1. The plaintiffs in this case sued (Civil Suit No. 87 of 1935) to recover possession of the suit lands situated in Mouje Jabapur, their respective Revision Survey Nos. being 58, 5911 5912 and 59-A. The plaintiffs allege that these lands are all pargana watan lands and were owned by Gundo, the adoptive father of plaintiff No. 1. Gundo had mortgaged the lands in suit to Ningappa the ancestor of the contesting defendants, appellants before us, in the year 1873. Gundo died in 1880; his widow Tungawa borrowed some more money from the said Ningappa and passed a document in his favour in 1886. The plaintiffs allege that by this document Tungawa, the adoptive mother of plaintiff No. 1, sought to create rights of permanent tenancy in favour of Ningappa and their case was that this document was the result of undue influence practised on her. Plaintiff No. 1 was adopted by Tungawa in 1922 and the present suit has been filed within twelve years from the date of his adoption.
2. Shortly stated the case for the plaintiffs is that the document executed by Tungawa is not binding on them and that the defendants who claim to be permanent tenants of the lands are trespassers or, at best, annual tenants. On that footing the plaintiffs claim possession of the suit lands and past mesne profits for three years. Plaintiff No. 2 has been joined to the suit ' as he is to get half share in the suit property if plaintiff No. 1 gets possession.'
3. The defendants pleaded that they were in possession of the lands not as annual tenants, nor as trespassers, but that they were permanent tenants of the lands, and in support of their plea of permanent tenancy they relied upon their long possession of the lands as tenants and they invoked the provisions of Section 83 of the Bombay Land Revenue Code, 1879.
4. The learned trial Judge held that the plaintiffs had no title to the land Revision Survey No. 59|2. He also held that defendants Nos. 1 to 12 were entitled to the presumption of permanent tenancy in regard to the lands bearing Revision Survey Nos. 58 and 59A and that the plaintiffs were not entitled to take possession thereof. With regard to Revision Survey No. 591 it was held that defendants Nos. 1 to 12 had failed to prove their permanent tenancy and that the plaintiffs were entitled to its possession.
5. The plaintiffs went in appeal to the Assistant Judge at Belgaum (Civil Appeal No. 87 of 1939). In appeal the findings of the learned trial Judge were accepted and the decree passed by him was confirmed. Against that decree the plaintiffs preferred a second appeal (No. 33 of 1941). Mr. Justice Sen who heard the said second appeal came to the conclusion that the view accepted by both the Courts below that the defendants had proved their plea of permanent tenancy with regard to the two lands Revision Survey Nos. 58 and 59A was erroneous in law. He held that on the documents produced in the case, the tenancy had been traced to 1860. He also held that the said documentary evidence 'would make 1861 the year of its commencement at the earliest.' Mr. Justice Sen also held that even if the tenancy be deemed to have existed for 20 or 25 years prior to 1886, the period of five years within which its commencement could be deemed to have been proved was a fairly definite period within the meaning of Section 83 of the Land Revenue Code. Thus the conclusion of Mr. Justice Sen was that the tenancy in question had been shown to have commenced in 1861 or between 1860 to 1865. In either view, according to Mr. Justice Sen, the landlord must be deemed to have proved by satisfactory evidence the commencement of the tenancy. On this view of the matter Mr. Justice Sen set aside the decree passed by both the Courts below, allowed the appeal and decreed the plaintiffs' claim for possession even as regards the two Revision Survey Nos. 58 and 59A. Against this judgment of Mr. Justice Sen defendants Nos. 3 to 5 and 8 and 9 have preferred the present Letters Patent Appeal,
6. It may be pointed out that the oral evidence led by the defendants in support of their plea of permanent tenancy was not accepted by both the Courts below and the finding recorded by them in favour of the defendants on that point was based on the documentary evidence in the case. The documents in this case are very few. First, there is a document of 1849 (exhibit 181). The material entry in that document in regard to Revenue Survey No. 40, which includes Revision Survey Nos. 58 and 59A, reads as follows:-
Revenue Survey No. 40,'
Sarva Inam:-Yamaji Sadashiv Nadgouda, of Inam Village Nadihalli Vahiwatdar personally: and Vahiwatdar as regards 10 acres, Babaji Afoaji Nadgouda Nadihalli: Khuski land (called) Mavingidad shet for this land were entered the following old paimashi Nos. 2. Nos. 33 and 34 entirely Karda are Sheshuubin Basanna Kagati and Appaya bin Avanna Bastwad.
It has been found that Yamaji was the ancestor of the plaintiffs and Appaya was the ancestor of the defendants. The view which both the Courts below had taken of this document was that Appaya was the tenant of Yamaji with regard to the land in suit and that Sheshu was a tenant of Babaji with regard to the ten acres which are not the subject matter of the present appeal.
