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Parasu Kushappa and ors. Vs. Vishwambhar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 219 and 220 of 1949
Judge
Reported inAIR1952Bom136; (1952)54BOMLR59; ILR1952Bom461
ActsBombay Land Revenue Code, 1879 - Sections 83
AppellantParasu Kushappa and ors.
RespondentVishwambhar and ors.
Appellant AdvocateB.N. Gokhale, Adv., In No. 219 of 1949 and ;K.J. Abhayankar, Adv., In No. 220/49
Respondent AdvocateK.J. Abhayankar and ;B.N. Gokhale, Advs.
Excerpt:
bombay land revenue code (bom. v of 1879), section 83 - antiquity of tenancy--absence of evidence regarding its commencement--rent payable under tenancy not constant--execution of leases for definite periods by tenants--whether presumption as to antiquity of tenancy rebutted.;in a case of antiquated tenancy where there is absence of evidence regarding its commencement in any particular year, the mere fact that the rent in respect of it did not remain constant and that as many as four leases were executed by the tenants in favour of the landlords showing that they would remain in possession for definite durations of time, are not sufficient to rebut the presumption in favour of the antiquity of the tenancy under section 88 of the bombay land revenue code, 1879.;shankarrao dagadujirao v......vyas, j. 1. these two appeals arise out of a decision of the first class subordinate judge of kolhapar in regular suit no. 2/33 of 1939. that suit was filed by the plaintiffs for recovering possession of revision survey no. 208 or sangav, taluka kagal, admeasuring 8 1/2 big as, from the defendants. the contention taken up by the defendants in resisting the suit was that they were permanent tenants. the learned trial judge accepted that contention and dismissed the suit so far as the relief for possession was concerned and passed a decree in the following terms:'plaintiffs should recover rs. 372 for each of the three years preceding suit and rs. 400 a year as rent from the year of suit from defendants 26 to 28 and 33 and 34, who are declared to be permanent tenants. the above sums with.....
Judgment:

Vyas, J.

1. These two appeals arise out of a decision of the first Class Subordinate Judge of Kolhapar in Regular Suit No. 2/33 of 1939. That suit was filed by the plaintiffs for recovering possession of Revision Survey No. 208 or Sangav, Taluka Kagal, admeasuring 8 1/2 big as, from the defendants. The contention taken up by the defendants in resisting the suit was that they were permanent tenants. The learned trial Judge accepted that contention and dismissed the suit so far as the relief for possession was concerned and passed a decree in the following terms:

'Plaintiffs should recover Rs. 372 for each of the three years preceding suit and Rs. 400 a year as rent from the year of suit from defendants 26 to 28 and 33 and 34, who are declared to be permanent tenants. The above sums with proportionate costs should be recovered by the plaintiffs from the above defendants and their estate. The remaining defendants are liable to contribute to the rent to the plaintiff, in proportion to their respective shares and should bear their own costs. The suit as regards other prayers is dismissed with costs '

It would thus be seen from the decree that enhanced rent, i. e., rent at the rate of Rs 400 per year, was decreed in favour of the plaintiffs asagainst defendants 26 to 28, 33 and 34 with effect from the year of the suit.

2. The defendants in the above mentioned suit could be grouped into three sets. Defendants 26 27, 28, 33 and 34 who are the sons of deceased defendant 1 represent the Darekar family. Defendants 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. represent the Kerle family. Defendant 2 originally belonged to the Kerle family but was adopted out in the Dhavan family. Defendants 29 to 32, who are heirs of the deceased defendant 13, and defendants 14 to 25 represent the Patel family. The plaintiffs represent the branch of Vishwam-bhar Pandit alias Dada Maharaj who was one of the two sons of the original acquirer of this inam, namely, Shree Vasudeo Pandit alias Bhau Maharaj. Plaintiffs 1A to 1D are heirs of plaintiff 1 who died during the pendency of the suit. Plaintiffs 2, 3 and 4 are the sons of Shri Vishwambhar Pandit alias Nana Maharaj who was one of the grandsons of Vishwambhar Pandit alias Dada Maharaj. the deceased plaintiff l was a brother of plaintiffs 2, 3 and 4.

3. The suit land, as stated above, is Revision Survey No 208 of Sangav Taluka Kagal, Kolhapur, the said land admeasures 8 1/2 bighas and forms a part of the original parcel of 29 1/2 bighas of land which was granted as inam to the plaintiffs' ancestor Va udeo Pandit alias Bhau Maharaj in the year 1818 by one Vantmurikar Desai as dharmadaya inam. This land (suit land) is known by the name of Satva Mali's KAMat.

