord and tenant--adverse possession--assertion of adverse title--lease--permanent tenancy. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - athlye as..........lease was granted, to render, it probable that a permanent tenancy was intended to be created. nor do exhibits 6 and 59, referred to by mr. athlye, evidence any such intention. no doubt the tenancy has, in fact, continued for a very long time; but there is nothing to prevent a tenancy from year to year continuing for a century, or even longer, if neither the landlord nor the tenant chooses to put an end to it.4. the decree of the district judge must, therefore, be reversed, and that of the subordinate judge restored, with costs in both appeals on, the present respondent.
Judgment:

Nanabhai Haridas, J.

1. We cannot agree with the District Judge in his opinion that 'as soon as the village became khalsa * * * * the alienee, and those who held under him, ceased to have any rights.' When an inam is resumed, the inamdar's fight to exemption, from the payment of the Government assessment ceases. He thereafter becomes liable to pay such assessment but all his other rights remain unaffected. Those who were his tenants before the resumption do not thereby cease to be such. The relationship of landlord and tenant continues, the same as before. If, therefore, the nature of the tenancy in this case be such that the plaintiff, under the circumstances which have occurred, would have been entitled to eject defendants 2 and 3, had no resumption of the inam taken place, such her right is in no way affected by the resumption. It is found by the District Judge that 'the family of the Mukryas (defendants) have been tenants of the alienee for over a century, and that the kaul (exhibit No. 10) is genuine,' and that the plaintiff Gangabai represents the alienee or inamdar through her mortgagee, Venkapa Naik.

2. The District Judge finds, however, that 'the plaintiff cannot now oust the Mukryas, as they have not been disturbed since 1862, nor is it proved that plaintiff has within twelve years derived any profit from the lands.' But if they were tenants before 1862, the presumption is that they have continued in possession as such, and the mere non-payment of rent to the landlord has not rendered their possession adverse, so as to bar this suit against them. It is argued, however, that in 1858, after the death of the mortgagee's widow Gajrabai, the defendant's father applied to the Mamlatdar to transfer the khata to his name, alleging he was the owner under a permanent lease, and that, that being an assertion of an adverse title, the suit is now barred by limitation. But we are not referred to anything in the record which shows that that assertion, assuming it to be one of an adverse title, was made to the knowledge of the plaintiff, or of her brother Krishnaji. It appears that Krishnaji had applied to have the khata entered in his name, and that that was done in 1862. We are, therefore, of opinion that this suit is not barred by the law of limitation.

3. Now comes the question whether the plaintiff is entitled to eject the defendants. This depends upon the nature of their tenancy. The rely upon exhibit No. 10, which; though held not proved by the Subordinate Judge, is held proved by the District Judge. That, they say, is the lease under -which they have held for more than a century. We have, therefore, to see what the nature of the tenancy created by that document is. The words in it relied upon by Mr. Athlye as creating a permanent tenancy are these :'.You must pay every year Government dues, and enjoy the fields along with the garden lands without disturbance (sukkrup rahane), besides the fixed amount there will be no oppression on account of cesses.' We are unable to hold that these words create a permanent tenancy. There is nothing said in the document itself, nor is there any extrinsic evidence, as to the circumstances under which, or the consideration for which the lease was granted, to render, it probable that a permanent tenancy was intended to be created. Nor do exhibits 6 and 59, referred to by Mr. Athlye, evidence any such intention. No doubt the tenancy has, in fact, continued for a very long time; but there is nothing to prevent a tenancy from year to year continuing for a century, or even longer, if neither the landlord nor the tenant chooses to put an end to it.

4. The decree of the District Judge must, therefore, be reversed, and that of the Subordinate Judge restored, with costs in both appeals on, the present respondent.


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