1. This appeal arises out of a suit for possession of a demised land. The land is a piece of site measuring sixty by twenty-one cubits in Survey No. 1, Falni No. 1, of Rahatgar and it appears to have been in the occupation of one Balkrishna Bhide who had built a house on it. The appellant purchased it from him in 1894. The site admittedly belongs to the plaintiff and Bhide used to pay him Rs. 2-8-0 per year for swamitwa, and after it was sold to the appellant the appellant continued to pay that amount as rent or swamitwa to the plaintiff. On February 22, 1904, the appellant passed a rent note in favour of Vasudeo, who was the manager of the plaintiff's property for a period of thirty-five years. By that rent note the appellant agreed to pay Rs. 2-8-0 every year, and the relevant portion in it runs thus :
You say that you will extend the period of the lease after the expiry of the present time limit. If it suits me I will continue ; otherwise, I will go away. In that case you should obtain a proper punch valuation of the structures on the land and pay the same to me or to my heirs and take possession of thekan together with all trees, structures etc. standing thereon.
2. The period of the lease expired on February 22, 1939. The plaintiff then gave a notice to the appellant on November 20, 1939, in which he alleged that as they did not agree to the terms of the continuation of the lease, he did not wish to continue the land with the appellant and wanted him to vacate. The appellant gave a reply stating that the contents of the notice were perverse and not true and that the plaintiff had no right to demand possession of the site. The plaintiff, therefore, filed this suit to recover possession on payment of the valuation of the structures as determined by panchas. The defendant claimed that the plaintiff had no right to demand possession of the site, that he had purchased the site and the structures thereon from Bhide who was a permanent tenant, that the rent note passed by him in 1904 did not affect his right of permanent tenancy, and that when the period of the lease was about to expire he did intimate to the plaintiff that he was prepared to continue the possession of the site and pass a rent note for a permanent lease. Both the Courts below held that Bhide was not a permanent tenant and that in any case the rent note passed by the appellant negatived it and that under the terms of the rent note the appellant could not resist the plaintiff's claim for possession. A suitable decree for the determination of the value of the structures and the eviction of the appellant on the plaintiff's paying that amount was passed.
3. It is urged in this Court that Bhide must have been a permanent tenant as he had constructed buildings on the site and was paying only the ground Tent of Rs. 2-8-0 per month to the landlord. It is also pointed out that in the sale deed which Bhide passed in favour of the appellant he stated that the appellant was to enjoy the property from generation to generation and that he could not have used such terms unless he had a permanent interest in the site of the buildings. It may be that Bhide was under the impression that he would never be evicted by his landlord. But there is no evidence to show that he was a permanent tenant or that his landlord had acknowledged him as such. It is true that in the rent note passed by the appellant there is a reference to the sale deed, and it is argued from this that the plaintiff or the manager of his estate who obtained the rent notei must have seen thecontents of the sale deed and thereby tacitly accepted its contents and conceded that the right purchased by the appellant was hereditary and conti-nuable from generation to generation. There is nothing in the rent note to suggest that Bhide's tenancy was permanent. Nor did the appellant who passed the rent note claim such right. Otherwise he would not have passed a rent note for a fixed period of thirty-five years. It must, therefore, be presumed that the appellant was not then in a position to assert that Bhide's tenancy was permanent, and in order to avoid litigation he conceded that it was not permanent and passed a rent note for a limited period. Whatever be the nature of Bhide's tenancy, it was given up by the appellant when he agreed to accept a fresh lease for a limited period. The appellant's contention that he has purchased from Bhide rights of permanent tenancy and, therefore, is not liable to eviction must fail.
4. It is next argued that even on the terms of the rent note passed by the appellant in 1904 he must be deemed to be a permanent tenant or at least a tenant for life. A good many rulings were cited during the arguments, but each case depended on the interpretation of the peculiar language of the clause for renewal of the tenancy contained in it. The appellant's rent note (exhibit 13) expressly fixed the period of tenancy as thirty-five years. It was passed by the appellant and no corresponding lease was executed by the landlord. The appellant says in his rent note that he would make vahiwat of the land for thirty-five years and continue to pay Rs. 2-8-0 only for swamitwa as he had been doing till then. Then comes the important clause as regards the continuation of the tenancy. It appears from the language used that the landlord was prepared to extend the period of the tenancy after the expiry of thirty-five years. But the appellant was not then prepared to say whether he would accept that offer or not. To the offer made by the landlord he has stated in the rent note : ' As to that I will continue if it suits me ; otherwise I shall go away '. The Marathi expression corresponding to ' if it suits me ' is ' amche jamalyas '. Mr. Abhyankar contends that this expression means 'if we agree'. The expression is capable of both meanings, and the lower Courts have taken it to mean ' if I find that convenient '. It must, however, be noted that the landlord's offer which appears in the sentence preceding this expression was vague and suggested that the terms on which the period was to be extended were not specified. It may be presumed that perhaps it was intended that the extension of the period was to be on the same terms and conditions as before, but this has not been clearly expressed.