4. Now, Mr. Abhyankar for the appellants (original plaintiffs) in First appeal No. 220 of has endeavoured his best to show that the dafendants are not permanent tenants of the suit land by referring us to the various documents such as talebans, receipts, etc. It is contended by him on the basis of these documents that they trace the connection of the defendants' ancestors with the suit land definitely to as far back as 1826, that there is no documentary evidence to show that they were in possession of the said land at any time before 1826, that there is one document to show that one Balappa Sonar was is possession of this land from 1821 to 1825 and that, therefore, the cumulative effect of the documentary evidense in the case would show that the defendants' ancestors must have gone into the occupation of the suit land in the year 1825 26. Now, in order to make these submissions before us Mr. Abhyankar has taken us through the various talebands, e. g. Exs. 148, 164, 165, 166, 168 to 172 dated 1829, 1838-39, 1840-41, 1841-42, 1842-43, 1848-49, 1849-50, 1850-51, 1852-53 and 1856-57 respectively. It is contended by Mr. Abhyankar that in the taleband Ex 148 of the year 1829 the name of Limbaji Darekar is to be found in reference to the suit land. The said Limbaji Darekar was the father of Bapu Darekar whose name occurs in several subsequent talebands. If we turn to the taleband Ex. 149, we find that asum of Rs. 80 was received from Limbaji Darekar as rent. The said amount was given credit for and the balance due from Limbaji became nil, This taleband also shows that Limbaji Darekar was one of the tenants who were cultivating 29 1/2 bigbas of land in the year 1829. It further shows that the land which was being cultivated by Limbaji Darekar was situated in Mouje Saigaou. The next taleband to which our attention was drawn in Ex. 164 of the year 1833-39. It shows the name of Bapu Darekar in respect of a parcel of 8 1/2 bighas of land (a portion of 29 1/2 bighas) which is the suit land. It also shows that Rs. 80 were received from Bapu Darekar in res-pect of that land in that year. The next taleband Ex. 165 of 1840-41 shows again that Rs. 80 were paid by Bapu Darekar in respect of the same parcel of 8 1/2 bighas of land. Taleband Ex. 166 shows similarly that Rs. 80 were paid by Bapu Darekar for the same parcel of 8 1/2 bighas of land in the year 1841-42. The same fact is shown by the talebands Exs. 167, 168, 169, 170, 171 and 172. Thus, on the basis of these talebands which cover a period of nearly thirty years from 1829 to 1857, a submission is made by Mr. Abhyankar that during the said period the suit land was in the possession of Limbaji Darekar, and, after him, his son Bapu Darekar, who used to pay annually a rent of Rs. 80.

5. After dealing with the talebands, Mr. Abhyankar for the appellants drew our attention to the various receipts which would show that the rent for the suit land was paid by Bapu Darekar to the plaintiffs' ancestors in the various years. These receipts are Exs. 238, 235, 237, 243, 233, 244, 229, 247, 330, 234, 239, 241, 232 and 236. They cover a period of nearly twenty years from 1826-27 to 1844-45. They also show that generally the rent for the suit land was paid in instalments of Rs. 20 each by Bapu Parekar to the plaintiffs' ancestor. Only on two or three occasions the rent was paid in instalments of Rs. 40 each. From these receipts a submission is made by Mr. Abhyankar for the original plaintiffs that the defendants' ancestors were in possession of the suit land as far back as the year 1826-27. There being no receipt on the record for the period before 1826-27, he has argued that that would be a circumstance to suggest that the defendants' ancestors were not in possession of the suit land before 1826-27.

6. Having developed his case thus far that there is no documentary evidence to show the connection of defendants' ancestors with a parcel of 8 1/2 bighas of land (suit land being 8 1/2 bighas) at any time before the year 1826 , Mr. Abhyankar has next drawn our attention to the document Ex. 144 dated 1821-22 and has contended from it that one Balappa Sonar was in possession of the suit land on a four years' agreement commencing from the year 1821 onward. The particular entry in this document Ex. 144 to which our attentionis invited is : 'RS. 8600 Mouje Saigon-tenant Balappa Sonar. 20 1/2 agreement for four year out of Rs. 11000.' It is the submission of Mr. Abhyan-kar that the 20 1/2 bighas referred to in this entry included 8 1/2 bighas namely, the suit land. On the basis of this entry, he has contended that the possession of the suit land was not with the defendants' ancestors, but it was with one Balappa Sonar, up to the year 1823, that is, up to the expiry of the four years' agreement which, says Mr. Abhyankar, must have commenced from the year 1821. It is suggested to us that Balappa Sonar must have been a tenant in possession of this land even before the acquisition of this inam from Vantmurikar Desai and that he must have been continued in possession by the plaintiffs' ancestor even after the acquisition of the inam from Vantmurikar : Desai. Thus, relying on this dooument Ex, 144 on one hand and the above mentioned talebands and receipts on the other hand, Mr. Abhyankar has argued before us that the defendants' ancestor must have gone into the possession of the suit land in the year 1825-26, that therefore there is satisfactory evidence before us as to the commencement or origin of the tenancy of the defendants and that accordingly the defendants could not be considered permanent tenants of the land, in other words a presumption under Section 83 of the Bombay Land Revenue Code could not be drawn in favour of the defendants in this case.

