1. The admitted or proved facts are that the property in dispute appertained to the narva of one Jethabhai who died in 1896-97 leaving two sisters as his heirs. One of them, viz., Bai Raiba, died in 1904 and the other died in 1906. Jethabhai during his life-time had executed a lease on December 28, 1893, in favour of defendants Nos. 1 and 2'a father and defendant No. 3's grandfather. The possession had throughout continued with the family of the defendants. Bai Raiba's son passed a sale-deed in respect of the plaint property in favour of the plaintiff in 1924, and the plaintiff brought the present suit and claimed therein a declaration that the alienation in favour of the defendants' ancestors was void under the Bhagdari and Narvadari Act, and that even if it was not void, it was in the nature of a mortgage, and accounts should be taken and redemption ordered.
2. The Court of first instance held that the suit could not succeed because it was barred by limitation, and as to the nature of the transaction, the Court held that the terms of the lease were clear enough, and that Section 10A of the Dekkhan Agriculturists' Relief Act did not apply.
3. On appeal, the point as to the nature of the transaction seems to have been given up and the contention was confined to the point of limitation. The appellate Court followed the ruling in Chaturbhai v. Motibhai (1922) 34 Bom. L.R. 1315 and held that the suit was barred by limitation. The appeal was, therefore, dismissed by the lower appellate Court.
4. In second appeal the learned advocate for the appellant raised the two points mentioned above, but after some discussion confined himself mainly to the point of limitation.
5. Since the decision in Chaturbhai v. Motibhai mentioned above, their Lordships of the Privy Council had an occasion to consider the point of alienation by a watandar under the Hereditary Offices Act and commented upon the ruling in Radhabai and Bainchandra Konher v. Anantrav Bhagvant Deshpande ILR (1885) 9 Bom. 198, which, amongst other things, is a ruling on the point of adverse possession. Mr. Shah, therefore, contended that, having regard to the ruling of the Privy Council, the position deserved to be reconsidered in spite of the ruling in Chaturbhai v. Motibhai, referred to above.
6. Exactly what Mr. Shah wishes me to do was considered by Mr. Justice Patkar in the case of Guldbbhai v. Bhagvan : AIR1928Bom377 . In that case it was held that there was nothing in the Bhagdari Act to prevent a person from acquiring rights to bhag property by adverse possession against a previous proprietor of a bhag. The ruling in Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande (1923) L.R. 50 I. S 255, 25 Bom. L.R. 1005 was also considered in the judgment, and Mr. Justice Patkar concluded that Bhagdari lands were amenable to adverse possession as any other property. In the face of the above ruling, and having regard to the current of decisions on the point under the Bhagdari Act, I think that the view taken by the lower Courts as to the point of limitation must stand. I, therefore, hold that where a person goes into possession of an unrecognised sub-division of a bhag under a void lease and remains in possession for upwards of twelve years, he acquires a title by prescription to the limited interest under the lease and cannot be evicted during the period of the lease.
7. I do not accept the contention put forth by Mr. Shah that in substance there would be no distinction between an alienation governed by the Bhagdari Act and an alienation governed by the provisions of the Bombay Hereditary Offices Act. Comparing the provisions of the two Acts, I am inclined to hold that the provisions of the Bhagdari Act on the point of alienation are to some extent even more stringent than the provisions of the Hereditary Offices Act. In this connection, one has only got to compare Section 8 of the Bhagdari Act with Section 5 of the Bombay Hereditary Offices Act. Moreover, in the case of watan property the State is really the owner and the property is given to the watandar for service. But the object and intention of the Bhagdari Act is to preserve the tenure known as the bhag tenure and the reason for the enactment as distinguished from its object probably was to protect Government in collecting the revenue.
8. On the whole, the decree of the lower appellate Court is correct The appeal is dismissed with costs.