Norman Macleod, Kt., C.J.
1. The plaintiff in this case sued for possession of the plaint land from the defendant and for Rs. 16 as rent for the season of Samvat 1972, alleging that the defendant was cultivating the plaint land, that he had passed a rent note for the same for Samvat 1939, and that he was holding over on the expiration of that year. The defendant in his written statement pleaded that his ancestors were permanent tenants on the land and so he was a permanent tenant. That the suit was also bad as plaintiff had given no notice to determine the alleged tenancy.
2. The trial Court found that the permanent tenancy set up by the defendant was not proved. But the plaintiffs claim for possession was rejected on the ground that it was bad for want of notice. Accordingly a decree was passed for the amount of rent only. In appeal the learned appellate Judge also held that the defendant had not proved his permanent tenancy. But he differed from the decision of the lower Court on the question of notice and held that no notice to quit was necessary as the tenant had disclaimed the landlord's title. Therefore the plaintiff was decreed possession in addition to the amount decreed in the lower Court.
3. In appeal the first question that arises is whether, assuming that the defendant was a yearly tenant, notice was necessary on facts of the case, and that depends entirely on the question whether the defendant has disclaimed the landlord's title and therefore disentitled himself from demanding notice to quit. The question seems to have been set at rest by the decision in Vithu v. Dhondi I.L.R (1890) Bom. 407. There it was held that 'the plea of permanent tenancy set up for the first time in the defendant's written statement in the present case was not such a disclaimer of the landlord's title as to dispense with proof of legal notice to quit.' The respondent in that case relied upon the decision in Baba v. Vishvanath Joshi I.L.R. (1883) Bom. 228. There it was held that where a tenant set up a claim to be a Mirasdar, that was a sufficient disclaimer of the landlord's title. The judgment was based on the decision of an English case- Vivian v. Moat (1881) 16 Ch. D. 730. But it has been held by the Privy Council in Maharaja of Jeypore v. Rukmini I.L.R. (1919) Mad. 589. that the doctrine of Vivian v. Moat (1881) 16 Ch. D. 730 does not apply to Indian tenures such as were before the Courts. Finally in Ochhaolal v. Gopal I.L.R. (1007) Bom. 78 the same question was raised. There the tenant had claimed to be a permanent tenant and the argument was that the setting up of a permanent tenancy was a sufficient disclaimer of the land-' lord's title and renders notice unnecessary. It was held by Sir Lawrence Jenkins that there was no repudiation of the relation of landlord and tenant. It seems clear that the relationship of landlord and tenant still continues although the tenant may set up a different kind of tenure from the one on which the plaintiff landlord relies. It would be a different matter if a tenant sets up a claim to be the owner of the land and disputes the right of the plaintiff to be considered as a landlord on any kind of tenure. Therefore it seems to me that in this case notice was necessary. Therefore the trial Court was right in rejecting the plaintiff's claim for possession apart entirely from the question whether the defendant wan or was not a permanent tenant. That question was not necessary for a decision in the case. Evidence was gone into on that issue and we have the decision of both the Courts on the issue It may be desirable for us to express an opinion as to whether those findings are correct. The learned appellate Judge does not appear to me to have interpreted correctly Section 83 of the Land Revenue Code. He says:-'It might be that he and his forefathers may be in cultivation of this plot of land, but long possession by itself cannot create an interest in permanency. In this instance there is no grant from the plaintiff or his ancestors in favour of the defendant or his ancestors conferring a right to hold the land in perpetuity. The defendant or his ancestors had not done any acts which are lasting and improving the land.' Now there is no need for a person who sets up a permanent tenancy to rely upon a grant. If that was necessary, then there would be no need for Section 83, the 2nd para of which expressly provides that where, by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, it shall, against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him unless there is evidence of its period or its intended duration agreed upon between the landlord and the tenant or any usage of the locality as to duration of such tenancy. So in this case we have all the facts before us which would point to establish the defendants' right to be considered permanent tenants, that is to say, he and his ancestors had cultivated this land as far back as memory could go and there was no evidence as to when they commenced to cultivate the land. The case of Raghunath v. Lakshuman (1899) Bom. L. R. 93 is a very similar case. There it was held that if the documents in the case were excluded, then there could be no doubt that the facts were such as to attract the presumption mentioned in Section 83 of the Land Revenue Code. Here also, apart from any documents, all the facts are such as to attract that presumption. So we have got to consider whether there is anything in the documents which rebuts the presumption. The only document which the plaintiff relied upon is the rent note executed by the defendant for the season 1939. The plaintiff relied upon the words of the rent note and especially the final words on which the defendant agreed to clear out and deliver the land in the possession of the plaintiff at the end of the season of 1939. There was a very similar document in Raghwnath v. Lakshuman. '' There the document was: 'I have got the Mahta (contract for a lump sum) fixed for the current year. As soon as the period was over I will make over the plots to the Sarkar,' and Sir Lawrence Jenkins said with regard to that document: 'No doubt the stipulation taken by itself strongly favours the plaintiff's contention, and but for the authority of the case of Gangaji v. Sakharam (1889) P. J. 156 I should have felt greater difficulty in dealing with the argument founded by the Advocate General on this clause. That case...decides that questions of this class cannot be determined by a clause such as the present, but that the matter must be judged in the light of the actual facts. There the determining point was the fact that the tenant still continued to hold and that is what has happened here.' So also that has happened in this case. After 1882 the defendant continued to occupy the land and pay the same rent until the suit was filed. The rent mentioned in the rent-note is