7. Proceeding further, Mr. Abhyankar has argued that there is a substantial bulk of another type of documentary evidence in this case which would also rebut a presumption arising under Section 83 of the Bombay Land Revenue Code. It is argued that the very conduct of the defendants' ancestors and defendants themselves would show that they knew that they were not permanent tenants of the suit land. In this connection our attention is invited to the various kabulayata passed at various times by the defendants' ancestors and defendants themselves in favour of the plaintiffs and their ancestors. Those kabulayats are Exs. 95, 153, 10 and 152 dated 1915, 1926, 1927 and 1928 respectively. It is also brought to our notice that not only did the defendants' ancestors and defendants pass these kabulayats from time to time, i. e. between the years 1915 and 1928, in favour of the plaintiffs, but they also submitted themselves to the enhancement of the rent. The rent which was originally Rs. 80 per year according to the various talebands and receipts to which we have already referred was enhanced to Rs. 204 (vide EX. 95) and was still further increased to Rs. 372 (vide Exs. 153, 10 and 152). We are also told that the period of the lease Ex. 95 was eleven years, whereas the period of the remaining three leases Exs. 153, 10 and 152 was one year each. From these circumstances, namely, the execution of as many as four kabulayats by the defendants, the fixed duration of all the four leases (11 yearsin one case and 1 year in remaining cases) and the defendants submitting themselves to the enhancement of rent. Mr. Abhyankar has argued that these would constitute sufficient conduct evidence of the defendants themselves to show that they were not, and they also knew that they were not, permanent tenants of the suit land.

8. Having developed his case in this manner, Mr. Abhyankar invited our attention to certain authorities, and the first case referred to by him was Shankarrao v. Shambhu 43 Bom. L. R. 1. It was a case in which the plaintiff Shankarrao was the inamdar of a certain village of Khed Digar in Shahada taluka in the district of West Khandesh. The inam was granted to him in the year 1798 by the Holkar who was the ruling power in those days. It was confirmed in the year 1843 by the British Government who had in the meantime assumed the rule of the territory concerned. A sanad was issued by the Government of Bombay to the plaintiff's father Dagadujirao in the year 1880. Dagadujirao had succeeded to the inam in 1857 and held it until his death in 1904 at which time the plaintiff was a minor aged eight years. The plaintiff's estate including the inam passed into the management of the Collector of West Khandesh who was appointed the guardian. The Collector's management lasted from 1909 to 1917, in which year the plaintiff attained majority. The village lands which were included in the plaintiffs inam aggregated to 1195 acres. Out of these lands, a parcel admeasuring 770 acres 9 gunthas was in the occupation of the defendant as a tenant. In the suit which was brought by the plaintiff against the defendant for possession it was contended by the defendant that his family had been in possession of some of the lands in suit since ancient times and that they had purchased some other lands from occupants who had themselves been in possession for many years. The plaintiff's case was that the defendant had not been in possession of the lands prior to 1892-93 and that in that year for the first time his name appeared in the lavani patrac. In the khatawanis of the years 1856-57, 1865-66, and 1869-70 the name of the defendant's ancestor did not appear. The plaintiff accordingly contended that the tenancy of the defendant could he said to have begun from 1892 or at the most some time between 1871 and 1892 since in the khatawani of the year 1869-70 the name of his (defendant's) ancestor did not appear. The substance of the plaintiff's contention was that in the above stated circumstances there was satisfactory evidence of the commencement of the defendant's tenancy and therefore the defendant was not entitled to a presumption under Section 83 of the Bombay Land Revenue Code to be drawn in his favour. On the other hand, the position which the defendant took in the suit was that his tenancy had commenced at some indeterminate time between 1871 and 1892, and there being no evidence as to the precise point of time when it had commenced, he was entitled to a presumption under Section 83 of the Bombay Land Revenue Code.

9. In the course of the Privy Council judgment which was delivered by Sir George Rankin, his Lordship observed as under (p. 15):

'Their Lordships think that for the purposes of the present case it is sufficient to note that the particular presumption mentioned in the clause' (herein his Lord-ship was referring to Section 83 of the Bombay Land Revenue Code) ''is not directed to be made save upon these two conditions (among others): first, that there is no satisfactory evidence of the date of the commencement of the tenancy, and, secondly, that this lack is due to the antiquity of the tenancy. They cannot agree that the first condition is excluded by showing that the tenancy had its origin at some date within a period of twenty years which cannot be more precisely ascertained. This is not satisfactory evidence of the date of its commencement, and the view taken in Narayan Ramchandra v. Pandurang Balkrishna, 47 Bom. 4, fails in their Lordships' opinion to give effect to the ordinary meaning of the language of the clause. Again, by a tenancy's antiquity the section does not in their Lordships' opinion intend any reference to remote ages in the past or to 'time immemortal' in the sense of the English law. It is to be given the practical meaning appropriate to its contest and afforded by the limits within which living testimony to past facts is necessarily restricted. As a number of the lands in suit are held under tenancies which are not proved to have been in existence before 1892, their Lordships do not think that the presumption can properly be applied to them notwithstanding that the evidence by no means excludes the possibility of an earlier origin.'

