1. The plaintiff, Lakhamgouda, sued to recover possession of certain lands from the defendants alleging that they were his tenants, arrears of rent and future mesne profits. The defence was that the defendants were holding the lands as tenants under a permanent lease. Two principal issues were raised, (1) Do defendants prove that they are entitled to hold the suit lands as the permanent tenants thereof on the strength of exhibit 61, and (2) whether they are entitled to the status of permanent tenants by adverse possession The learned Subordinate Judge held that the defendants were entitled to hold the suit lands as plaintiff's tenants on a fixed rent during the term of plaintiff's natural life only. In his opinion the document on which the defendants relied, exhibit 61, was not a permanent lease. But he held that the defendants had asserted their right to hold as permanent tenants in proceedings before the Revenue authorities in the year 1897, and had from that time been holding the lands adversely to the plaintiff, their landlord ; and, for this reason, he held that they had acquired by adverse possession a limited interest in the land, i.e. the right of tenancy during the; plaintiffs lifetime. Since the lands were watan lands, he held that the right which they had acquired against the plaintiff would not continue against his descendants.
2. This appeal has been riled by the plaintiff Sardesai of Vantmuri, and we are concerned with the question of adverse possession. The facts on which the decision must be based are briefly as follows.
3. In the time of the plaintiff's father the tenant in possession was one Datto Govind Punde, and plaintiff's father sued him in 1872 and got a decree in his favour for possession. Datto appealed but did not persist in his appeal, for the parties came to terms and the plaintiff's father accepted a rent-note, which is exhibit 61. It is on the terms of this document that the present defendants, who are the successors-in-interest of Datto, rely in support of their contention that they are permanent tenants. This is a question which has been raised by cross-objection, and I will consider it later.
4. The plaintiff's father died in 1877, and his widow adopted the plaintiff, and during his minority the estate was under the management of the District Judge. The land remained in the possession of Datto until his interest was sold in execution of a decree and was purchased by one Mahomed, who sold it to defendant No. 2. The other defendants have acquired their interest in the land from him, In 1897, the plaintiff, who had come of age about twelve years before, started proceedings under the Watan Act before the Assistant Collector to recover the land from defendant No. 2, He claimed that defendant No. 2 was in unlawful possession of the lands which were watan lands and asked the Assistant Collector to restore them to him. This request was refused. The defendants pleaded that they were tenants under a permanent tenancy, and the Assistant Collector decided that he could not interfere inasmuch as the land had been alienated before the date of the Watan Act. The Sirdesai appealed to the Collector and then to Government, but he was unsuccessful in his attempt to recover the land. After the appeal to the Government was unsuccessful, he seems to have remained quirt until 1925, when he filed the suit out of which this appeal has arisen. He then pleaded that the lands were deshghat inam lands, that defendant No. 2 was in possession as an annual tenant, that defendant No. 2 had not paid rent for six years, that he had given him notice, and he asked for possession and arrears of rent, as I have said. The principal defendant was defendant No. 2 and he pleaded that he was a permanent tenant.
5. Now the learned Subordinate Judge has held at page 6 of the print that the defendants, in the proceedings before the Revenue authorities between 1899 to 1905, were pleading their right openly and to the knowledge of the plaintiff, claiming that they held the lands as permanent tenants ; and accordingly, in his opinion, they had acquired by adverse possession a limited interest, i.e., the right to hold the lands as plaintiff's tenants till the plaintiff's death. There is no doubt that the defendants did assert a right of permanent tenancy, but we are unable to accept the conclusion of law at which the learned Subordinate Judge has arrived. He has relied on a number of Bombay rulings which decided that a limited interest in land such as the right of permanent tenancy can be acquired by adverse possession. But these rulings have been, superseded by decisions of the Privy Council in several cases and those decisions have since been followed in our own Court.
6. In Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202 Lord Salvesen held as follows (p. 208) :-
The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesi was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupany or tenant title into that of an under-proprietor.
Then comes the case of Madhavrao Woman Saundalgekar v. Raghunath Venkatesh Deshpande : . The learned Subordinate Judge has sought to differentiate it on the ground that it simply decides that there can be no acquisition of an interest by a tenant by adverse possession in the lifetime of a deceased Watandar so as to prevail against the successor. With respect it does not appear to us that this distinction is correct. In that case one Venkatrao executed a permanent lease and died. His son had twelve years to dispute the lease but did not do so. His grandson sued to avoid it, and the trial Court held that his right to dispute it and to recover possession had been lost by adverse possession. Their Lordships of the Privy Council, however, took the view that 'neither the defendants nor the predecessors-in-title who always claimed to be and were tenants.. could have acquired any title to a permanent tenancy by adverse possession against the watandars from whom they held the lands.' This decision was followed by the Board in the case of Naina-pillai Marakayar v. Ramanathan Chettiar , where the law is briefly stated as follows (p. 98) :-
One of the reasons for these consolidated appeals as stated in the case for the appellants is : '4. Because the appellants have acquired permanent occupancy right by prescription.' 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:...
