1. These are second appeals arising out of suits by landlords against the tenants. Second AppealsNos. 335 and 436 of 1929 are appeals by the tenants who are held not to be permanent tenants under s.83 of the Bombay Land Revenue Code. In all the other appeals the tenants are held to be permanent tenants on the strength of the presumption arising under Section 83 of the Bombay Land Revenue Code.
2. Several points were urged in the appeals filed by the landlords. The first point urged in the lower Court was that the presumption under Section 93 would not arise if the tenancy began after the commencement of the grant in favour of the plaintiff's ancestor. That point is covered by the decisions in Ramchandra Narayan Mantri v.Anant I.L.R. (183) Bom. 433 and Shripadbhat v. Eama (1926) 29 Bom. L.R. 274 The point was not seriously pressed before us.
3. The second point is whether the presumption under Section 83 would arise when it is shown by the landlord that the tenancy commenced within a period of 150 years between 1700 and 1850. The period of 150 years is too long and indefinite to constitute satisfactory evidence of the commencement of the tenancy within the meaning of Section 83 of the Bombay Land Revenue Code according to the decisions in Shripadbhat v. Rama and Janardan v.Lakshman (1930) 33 Bom. L.R. 551
4. The next point urged is that the tenants passed a rent-note in which they agreed to vacate the lands at the end of any agricultural year when called upon by the inamdars to do so. It has been held in several cases that in the case of a tenancy for a fixed period, an agreement to vacate after the expiration of the fixed period is not sufficient to displace the advantage which the tenant has obtained by his long holding, if he continues in possession for many years after he has signed the kabulayat. The point is covered by the decisions in Rama v. AbdulRahim : AIR1921Bom395 , Raghunath v. Lakshuman(1899) 2 Bom. L.R. 93 and Gangaji Lakshman Juvekar v. SakharamViahnubhat (1889) P.J. 156 As observed by Sir Lawrence Jenkins in Raghunath's case, questions of this class cannot be determined by a clause such as the present, but the matter must be judged in the light of actual facts. In Vijbhukhandas v.Ishvardas : (1923)25BOMLR431 the presumption was held not to arise because it was proved that the tenants could not be in possession in the year 1854 as their names did not appear in the rent-roll or number Kharda prepared by the Collector in the year 1855, and there were special circumstances under which the signing of the kabulayat destroyed the presumption, but the principle of the previous rulings has been recognised in that case. The fact of signing such a kabulayat in the midst of a long holding at the same rent does not necessarily prevent the tenant from succeeding. The real test in such cases is whether the tenant has continued to occupy the land as before even after the execution of the kabulayat. Reliance was placed on Section 116 of the Indian Evidence Act, but it has no application to the present case as the defendants do not deny the title of the landlord.
5. The last point urged is that the presumption under Section 83 of the Bombay Land Revenue Code cannot be raised in the case of watan lands according to the decision of the Privy Council in Madhavrao Waman Saundalgekar v. Raghunath VenkateshDeshpande and the decision in Vishnu Ramchandra v.Tukaram Ganu I.L.R. (1924) Bom. 526 : 27 Bom. L.B. 449 Watan land is not explicitly excluded from the operation of Section 83 of the Bombay Land Revenue Code. The case in Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande turns upon the question whether a tenant can acquire a title by adverse possession to a permanent tenancy. The permanent tenancy in that case came into existence in 1853 after Regulation 16 of 1827 came into force. In Vishnu Ram-chandra v. Tuharam Ganv, it was held by the lower Court that the presumption of permanent tenancy in respect of the watan land arose under Section 83 of the Bombay Land Revenue Code, but it was held that the tenant could not acquire title to a fixity of rent by adverse possession,
6. The point arising for decision in this case is not covered by authority, but, so far as the Satara District is concerned, to which Regulation 16 of 1827 was made applicable in 1863, it was held in Govind v.Vithal (1930) 33 Bom. L.R. 210 that the tenants were entitled to rely on the presumption under Section 83 of the Bombay Land Revenue Code in respect of watan land, and could not be ejected from the land on the ground that the Regulation was applied to the Satara District in 1863 and the tenants were in possession of the watan lands long prior to 1863.