The ratio of this decision is that it is not sufficient for the plaintiff, who contends that the defendant is not his permanent tenant, to show merely that the possession of the defendant's ancestor must have commenced within a certain margin of 10, 15 or 20 years. It is not enough for the plaintiff to show that up to a certain point of time, say X, the possession was definitely not of the defendant's ancestor, that the said possession was traced by evidence earliest to a particular year say Y, that between X and Y there was an interregnum of 15, 20 or 30 years during which there was no data as to who was in possession and that therefore the defendant's ancestor's possession must have begun sometime during the interregnum. In the opinion of their Lordships of the Privy Council that was no satisfactory evidence of the origin of the tenancy and would not be sufficient to rebut the presumption under Section 83 of the Bombay Land Revenue Code which would arise in favour of the defendant by reason of the antiquity of his tenancy. But, says Mr. Abhyankar, there is evidence in this case in the shape of Ex. 144 to show that it was definitely in the year 1825-26 that the defendants' ancestor bad gone into occupation of the suit land and therefore this is not a case in which the defendants could argue successfully that their ancestor's tenancy had commenced at some indeterminate point of time in a span of 10,15 or 20 years, thattherefore it was not possible to say when precisely the tenancy had commenced and that therefore a presumption would arise in their favour under Section 83 of the Bombay Land Revenue Code. It is argued by Mr. Abnyankar that in this case there is definite evidence to show that the defendant's ancestor had gone into possession of the suit land at a definite time, in other words, there is sufficient material to show that the commencement of the tenancy had taken place at a particular time and therefore a presumption under Section 83 of the Bombay Land Revenue Code would not arise in lavour of the defendants.

10. Mr. Abhyankar has next invited our attention to certain observations of Mr. Justice Wadia in Shankarrao v. Shambhu Nathu 43 Bom L. R. 1. in support of his argument that in cases in which permanent tenancy is set up by one party and denied by the other party, evidence of conduct of the parties is relevant in the above mentioned case Mr. Justice Wadia observed as follows (pp. 7, 8) :

'Even however if it were held that the commencement of the tenancies in all these cases had been satisfactory proved, and that the defendants were not entitled to the benefit if the presumption under Section 83 of the Bombay Land Revenue Code it is in my opinion open to the defendants to show that from the conduct of the parties subsequent to 1892 a presumption of permanent tenancy arises.'

Relving on these observations and adverting to the leases exhibits 95, 153, 10 and 152 executed by the defendants in favour of the plaintiffs, it is contended by Mr. Abhyankar that these leases constitute evidence of the conduct of the difendants themselves, which would show that the deffendant knew that they wore not permanent tenants.

11. The next case to which our attention was drawn by Mr. Abhyankar was the case of Nag-appa Balappa v Ramchandra 18 Bom L. R. 225 in which it was held that if the landlord wanted to rebut the presumption of permanent tenancy arising under Section 83 of the Bombay Land Revenue Code he must prove the commencement of the tenants, i.e the year, if not the date and month, is which the tenancy had commenced and that it would not do merely to show that the tenancy might have commenced within a margin of 5, 10 or 20 years. Mr. Abhyankar says that in order to contend that the defendants are not permanent tenants of the suit land, he is not merely relying on showing that their tenancy had commenced within a certain span of 5 10 or 20 years, but submits that he is in a position to contend on the basis of the credit Yadi Ex. 144 and the rent note Ex. 238 that the tenancy of the defendant's ancestor mast have commenced in the year 1825-26, i.e. at a definite point of time, and that therefore the defendants are not entitled to a presumption under Section 83 of the Land Revenue Code in their favour.

The case of Nagappa Balappa v. Ramchandra 48. Bom L. R. 225 was a case in which Ram-chandra and another person had filed a suit against the defendants to recover possession of certain lands situated in Monje Jabapur in the Belgaum District. The defendant's contention was that they were in possession of the lands not as annual tenants but as permanent tenants. The trial Court found that the provision of Section 83 of the Bombay Land Revenue Code, 1879, applied and that the defendants were permanent tenants in respect of two out of the four lands in suit. The plaintiffs succeeded with respect to one of the two remaining lands and gave up their claim with respect to the fourth land. On appeal by the plaintiffs to the District Court the decree of the trial Court was confirmed the plaintiffs appealed to the High Court. In appeal Mr. Justice Sen whose attention was invited to the case of Shankarrao v. Shambhu Nathu 43 Bom L. R. 1 took a view which was apparently not in consonance with the view of the Privy Councill and declined to draw a presumption under Section 83 of the Bombay Land Revenue Code in favour of the defendants (tenants) although on the facts (plaintiffs having only been able to show that the defendants' tenancy may have commenced between 1860 and 1865) such a presumption ought to have been drawn if conformity with the spirit of the observations of their Lordships of the Privy Council was desired. Mr. Justice Sen observed is the course of his judgment (p. 229) :

' . . . It seems to me that the test should be whether the ordinary meaning of the language used is given effect to. If the tenancy be old and if, for instance, a document regarding the commencement of the tenancy shows that is began in the year '1820'. the last digit being torn away or destroyed, it is difficult to see why that should not be regarded as satisfactory evidence of the commencement of the tenancy in the third decade of the 19th century . . .It does not appear to me that their Lordships of the Privy Council intended that the ten-ancy must be proved to have commenced, in every case, in a particular year in order to exclude the presumption under Section 83....