These decisions have been referred to by Mr. Justice Crump in the case of Bhailal v. Kalansang : (1927)29BOMLR1558 , and his conclusion was as follows (p. 1561):- it would appear upon these authorities that no title to a permanent tenancy could have been acquired by prescription in such a case as the present.
7. The learned Government Pleader who has appeared for one of the respondents has relied on Kamakhya Narayan Singh v. Ram Raksha Singh : (1928)30BOMLR1361 , the head-note of which runs as follows-
Where on the death of the original lessee his heirs and assigns hold over, and Openly and continuously assert that the interest conveyed by the mukarrari istemrari lease was of a perpetual, permanent and heritable nature, they thereby, by such continued assertion of an adverse right for more than twelve years prior to the suit, acquire a right to hold the land as permanent mukarrardars by prescription and adverse possession (under Article 144 of the Indian Limitation Act, 1908).
The previous cases to which I have referred were brought to the notice of the Board but they did not consider it necessary to refer to them as the facts in this case did not bring it within the rulings contained in them. They say, further, that the evidence went to show that after the expiration of the lease for lives the plaintiff's predecessor-in-title did not in fact, claim to be landlord ; in other words that suit was framed as a suit against a trespasser arid Article 144 applied.
8. Their Lordships of the Privy Council decided this case on general principles. But if we turn to the Indian Succession Act we arrive at the same conclusion. The plaintiff here sued as a landlord who had put an end to a tenancy by a notice and in their defence the defendants did not deny that they were tenants and did not deny that they had received a notice. The suit clearly was framed as a suit between a landlord and tenant. Article 139 applies to a suit by a landlord to recover possession from a tenant and the terminus a quo is the date on which the tenancy was determined. This is the specific article for a suit between landlords and tenants and must be used in all suits of that nature, in preference to Article 144 which is a general article. It follows that the question in such a case is whether the lease has been put an end to within twelve years of suit, and not whether there has been adverse possession.
9. It has now been contended that the tenancy created by the plaintiff's father came to an end on his death and that since then the tenants have been tenants at sufferance, which means that they have been trespassers. If this were so, they would have acquired their title long ago and would not have been merely tenants claiming a limited interest, but would have been able to claim ownership of the land. But it does not seem to be correct to say that they have been merely tenants at. sufferance since the date of the plaintiff's father's death. In their pleadings in the revenue proceedings in 1899 (exhibit 144) they specifically stated that they had been enjoying the land adversely to the applicant for many years and that the applicant had been accepting rent regularly for many years. They rely also on the fact that in 1897 the plaintiff sought to evict them as trespassers, and they claim that he cannot now be allowed to change his ground. This might have been a good defence if it had been raised at the proper time. But there is nothing of this nature in the written statement. The defendants did not say that they had been treated as trespassers, that their tenancy was put an end to by the plaintiff in 1897, and that they have been in possession ever since adversely. On the contrary they pleaded they were in possession as tenants. They cannot be allowed to change their defence, and, therefore, we have to hold that they were tenants up to the date of the suit and they were not entitled to raise the defence that they had been in adverse possession.
10. The appeal, therefore, must succeed.
11. The defendants have objected in their cross-objections to the finding of the learned Subordinate Judge that exhibit 61 did not create a permanent lease. The words of that document on which they rely are as follows-
I made a personal request that I was willing to pay to the State annually a total sum of Rs. 62 1/2 rupees sixty two and a half made up of Rs. 50 fifty 'Kadvar' ('till the end') according to the survey assessment.
The word 'Kadvar' they claim means permanently. But there is no evidence that this is the meaning. The learned Subordinate Judge holds that at most it meant 'till the end of either the lessor's or the lessee's life, and we can see no reason for refusing to accept this view.
12. It has been contended that the .conduct of the plaintiff's father points to the conclusion that he intended to give a permanent lease inasmuch as on the day on which he accepted the rent note he advanced a sum of money to the lessee on, the security of his tenure. This certainly is a very curious circumstance, but it does not necessarily follow that he meant to grant a tenancy for perpetuity. It merely shows that the tenancy was not a mere tenancy at will or -annual tenancy. We agree with the learned Subordinate Judge that the defendants have failed to make out their case and we must dismiss the cross-objections with costs.
13. The order will then be that the appeal succeeds with costs and the cross-objections are dismissed with costs. There will be a decree for possession and Tent Rs. 300 for six years, and costs throughout. Mesne profits from the date of the suit to be determined under Order XX, Rule 12.