1. This is a second appeal against the decision of the Assistant Judge of Thana confirming the decree of the Second Class Subordinate Judge at Roha dismissing the plaintiff's suit. This suit was brought in the character of a 'khot' owning a two anna takshim in the village of Sangi, against the two defendants, one of whom is the descendant of the original purchaser of a 'khoti' holding and the other the descendant of the original vendor. The holding in question was sold by its original owner in 1887, and the plaintiff's case was that this being a breach of the condition of inalienability which attaches to such khoti holdings, he is entitled to recover possession from the purchaser. The main plea in defence was that there exists in this village a custom by which such holdings are alienable, without the consent of the khot being obtained.
2. The other points which have been decided by the Courts below were limitation, and a question of estoppel against the plaintiff, because he has waived his right to resume the land and condoned the breach of the condition as to not transferring, by accepting ' dhara ' and ' faida ' from the purchasers from the original tenants. Both the Courts have found that the custom pleaded by the defendants has been established. They have also found that the suit is within limitation, and that the plaintiff's contention that forfeiture of the holding has been incurred is one which he is-estopped from making because of his conduct since the time of the transfer. The plaintiff's position as to this question of custom is somewhat difficult, for in another suit in which the facts were very similar, and his position was on the other side of the record as defendant, he had pleaded that the custom which is now pleaded against him existed in the village as to the takshim owned by his then opponent. Be that as it may, the learned pleader for the appellant has, in the first place, relied on Palaniappa Chetty v. Deivasikamony Pandora , which formulates the principle that questions of custom such as the one which arises here, are one of mixed law and facts ; also on Section 38 of Act I of 1865, which provides that the rent paid by khoti tenants can be restricted, but that their right to alienate their holdings shall not be affected by that Act, provided that no custom to the contrary existed in that particular village. Mr. Chitale has also referred to the Khoti Act, but that does not, in fact, apply to the Kolaba district, with which we are now concerned. For precedents he has relied on Hari v. Gangadhar (1916) 18 Bom. L.R. 446, which lays down the general rule that in the Kolaba district, khoti tenants cannot transfer their holdings without the khot's permission, and Gopal v. Bhagirathi : AIR1918Bom152 , in which case it was held that the general rule applied to the Kolaba district as a whole, a doubt having arisen as to whether this was so or not. He next elied on Purshottam v. Ganpati (1925) 28 Bom. L.R. 750, which also holds that the presumption in the Kolaba district generally is that the khot's permission is necessary to an alienation by a khoti tenant. This case also discusses. the question, of custom. The head-note says that the onus of proving that there is a custom of unrestricted alienation of such lands is on him who asserts it and Mr. Justice Fawcett has remarked that where the custom is recent in its existence this may be enough to allow of the inference that the custom is ancient in origin. Madgavkar J., on the other hand, held in the sense that what it was necessary to prove, was the existence of the custom at the date of the suit.
3. Next comes the case of Ratilal v. Motital (1924) 27 Bom. L.R. 880, which has been cited to show that in order to succeed on a question of custom those who put forward the contention must show that it is ancient, invariable, and reasonable, in the circumstances of the particular case. The custom here has been discussed by both the Courts. It appears that there were two cases of sales without the permission of the khot in 1887. Mr. Chitale has contended there was only one. He has excluded the sale in the present case, which we do not think can be so excluded. There were otherwise eleven sales in later years until 1916 according to the learned District Judge. There were seventeen sales in fact from 1887 without the permission of the khot. But two of them were after the introduction of the Record of Rights, which seems to have been taken by the Courts below as the limit of enquiry, on the ground that as that record contained a declaration that the custom of transfer without the leave of the khot prevailed in the village, any subsequent sales may have been influenced by that declaration.
4. It seems to us, however, that the Courts need not have been so strict on this point, for the entry in the Record of Rights must necessarily have been based on an enquiry by the officer who introduced it. As against the instances of sales without the permission of the khot relied on by the learned Judges below, there is the fact that the plaintiff has been unable to produce a single instance of a sale before which the khot's permission was taken. Mr. Chitale has argued that it is for the other side to prove the question of custom, and not for his client. But it seems to us that where the other side has shown that all the sales in the village since 1887 were without the khot's permission, it was for his client to rebut this evidence by citing cases, if any, of sales, with the khot's permission. Another fact leading to the same conclusion is the very large area of land which has passed away from the hands of the original khatedars. This fact has been noticed by both the Courts below, and it is obvious that much land has passed into the hands of persons who must have been purchasers, among whom are several of the khots. On the whole, we think that it has been established as found by the Courts below that the custom of alienation without the khot's permission has been established in this case.
5. The next point is one of estoppel. Is the khot, after having accepted 'dhara' and 'faida' from the defendants, precluded from forfeiting the holding on the ground that he must be held to have waived this right b. such acceptance? The plaintiff's position is somewhat peculiar, for the purchase in question was made by the members of his own family, when 'they were joint. His father and his uncle subsequently separated, but the defendant is his first cousin. The argument for the plaintiff is that he cannot be fixed with a knowledge of this transfer, because, since before the recent amendment of the Transfer of Property Act, registration was not notice, and the khata or account of the tenant in the' village record remained in the name of the original holder, and receipts were issued to whoever made the payment as for the amount due from the original tenant, though by the hand of the particular person paying it. It seems to us in the circumstances of this case that it is very hard to hold that the plaintiff had no knowledge of this particular transfer. It was the subject of a partition among the members of his own family, and he could not but have known that it had been transferred without the khot's permission by its original owner to his own family, and went by partition to his cousin. I think it is a presumption which the Courts have rightly made under Section 114 of the Indian Evidence Act.
6. Lastly comes the question of limitation. The learned Subordinate Judge thought that the case would fall under Article 139, or either Article 143 and 144 of the Indian Limitation Act. Both Courts below have discussed the question of Article 139, and have come to the conclusion that it does not apply, for the relation between the khot and his tenant is not strictly that of a landlord and tenant, since the khot is not a landlord, but in theory, at any rate, a farmer of the land revenue. The starting point of limitation in this case, if Article 143 applies, would be the date of the sale in 1887, and that makes the suit long time-barred. Under Article 144 time would begin to run from the point when the possession of the defendants became adverse to the plaintiff. Though there is no specific provision in this Article such as in Article 127, providing for knowledge in the plaintiff being the starting point of limitation, the use of the word 'adverse' connotes something similar, for the adverse possession has to be to the knowledge of the person against whom it is enjoyed, in the ordinary acceptation of the phrase. Here, however, the considerations which were mentioned in connection with the plea of estoppel again come into play. The plaintiff has been the managing khot ever since 1909, and his relations with the defendants and his conduct throughout, fix him with a knowledge of the transaction in question long prior to 1916, when the Record of Rights finally notified the fact in the village.
7. We think that the appellant fails on all the three points raised in the appeal. We confirm the lower Courts' decree and dismiss the appeal with costs.