In the present case, it seems to me clear that the tenancy has been traced to 1860. Exh. 189 states that the tenancy has existed 'for the previous 20 or 25 years. That would make 1861 the year of its commencement at the parlies'.'

It would thus seem that in the opinion of Sen J. the words 'for the previous 20 or 25 years' were definite enough and would amount to satisfactory evidence as to the commencement of the tenancy concerned. In other words in Sen J's. view it was not necessary that the landlord should be able to prove that the tenancy had commenced in a particular year in order to contend that the tenants are not entitled to a presumption to be drawn in their favour under Section 83, Bombay Land Revenue Code on account of the antiquity of the tenancy. In the Letters Patent appeal by the defendants against the judgment of Sen J. the view of Sen J. was not accepted by the Divi-sion Bench consisting of Sir Harilal Kania, C. J., and Gajendragadkar J. and it was observed by Gajendragadkar J. in his judgment as follows(p. 234)

'... the question which often arises in such cases is : If the tenant proves the antiquity of his tenancy, is the landlord required to prove the commencement of the tenancy by date, month and year, or, would it be enough if he shows that the tenancy may have commenced within a reasonably short period On a strict construction of the terms of the section itself, it seems to me that the landlord is expected to prove the commencement or the tenancy, and since such commencement unnecessarily mean the year, if not the date and month in which the tenancy commenced, be is not entitled to say that he has led satisfactory evidence of such commencement merely by showing that the tenancy may have commenced within a margin of any five, ten or twenty years Prime facie, the object of the sec-tion seem to be to protect the possession of tenants who show the antiquity of their tenancy and who are able to claim that is by reason of such antiquity that the commencement of their tenancy cannot be proved.'

12. Proceeding further in his judgment and referring to the Privy Council decision of Shan-karroo v. Sambhu Nathu, is Bom. L. R. 1 P. C. Gajendragadkar J. said (p. 237) :

'Their Lordships have clearly indicated that the satisfactory evidence which the landlord is expected to lend to rebut the presumption of permanent tenancy arising in favour of the tenant must relate to the commencement of the tenancy, and as the word 'commencement' clearly indicates the said evidence must have reference to the year, if not the month and date of such commenent I think, therefore, that even on the alternative finding recorded by Sen J. that the tenancy in the case may have commenced between 1860 to 1865 it cannot be held that that is satisfactory evidence of the commencement of the tenancy within the meaning of Section 83, Land Revenue Code. That bring to the Court is entitled to draw the presumption of permanent tenancy in favour of the tenants in this case.'

13. Relying on this authority, it is contended by Mr. Abhiyankar that since in this case there is satisfactory evidence namely, the credit and debit yadi Ext. 144 read with the rent note Ext. 238 to show that the tenancy of the defendants had commenced in a particular year, namely, 1825-26 on the termination of the four year agreement of Balappa Sonar with the original holder Ventmurikar Desai the presumtion under Section 83, Land Revenue Code, should not be drawn in favour of the defendants.

14. The next case to when we were referred by Mr. Abhiyankar was the case of Rama Ran chhod v. Abdul Rahim 22 Bom. L. R. 1214 and the particular observations in the judgment of Fawc-tt J to which our attention was invited were as under (p 12 1) :

' . . . In the present case the facts that the defendant has continued to hold the land on the same rent and that be pays the Government assessment, lend strong support to his contention that he is a permanent tenant; and it would, I think, be very unsafe in these cir-cumatances to hold that this document Ext. 18. was a deliberate admission by the defendant that the he was not entitled to continue to hold the land in the way it had been hold from the time of his ancestors. It frequently happens that a document of this kind is signedwithout any real comprehension of its exact legal effect, and infact it may never have been read by or to the defendant. I think, therefore, that the two lower Courts gave excessive weight to his particular admission and that the presumption arising in the defendant's favour under Section 83 is not displaced by it'

At first sight says Mr. Abhyankar, this decision appears to go in favour of the defendants. But he submits that there is distinction between the present case and the above case on the ground that in the present case as many as four leases as against only one lease in Rama v. Abdul Rahim were executed by the defendants in favour of the plaintiffs and further that this is a case in which the rent has not remained constant as it did in Rama v. Abdul Rahim. In other words, relying on the changes in the rent from Rs. 80 to Rs. 204 per year and then again from Rs. 264 to Rs 372 per year and also relying on the number of leases executed by the defendants in favour of the plaintiffs Mr. Abhyankar has distinguished the case of Rama v. Abdul Rahim from the present case and has submitted a contention before us that the defendants in this case are not permanent tenants.