Rs. 45. But that appears to be explained by the plaintiff in his plaint where he claims Rs. 16 out of the Rs. 45 and says the balance Rs. 29 was paid to Government for assessment. In the absence of any evidence on the point and there being nothing to the contrary in the defendant's written statement, I think I must take it as admitted that the defendant paid the assessment Rs. 29 and paid Rs. 16 to the landlord. There is, therefore, nothing in the case to rebut the presumption which arises from the antiquity of the defendant's tenancy. The only thing that can be urged against him is that after 1882 he alleged that there was an oral agreement between him and the landlord to the effect that he should be a permanent tenant and in the Record of Rights in which he appears as a permanent tenant he is mentioned as a permanent tenant by oral contract. The defendant has failed to prove any such oral contract, but it does not follow that we cannot presume permanent tenancy from the rest of the facts of the case. It often happens that a party who has got a perfectly good case, to make it stronger, alleges something which he thinks will help him, and fails to prove that particular circumstance. The proper course is to strike out all evidence as regards oral tenancy and the oral agreement alleged to have been made after 1882, and then to see whether what remains is sufficient to prove the defendant's case. And in my opinion the defendant has proved the antiquity of his tenancy, and if there is nothing within the provisions of the second para of Section 83 which will prevent the Court from coming to the conclusion that permanent tenancy can be presumed, then the defendant is entitled to succeed. I may mention that the learned Judge in the trial Court has interpreted the second para of Section 83 in entirely the opposite way in which it ought to have been interpreted. He says: 'There is no satisfactory evidence of the origin or commencement of the tenancy forthcoming, but then this is not the only thing necessary for presuming a permanent tenancy, for, presuming that the duration of the tenancy is co-extensive with the duration of the tenure of the landlord coupled with the antiquity, two other conditions should be satisfied, viz., there is no evidence of the period of its intended duration, if any agreed upon, between the landlord and the tenant or those under whom they respectively claim title and there is no usage of the locality as to duration of such tenancy. Both these conditions are wanting in this case'. But those are not the conditions which must be established before a permanent tenancy is presumed. They have to be established by the party denying the permanent tenancy in order to rebut the presumption which arises from the antiquity of the tenancy.
4. In my opinion, therefore, the appeal must be allowed and the decree of the lower Court will be set aside and there will be a decree for the plaintiff for Rs. 16.
5. Defendant will be entitled to his costs throughout.
6. The cross-objections are dismissed with costs.
7. I agree that the appeal should be allowed. On the point of necessity of notice, the judgment of the Privy Council in Maharaja of Jeypore v. Rukmini I.L.R. (1919) Mad. 689, P.C. is conclusive on the points that a mere claim to be a permanent tenant is not a denial of the landlord's title such as to work a forfeiture, and that the doctrine of English law regarding the ejection of an annual tenant in Vivian v. Moat (1881) 16 Ch. D. 730 is not applicable to Indian tenures such as the one in that case. As explained in the judgment of the Privy Council, the denial or disclaimer does not work a forfeiture in that case, but is construed as rendering a notice to quit unnecessary. This could not apply possibly in the present case; for under Section 111, Clause (h), of the Transfer of Property Act in order to determine a lease there must be a notice duly given by one party to the other, and secondly in the case of an agricultural lease such as the present, Section 84 of the Land Revenue Code lays down that in the absence of any special agreement in writing to the contrary an annual tenancy shall require for its termination a notice given in writing in a certain form. Therefore, even where there has been a disclaimer of the landlord's title, such notice is necessary to determine an annual agricultural tenancy in this Presidency. This is already laid down in the cases of Vithu v. Dhondi I.L.R. 39 (1890) Bom. 407 and Ochhavlal v. Gopal I.L.R.(1907) Bom. 78 Consequently the lower appellate Court was clearly wrong in my opinion in holding that notice was not necessary.
8. On the second point I think it desirable that this litigation should not end without the main point of dispute between the plaintiff and the defendant being decided. In Raghunath v Lakshuman (1899) 2 Bom. L R. 93 it has been held that a question of this kind, whether the defendant is a permanent or an yearly tenant, is one of law, depending on the legal inferences from the facts which are found and that this Court in second appeal can therefore come to its own conclusion in the matter. I agree with the learned Chief Justice that, apart from the rent note of 1882, the defendant is entitled to a presumption in his favour under the second para of Section S3 of the Land Revenue Code. The rent note is no doubt an admission by the defendant which might in certain circumstances amount to satisfactory evidence of the intended duration of the tenancy within the meaning of the paragraph. But it is an admission that is not conclusive, and it has already been laid down by this Court in Raghunath v. Lakshuman and in the previous case there referred to that in judging the weight to be attached to such an admission the main test is what has actually happened and in particular whether the tenant still continues to hold the land in spite of a document by which he admits he is an annual tenant. In the present case the facts that the defendant has continued to hold the land on the same rent and that he 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 circumstances to hold that this document, Exhibit 18, was a deliberate admission by the defendant that he was not entitled to continue to hold the land in the way it bad been held from the time of his ancestors. It frequently happens that a document of this kind is signed without any real comprehension of its exact legal effect, and in fact it may never have been read by or to the defendant. I think, therefore that the two lower Courts gave excessive weight to this particular admission, and that the presumption arising in the defendant's favour under Section 83 is not displaced by it.
9. I hold, therefore, that there is clear justification for our interfering with the finding of fact arrived at by the two lower Courts and concur in the order allowing the appeal.