7. It is contended on behalf of the appellant that watan lands became inalienable after the passing of Regulation 16 of 1827, and the onus is on the tenants to show that the commencement of the tenancy was before 1827. Under Section 83 of the Bombay Land Revenue Code the onus is on the landlord to show the commencement of the tenancy, and on his failure to prove the commencement of the tenancy, a presumption arises, in the absence of any proof of intended duration by agreement or usage, that the tenancy is co-extensive with the duration of the tenure of the landlord or those who derive title under him. Having regard to the fact that Section 83 of the Bombay Land Revenue Code does not exclude watan land from its operation, and also to the fact that the onus is on the landlord to show the commencement of the tenancy, we must presume that the tenancy of the several defendants was in existence even prior to 1827. The tenancy of the defendants commenced somewhere between the years 1700 and 1850. That being the case, it must be presumed in the absence of any evidence to the contrary that the tenancy commenced at a time when the watan lands were alienable under the law prevailing before Regulation 16 of 1827 came into force, and therefore, the statutory presumption of permanent tenancy arises under Section 93 of the Bombay Land Revenue Code.
8. We must, therefore, dismiss the appeals of the landlord with costs.
9. With regard to Appeals Nos. 335 and 436 of 1929 filed by the tenants, it appears from the facts found by the lower Court that the defendants were out of possession for some time and other tenants were placed in the land, and subsequently they passed rent-notes in which they recognised the title of theirland-third to evict them at any time, We think, therefore, that in the cases of those defendants a presumption cannot arise under Section 83 of the Bombay Land Revenue Code. Those appeals must also be dismissed with costs.
1. The point in all the appeals is whether the original defendants were the permanent tenants of the plaintiff, or not. Whether they are so is a question which depends on the history of the holdings. In reality it goes back to that of their date and origin. Where we find the date is so far distant in time that the commencement of the tenancy cannot be ascertained, the presumption under Section 83 of the Bombay Land Revenue Code becomes applicable, and they are entitled to be held to be permanent tenants. Where, however, the origin of the tenancy is traceable, the presumption does not apply, and the nature of the tenancy depends on its character and origin. There are, however, cases in which the tenancy has the mark of an immemorial origin and yet the landlord has managed to secure a rent-note for a year, though the relations as to the possession and rent between the parties have continued undisturbed to the date of the suit. The cases with which we have to deal are of this character. The findings of fact, where the appellants have failed are that the tenancies can be traced as far back as 1850, but the records do not enable us to go further into the past than that point, although the grant of the village was made in 1700, It appears that in 1888 to 1891 there was partition between the inamdars, and in this connection some of the tenants were induced to execute rent-notes for a year, but the evidence is that the former relations continued in spite of these rent-notes.
2. Mr. Jahagirdar has contended that the cases against him can be distinguished, owing to the form of the tenancy, because in the precedents the rent-notes were for a year, whereas here they are tenancies at will, no period being fixed, the terms being ' to such year as you may be willing to continue the land, and in whatever year you call on me to vacate I will do so.' But it does not seem to me that this is a material distinction. The learned Chief Justice's view in Rama v. AbdulRahim : AIR1921Bom395 was that when once the conditions are such as to invite the application of the presumption under Section 83, then in order to rebut it, there must be established the facts mentioned in the second para of the section, being no evidence of the intended duration of the tenancy or of any local usage as to its duration, and it was held that the oral tenancy agreement, which had not disturbed the existing relations in that case, was insufficient to avoid the presumption. A breach in possession would, of course, have been different and has so been held by the Court below in some of these cases.
3. Mr. Jahagirdar's next point was that these are watan 'lands and as such inalienable, and therefore the presumption under Section 83 cannot apply at least from the date of Regulation 16 of 1827, Vide Govindv. Vithal (1930) 22 Bom. L.R. 210 Here the Regulation was applied in 1830, and all we know is that these tenancies began between 1700 and 1850, and there is no ground for assuming that the date was after -1830. We have not been able to find the evidence on which, according to the learned District Judge, it is conceded that the village was waste in 1700. But even if it was so, it would seem to me that the presumption must go back to that point provided the origin is unknown. See Sidhanath v.Chiko : AIR1921Bom454 . For these reasons, I think that the learned District Judge has applied the correct principles to the facts he dealt with.
4. The appeals must, therefore, all be dismissed, those of the plaintiffs because permanent tenancy has been made out, and those of the defendants on the ground that there has been a break during which they have been out of possession, the origin of their present tenancies being the rent-notes of a known date and on conditions which have been put in there.