15. In short, Mr. Abhyankar's contentions may be very briefly summrized as under: 1. The documentary evidence more particularly the credit and debit yadi and the rent note Exs. 144 and 238 respectivly having shown that the tenancy of the defendants ancestor Limbaji Darekar had commenced in 1825-26, there is satisfactory evidence of the commencemnt of the tenance, that the origin of the tenency is not lost in a tenancy and that therefore the pressumption of permanent tenancy should not be drown in favour of the defendants in this case under Section 83, Bombay Land Revenue Code 2. Four leases Exs. 95, 153 10 and 152 passed by the defendants in favour of the plaintiffs showing changes of rent and difinite durations of tenancy are an admission by the defendants that they are not permanent tenants Evidence of leases would constitute conduct evidence against the defendants, and conduct evidence was taken into consideration by their Lordships of the Privy Council in Shankarrao v. Shambu Nathu, 43 Bom L. R. 1

16. On these contentions Mr Abhyankar has argued before us that the defendants are not entitled to be held as permanent tenants of the suit land.

17. Mr. Gokhale for the defendants, on the other hand, has strenously entended that all the docu-mentary evidense--the talebands, the receipts and even the credit and debit yadi Exh. 144--would not amount to satisfactory evidence of the commence-ment of the defeadants' tenancy and that in the circumstances of this case we should hold that the tenancy being ancient or very old, its origin cannot be traced Adopting the observations of Gajendragadkar J. in Nagappa Balappa v. Ram-chandra 48 Bom L. R. 225, Mr. Gokhale has submitted before us that under Section 83, Bombay LandRevenue Code, which deals with agricultural leases, the landlord starts with a presumption in his favour that the tenancy is annual. If a tenant seta up a plea of permanent tenancy, he has got to rebut this initial presumption by showing the antiquity of his tenancy, as a result of which satisfactory evidence about its commencement is not forthcoming. He has also got to show that there is no evidence of the period of the intended duration of his tenancy. If these facts are proved, the initial presumption in favour of the landlord is displaced by a presumption in favour of the tenant that the duration of his tenancy is coextensive with the duration of the tenure of his landlord and of those who derive title under him. At this stage the onus shifts to the landlord, and if ho resists the inference of permanent tenancy being raised in favour of the tenant, he has got to lead satisfactory evidence of the commencement of his tenancy. Thus, in the application of Section 83, the onus of proof shifts from stage to stage. Having made these submissions, Mr. Gokhale has proceeded to argue that the tenancy of the defendants being antiquated and dating back very nearly to the first quarter of the last century, wo should apply the principle of presumitur retro and draw a presumption in favour of the tenants that because of the antiquated tenancy its commencement could not be proved. In this contest, Mr Gokhale has referred us to the following observations of Gajendragadkar J. in Nagappa v. Ramchandra (p. 240) :

'The docrine of presumiturretro is one of general application... As held by the Privy Council in Anangmanjari v. Tripura Soondari 14 Ind. App. 101, 'when the state of possession for a long period of years has been satisfac-torily proved in the absence of evidence to the contrary presumitur retro.' Under Section 83 when the defendant seeks to rebut the initial presumption of annual tenancy arising in favour of the landlord, he leads evidence to show that he has been in possession of the lands as a tenant of the plaintiff or his predecessor for a very long time. If and when he proves the antiquity of his tenancy, he invites the Court to draw an inference in his favour that it is because of that antiquity that the commencement of his tenancy cannot be proved and that the period of his tenancy should, therefore, be regarded as co-extensive with that of the landlord. At this stage the landlord has got to meet that evidence by showing that the tenancy had commenced in a particular year.'

Mr. Gokhale has contended that the defendants have abundantly established the antiquity of their tenancy by showing that it dates as far back as 1826 and are therefore, entitled to invite the Gourt to draw an inference in their favour, that because of that antiquity the origins of their te-nancy cannot be proved and further that the period of their tenancy should be regarded as co-extensive with the tenure of the plaintiffs. Mr. Gokhale's further submission is that the above inferences which arise in favour of the tenants by the application of the principle of presumitur retro are not rebutted by the plaintiffs by proving that the tenancy of the defendants had commenced in a particular year.

18. On the other hand, Mr. Abhyankar's sub-mission is that his clients the plaintiffs, landlords have proved that the tenancy of the defendants had commonced is the year 1825-26. On this point the only document--and be it noted that there is none other--on which Mr. Abhyankar has relied is Ex. 144, the credit and debit yadi of the year 1821. The recital in this yadi to which our attention is particularly invited is in the following words :

'Rs. 86-00 Mouje Saiga on tenant Balappa Sonar. 20 1/2agreement for four years out of Rs. 110.'

