1. The question raised in this appeal is whether the defendants are permanent tenants of the lands in suit which are described as the Bhavani and the Huleshwar lands. The lower appeal Court has held that they are not. The appeal is not pressed as regards the Bhavani lands, for it has been definitely ascertained that the tenancy began in the year 1851. As to Huleshwar lands, it is contended that the defendants were entitled to the presumption enacted in the second clause of Section 83 of the Bombay Land Revenue Code.
2. The plaintiff's landlord acquired the lands by gift from A the Raja of Satara in 1830. The lands then were Pad or uncultivated and there was no tenant in occupation. The receipts show that the plaintiff's grandfather was in occupation as tenant in 1850; the tenancy must, therefore, have begun between 1830 and 1850. It is now settled by Chikko v. Shidnath (1921) 24 Bom. L.R. 226 that the phrase ' commencement of the tenancy' in Section 83 refers to the time and not to the terms of the tenancy. In Ramchandra v. Anant I.L.R. (1893) 18 Bom. 433 it was held that the presumption in Section 83 might be available to a tenant although it was shown that the tenancy began after the beginning of the landlord's title. However that may be, I agree with the criticisms of Ramchandra v. Anant in the judgment in Rango v. Sidlingappa (1898) P.J. 82 and judgment of Macleod C.J. in Sidhanath v. Chiko : AIR1921Bom454 . But I do not read the judgment of the Chief Justice in Sidhanath v. Chiko as necessitating proof that the tenancy began in a particular year. This same case went on appeal in Chikko v. Sidhnath (1921) 24 Bom. L.R. 226 and the time from which the tenancy was proved to have commenced was found not to be a particular year, but a period 'in or after the year 1805.' I think that the presumption applies only when the time, i.e., rather the date or the period of the commencement of the tenancy is not proved by satisfactory evidence Here the period is proved to have been between 1880 and 1850, and that seems to me to be sufficient to negative the presumption. For, as said in Rango v. Sidlingappa, directly it is shown that the tenancy commenced from a particular period, the ordinary presumption that is now contained in Section 106 of the Transfer of Property Act will have to be drawn. The presumption in this case is not that enacted in Section 83 of the Bombay Land Revenue Code but that enacted in Section 106 of the Transfer of Property Act that the defendants are annual tenants. I think there are no other circumstances from which the presumption of permanent tenancy can be made. Long payment of rent at a fixed rate is not by itself sufficient. There is no evidence that the building of the well was encouraged by the landlord or that the tenant's mortgage was recognised by him. I would, therefore, confirm the decree of the lower appellate Court and dismiss the appeal with costs.
3. I agree generally with the reasoning of my learned brother. The phraseology of the second paragraph of Section 83 is no doubt somewhat vague and there are two opposite views that can be taken of the exact meaning to be put on the word 'commencement.' One that has been placed before us by the appellant is that it necessitates satisfactory evidence that the tenancy commenced at any rate in a particular year. The other view is that it suffices to show a particular period of time beyond which the tenancy certainly did not go. Dealing broadly with the first point of view, I do not think that logically there is good ground for saying that a particular year is the real test contemplated by the Legislature. The primary point of commencement is of course the actual date on which the tenancy began and the fixing of the particular year really means no more than saying that the tenancy commenced at some point of time within twelve months. But why should one be limited to the particular division of time represented by a month? I can see no logical basis for saying that you are justified in taking a number of months, but not justified in taking a number of years as sufficient. Therefore if the learned Chief Justice in Sidhanath v. Chiko : AIR1921Bom454 intended to lay down that it is necessary to show that a tenancy has commenced in a particular year in order to deprive a tenant of the presumption in Section 83, then I respectfully dissent. That would be a very fortuitous test to apply. For instance there might easily be a case where evidence showed that the tenancy must have commenced after the year 1868 and before the year 1871, but did not show that it commenced In the particular year 1869 or 1870. Can it reasonably be said that this defect prevents there being satisfactory evidence of the commencement of the tenancy 1 do not think that this can have been intended by the Legislature In my opinion the presumption operates when owing to the antiquity of the tenancy, you cannot fix on any particular point or period of time as that at or within which the tenancy commenced. Once you get a particular time as in this case you get the years 1830 to 1850 between which the tenancy must have begun, then there is a commencement within a certain period shown which bars the presumption arising.
4. At the same time this treatment of a 'period' as sufficient to satisfy the requirements of Section 83 must of course be applied with reasonable limits. I do not for instance mean to say that it would suffice to show that a tenancy had commenced after the flood. It is not, I think, necessary to define what are 'reasonable limits': it is enough for the purposes of this case to say that the period, 1830 to 1850, is clearly a reasonable one. But if it were necessary, recourse might perhaps be had to the common law rule under which the year 1189 is regarded as the commencement of legal memory, and the presumption, which the evidence might otherwise raise in favour of the existence of a custom, is rebutted by proof that it first existed subsequently to that year: see Halsbury's Laws of England, Vol. 10, Article 441, at p. 233. If a clearer definition is essential or desirable, then the remedy is to amend Section 83 by Legislature, so as to express clearly what is intended.
5. I agree with my learned brother that there is no reason to differ from the view taken in Ramchandra Narayan Mantri v. Anant I.L.R. (1893) 18 Bom. 433 that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not prevent the application of Section 83 because there may be cases where in spite of that the commencement of the tenancy is in obscurity. But when you get a case where the tenancy does not go back into obscurity but is bounded by a definite time or period, then, in my opinion, there is satisfactory evidence of the commencement of the tenancy within the meaning of Section 83, and the presumption in favour of the tenant does not arise.
6. Both the lower Courts have held that apart from the presumption under Section 83, the circumstances of the case do not justify the finding that the respondents are permanent tenants, and there is no error of law shown which would justify us in taking a different view. Accordingly, I agree that the appeal must be dismissed with costs.
7. We vary the decree of the lower Court by adding a direction that the defendants do pay future mesne profits at the rate of Rs. 40 for 1918 and 1919 till date of delivery of possession.
8. The application for stay of execution falls with the appeal and is dismissed with costs.
9. No order as to costs of the cross-objections.