5. In Manilal v. Nandlal (1919) 22 Bom. L.R. 133 certain lands were demised for a period of seven years in 1894 and the lease further provided that if the lessee wished to continue the lease he could take it on lease from the lessor on the same conditions. The lease expired in 1901 but nothing was done to renew it; and the lessee remained in possession. He, was sued in ejectment, and he contended that he was a permanent tenant of the lands. But it was held that whatever rights the lessee had between 1901 and 1908 to ask for specific performance of the agreement to extend the lease for another seven years, those rights came to an end after 1908, and that he continued thereafter as an annual tenant. In that case the renewal clause specifically stated that the lease was to be continued on the same conditions if the lessee so wished, and it was held that it was the duty of the lessee to have the period of the lease continued before the original lease terminated.
6. This case was distinguished in Indian Cotton Co. v. Raghunath (1930) 33 Bom. L.R. 111 There the lease was for a period of five years and it provided that if after the expiry of that period the lessee required the land the lessor should receive the same rent and go on giving the land to the lessee. It was held that the lease in suit was a lease for five years with an agreement that the lessor would grant as many leases at the same rent should the tenant require the land, and that such an agreement, if capable of being enforced, would create an interest in the land which would enure during the lifetime of the lessee. But there the lease was passed by the lessor and he agreed to go on renewing the lease from time to time, whereas, as pointed out there, the lease in Manilal v. Nandlal required the lessee to take the land on lease if he so wished after the expiry of its period.
7. In Abdulrahim v. Sarafalli : (1928)30BOMLR1596 , the lease which was for a period of twenty-five years was passed by the lessor and he stated in it, ' after the expiration of the period when you will vacate the field of your own will, on that day we shall take the same into our possession. After the period of the karar we shall go on taking the said rent as long as the field shall remain in your possession '. This was interpreted to mean that the lease was not intended to expire at the end of twenty-five years, but the lessee was to remain in possession so long as he pleased and so long as he paid the rent, and it was held that the lease was to enure during the lifetime of the lessee. The wording of the lease in Bai Sona v. Bai Hiragavri : (1926)28BOMLR552 , was similar, but there the tenancy was held to be permanent. The decision in that case, however, is not approved of in the recent case of Donkangouda Ramchandragouda v. Revanshiddappa Shivlingappa (1942) 45 Bom. L.R. 194. In this last case the rent note was passed by the tenant in respect of a house, but no period was fixed, and the rent note said ' I shall go on paying the amount of rent. You should not evict me from possession of the house so long as you receive from me the said amount of rent.' On a construction of the lease it was held that the tenancy created was not permanent but only one to enure during the lifetime of the tenant.
8. The rent note in the present case, however, first limits the period of the tenancy to thirty-five years and, although the lessor offered to continue the tenancy after that period, the appellant did not immediately make up his mind and accept the offer. He postponed his decision and stated that he would decide whether to continue on the land or not when the period expired. Assuming that the offer remained open, still it was his duty to accept it before the termination of the tenancy. It is argued on his behalf that the tenancy did not really terminate at the end of thirty-five years, since it gave an option to the appellant to continue on the land if he so wished. But that is not the agreement in the rent note. It definitely says that the tenantwas to make vahiwat of the land for a period of thirty-five years and it was to be settled whether it was to be continued thereafter. If the clause about the extension of the period is read with the context, it seems to me that the expression amche jamatlyas might more properly be construed as meaning. ' if the terms agreed', because the sentence preceding it does not make it clear that the tenancy was to be continued on the same terms or for the same period as before. Hence the appellant was not sure whether the terms that might be offered after the period of the tenancy would be acceptable to him or not. Assuming that it was understood that the tenancy was to be continued on the same terms as before, still, as the appellant failed to accept the offer then and there, it was his duty to accept it before the period of the tenancy was over. These terms are more akin to the terms of the lease which were considered in Manilal v. Nandlal. Even in reply to the plaintiff's notice the appellant did not say that he wished to continue, and was prepared to accept the offer of the extension of the period of the tenancy which expired in 1939. He claimed independently of the rent note that he was entitled to remain on the land as he had the right to do so since before the swamitva deed. In the written statement, however, he accepted the position created by the rent note and stated that when the period of lease was about to expire he had intimated to the plaintiff that he was prepared to continue the possession of the suit site and to pass a fresh rent note for a permanent lease. This allegation has not been proved. In these circumstances the tenancy became annual after the expiry of the period of thirty-five years and the appellant was liable to be evicted on the terms mentioned in the rent note.
9. It is contended that the decretal order is not in accordance with the terms of the rent note, since the burden of choosing the panchas for the valuation has been thrown on the appellant. I think the decretal order is more favourable to the appellant as it has given him the first choice of appointing the panchas. The rent note does not say who should appoint the panchas or what is to be done if the parties do not agree upon the selection of panchas. The trial Court, therefore, had to make suitable arrangements for the selection of panchas in case of disagreement. The plaintiff was, therefore, given the choice of selection, and if the parties do not agree, then the decretal order has provided for valuation through Court.
10. As regards the future mesne profits it is evident that they are to be calculated from the day on which the plaintiff pays into Court the amount fixed after the valuation of the 'structures. There is, therefore, nothing to be found fault with in the decree.
11. The appeal is dismissed with costs.