From this recital Mr. Abhyankar has advanced an argument before us that the four year agreement of Balappa Sonar with the original holder of the suit land, namely, Vantamurikar Desai, must have begun in the year 1821 and ended is the year 1825, in which year the tenancy of Lim-baji, the ancestor of the defendants, must have commenced. Mr. Gokhale's rejoinder on this point, with which we agree, is that there is nothing in the document Ex. 114 to show or suggest that the agreement of Balappa Sonar with the original holder Vantamurikar Desai had commtneed in the year 1821. It is argued by Mr. Gokhale, and we accept that argument, that there is nothing in the document Ex. 144 to show that the period of Balappa's agreement with Vantamurikar Dosai did not expire in the year 1821 or that 1821 was not the last year of the four year agreement between Balappa and Vantamurikar. As the document stands, the agreement of Balappa with the original holder might have begun in the year 1818 and ended in the year 1821, or it might have commenced in the year 1819 and expired in the year 1822 and so on. We are dealing in this case with very old times going back to hundred and twenty-five years ago, and we cannot overlook the probability that the agreement of Balappa with the original holder might have even expired in the year 1821. In that case, there would be a margin of four to five years between the expiry of the agreement of Balappa with the original holder and the date of the earliest document, namely, the rent note Rs. 238, tracing the connection of the defendants' ancestor with the suit land. As soon as there arises a margin of five years or so during which on account of an antiquity we are not in a position to determine who was in possession, the principle laid down by the Privy Council in Shankarrao v. Shambhu Nathu, 43 Bom. L. R. 1., would come into operation and the Court would hold that there is no satisfactory evidence to show that the tenancy of the defendants had commenced in a particular year, let alone the month and the date. Such being the position emerging from a consideration of credit and debit yadi Exh. 144, the only document or which Mr. Abhyankar relies for submitting that the plaintiffs have shown the commencement of the defendants' tenancy and have thereby rebutted the preaumption arising out of theprinciple of presumitur retro, it is clear that the said presumption is not rebutted and a presumption in favour of the defendants must be drawn under Section 83, Bombay Land Revenue Code.

19. Mr Gokhale has next proceeded to deal with the leases Exs. 95, 153, 10 and 152 which, according to Mr, Abhyankar, amount to conduct evidence against the defendants and are tantamount to admissions by the defendants that they are not permanent tenants. Mr. Abhyankar has advanced a threefold argument on the basis of these leases:

1. That the rent which was payable by the tenants, i. e., the defendants, to the plaintiffs, i. e., the landlords, did not remain constant but changed from time to time. It changed at least on two occasions, i. e., it changed from Rs. 80 per year to Rs. 204 per year and then again to RS. 372 per year. The want of constancy in the rent, says Mr. Abhyankar, is a circumstance against the alleged permanent tenancy of the defendants and would lead to an inference that they are not permanent tenants.

2. That on each occasion, i. e., in 1915, 1926, 1927 and 1928, the defendants agreed to remain in possession for a definite duration, 11 years in one case and only 1 year in each of the remaining three cases:

And

3. That each time the defendants agreed to vacate possession of the land on termination of the duration of the lease.

20. From these circumstances an argument is advanced by Mr. Abhyankar that the defendants themselves knew that they were not permanent tenants of the suit land.

21. While commenting on this argument of Mr. Abhyankar, Mr. Gokhale has first dealt with the point of want of constancy in the rent. It is argued by Mr. Gokhale that the essential feature of permanent tenancy is the fixity of tenure, and not the fixity of rent. It is argued that this would appear from the very expression 'permanent tenancy', Decision in Shankarrao v. Sham-bhu Nathu 43 Bom. C. R. 1., is referred to, in which it was held that from Section 83, Bombay Land Revenue Code, 1879, it appeared that a right on the part of the landlord to enhance a rent payable was not unknown in the Province of Bombay It is contended that even in the case of a permanent tenancy, rent is liable to change according as the assessment changes. If the land-lord has to pay more to Government by way of assessment, it is only natural, says Mr. Gokhale, that the rent payable even by permanent tenant to him may be increased. In our opinion, this submission of Mr. Gokhale gains support, firstly, from the decision in Shankarrao Dagadujirao V. Shambhu Nathu, and secondly, from Exh. 181 from which it would appear that when the assessment was Rs. 69 which the plaintiffs were liable to pay to Government, the annual rent wasRs. 204, and that when the assessment went up to Rs. 93, the rent which was charged by the plaintiffs was enhanced from Rs. 204 to Rs. 372 per year. It is to be remembered that the document Exh. 181 dates back to the year 1912, in other words it is a fairly old document which would support the contention of Mr. Gokhale that the rent would vary with the assessment which the landlord was liable to pay to Government. Accordingly we accept the submission of Mr. Gokhale that simply because the rent payable by the defendants to the plaintiffs was increased from RS. 80 to Rs. 204 and then again from Rs. 204 to RS. 372, it would not be a circumstance to show that the defendants were not permanent tenants of the suit land.

22. The other argument which Mr. Abhyankar advanced on the basis of the leases Ess. 95, 153, 10 and 152 was that they were for definite dura-tions. The first lease was for a period of eleven years and the remaining three leases were for a period of one year each, and, says Mr. Abhyankar, this would not have been the conduct of the defendants, had they been permanent tenants of the suit land. A permanent tenant, we are told, would not be required to execute an agreement limiting the duration of his tenancy only to a particular period. We have considered this argument of Mr. Abhyankar very carefully, but are of the opinion that in view of the fact that the tenancy in this particular case is very old--the earliest document dating back to very nearly the end of the first quarter of the last century--we attach no importance to the face value of these leases. It has been judicially recognised, as we shall presently point out from the authorities, that the landlord very often takes advantage of the illiteracy of his tenant and takes a rent note or rent notes from him for creating evidence against the permanent tenancy rights of the tenant and the tenant executes the rent notes or leases, very often not knowing the coutents thereof and not suspecting that the permanent tenancy rights would be jeopardized or prejudiced thereby. In this connection we may, with advantage, refer to the very authority to which our attention was invited by Mr. Abhyankar himself, namely the case of Rama v. Abdul Rahim 22 Bom. L. R. 1214, in which it was observed by Fawcett J. (p. 1221):

'It frequently happens that a document of this kind (his Lordship was referring to a lease) is signed without any real comprehension of its exact legal effect, and in fact it may never have been read by or to the defend ant.'

The other authority relevant in this contest, to which our attention is invited by Mr. Gokhale, is thecaseof Dhondu v. Damodar 37 Bom. L. R. 209. It was a case in which as many as four leases were passed in favour of the plaintiffs landlord's and yet it was held that no face value could be attached to those leases or kabulayats in view of the fact that the tenancy of the tenants was very old. The pertinent observations of Broomfield J. in this case were to the following effect (p 214):

'They (His Lordship was referring to the plaintiffs who were the landlords) had control of all the village records. They are Brahmins and probably persons of education and intelligence. On the other hand the tenants are quite illeterate people. It would probably be easy enough to induce them to sigh anything as long as there was no palpable attempt to interfere with the actual enjoyment of their land. I think under the circumstances it would not be reasonable to attach any importance to these recticlas in Exs, 43 44 and 69 (those exhibits were the leases).'

It is to be remembered that just as the landlords in that case were influential people, in the present case also the plaintiffs are the descendants of Vantamurikar Desai, a very influential landlord. Just as in that case the tenants were illiterate people, so also in the case before us the defendants are illiterate people and we are told by Mr. Gokhale, and we think that his submission has a considerable amount of force in it, that the first lease Ex. 05 was passed by the defendants in favour of the plaintiffs because the plaintiffs had represented to the defendants that they would never be disturbed from their possession in case they passed such a lease.

23. the next case on this point to which our attention is invited by Mr. Gokhale is the case of Juvansingiji v. Dola Chhala 27 Bom. L. R. 890. In that case also as many as three leases were executed by the tenants in favour of the landlords and yet it was held by Marten and Fawcett JJ. that they were not sufficient to negative the presumption which would arise in favour of the antiquity of the tenancy under Section 83, Bombay Land Revenue Code.

24. The next result of the examination of the arguments advanced before us by the learned advocates of both parties in the matter of these leasts is that the mere fact that the rent did not remain constant and that as many as four leases were executed by the tenants in favour of the landlords showing that they would remain in possession for definite durations of time are not sufficient to rebut the presumption arising under Section 83 Bombay Land Revenue Code, in views of the antiqueated tenancy and absense of evidence regarding the commencement of the tenancy in any particular year.

25. In the above mentioned circumstatnces, the plaintiffs' appeal No. 220 of 1949 must fail and be dismissed with costs.

26. Mr. Abhyankar has submitted before us that in the event of the Court holding that the defendants are permanent tenants of the suit land, the plaintiffs should be granted a declaration to the effect that the Kerles and the Patils are only sub-sharers in the permanent tenancy rights of the Darekars in respect of the suit land to the extent of 4 annas each, the Darekars' share being to the extent of 8 annas. We are of the opinion that this is a perfectly reasonable relief to ask for and we must grant that relief to the plaintiffs in view of the fact that we have got on record a document Ex. 181 from which it would appear that as far back as the year 1912 Babaji Nathaji Patill, a representative of the Patil family and Subhana Kerle, a representative of the Kerle family, had 4 annas share each and had paid rent to the extent of Rs. 50 12 9 each as against Rs. 101 9 8 paid by Parsu Darekar, a representative of the Darekar family, for his 8 annas share in the permanent tenancy rights over the suit land. In the circumstances, while dismissing Appeal NO 220 of 1949 of the plaintiffs, we grant them the declaration that the Kerles and the Patils are only sub sharers in the permanent tenancy rights of the Darekars in respect of the suit land, their shares being to the extent of 4 annas each whereas the Darekars' share is to the extent of 8 annas.

27. As far as Appeal No. 219 of 1949 is concerned Mr. Gokhale has submitted before us that in the last three lines of the decrial order which read 'The remaining defendants are liable to contribute to the rent to the plaintiff, in proportion to their respective shares and should bear their own costs' we should substitute the word 'Darekars' in place of the word 'plaintiff'. In our opinion, the Court could not have intended to say that the remaining defendants. i. e. Kerles and Patils, should contribute to the rent to the plaintiff. There was no question of the plaintiff having to pay any rent. The rent was to be paid by the tenants, and if the Darekars paid the entire amount of the rent, the Court must doubtless have intended to say that the Kerles and Patils should pay their contributions to the Darekars. In the circumstances. we allow this appeal and direct that for the word plaintiff' in the last but two lines of the order of the First Class Subordinate Judge Kalbaput, the word 'Darekars' should be substituted There will be no order as to costs of this appeal.

28. Order accordingly.


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