7. On this document Mr. Justice Sen's view was that it was more likely that Sheshu was Yamaji's tenant rather than of Babaji and that Appaya may have been the tenant of Babaji. He, therefore, held that ' both the Courts below seem to have fallen into an error in holding it proved that the defendants' predecessors-in-title were tenants of the plaintiffs' predecessors-in-title on the land in suit in 1849.' It is true that the recitals in this document are not very specific or clear. And in the absence of any evidence as to the identity of Nos. 33 and 34 mentioned in the document; It is somewhat difficult to find which land they referred to. However, having regard to the area of the lands now in suit and the area of Revenue Survey No. 40 mentioned in exhibits 136 and 181 it would not be unreasonable to hold that the said Nos. 33 and 34 include the lands now in suit. The document refers to the two owners of Revenue Survey No. 40 and defines) the land which had fallen to the share of Babaji by its acreage, and by its name. Thus the rights of the two owners are distinctly and separately mentioned. The possession of both the tenants is shown as against Nos. 33 and 34 entirely. It seems to me that this document shows that Sheshu and Appaya were cultivating the land bearing Nos. 33 and 34 jointly. If the said Nos. 33 and 34 include the land now in suit, then it may not unreasonably be taken as established that the defendants' ancestor Appaya was in possession of the land in suit as a tenant, may be along with Sheshu. In construing this document Mr. Justice Sen has apparently failed to consider the effect of the word ' entirely ' used in reference to Nos. 33 and 34 and has overlooked the fact that the said two lands are shown to be in the joint cultivation of the two tenants Sheshu and Appaya. I, therefore, think that there is considerable force in the contention of the defendants that this document helps to trace back their possession of the land in suit to 1849. I am therefore not prepared to agree with Mr. Justice Sen in holding that both the Courts below had erred in finding that the ancestor of the defendants was shown to be in possession of the land in 1849.
8. Then the next document is of 1853 (exhibit 123). It purports to be an entry from-the Revenue Prat Book of that year. The extract shows Revenue Survey No. 40 as Sarva Inam, the Inamdar being ' Yamaji Sadashiv Sadgouda Madihalli, Absent.' This document does not refer to the persons in the actual cultivation of the land. It does not also show that Yamaji was personally cultivating the land. It is not suggested that in ordinary course the Revenue Prat Book is expected to mention the name of the tenant or cultivator. The absence of the name of any cultivator or tenant in this document is therefore inconclusive.
9. The next document is an agreement passed in writing by Gundo to Ningappa on April 3, 1873, (exhibit 136). Gundo had borrowed from Ningappa Rs. 300 and in order to secure the repayment of the said amount he agreed to mortgage to Ningappa Survey No. 40 measuring 27 acres, 11 gunthas, and assessed at Rs. 32. The document recited: ' I have given this land to you for cultivation from the current year till such time as you like ' and then it proceeded to provide for payment of Rs. 30 as, rent out of which Rs. 15 were to be deducted every year towards repayment of the amount of Rs. 300 borrowed by Gundo. In this document Gundo admitted that ' the aforesaid land is with you alone for vahiwat since formerly.' This document shows that the land had been in possession with Ningappa from before 1873 and that under this document Ningappa was given the right to be in possession of the land as long, as he liked.
10. The last document in the case is exhibit 189 which purports to be a permanent lease passed in writing by Tungawa in favour of Ningappa. In this document Tun-gawa refers to the amount borrowed by her husband from Ningappa and mentions that the balance still due thereunder was Rs. 105. She also refers to the amounts of. Rs. 195 and Rs. 200 borrowed by her on two occasions and she admits to have received Rs. 100 on that day. The document thus purports to be for a consideration of Rs. 600. Under this document Tungawa purports to give Ningappa the land in: question on a permanent lease on an agreement that Rs. 25 should be paid every year as rent to her and her successors from generation to generation. There is a recital in this document that for the last twenty to twenty-five years the land had been with' Ningappa for cultivation on rent. It is common ground that Tungawa was not authorised to pass a permanent lease of the land in question since, as a Hindu widow, she was a limited owner of the property. Besides, the lands in question being Pargana Watan lands, any alienation made by a watandar would not be binding on his successor. The defendants do not seek to base their claim for permanent tenancy on this document. They rely upon this document for the admission made by Tungawa that Ningappa was in possession of the land for twenty-twenty-five years before 1886. On the other hand, for the landlord it is contended that the reference to twenty to twenty-five years made in this document helps to fix the commencement of the tenancy between 1860 to 1865. It is also contended that reading the document literally it may be held that the tenancy commenced either in 1860 or in 1865. It must, however, be remembered that Ningappa as well as Tungawa were illiterate and the wording of the recitals in the document was probably settled by the scribe on some information given to him by Tungawa. The expression ' 20 to 25 years ' used in the document is vague and loose. It denotes that the land was with Ningappa for some years past; it was not possible to say precisely how many. Taken literally, the recital that the land was with Ningappa for twenty to twenty-five years cannot be regarded as accurate because Appaya, who was Ningappa's ancestor, is shown to have been on the land in 1849. It is, therefore, impossible to hold that this document affords any reliable evidence for determining the commencement of the tenancy. In this connection it must be pointed out that though Tungawa was examined in the case, she was not asked any question about the period for which the defendants were in possession of the land and no attempt was made by the plaintiffs to prove the correctness of this, recital in exhibit 189 asking Tungawa any material or relevant questions about it. This being the position of the documentary evidence, I am unable to accept the conclusion of Mr. Justice Sen that this document shows that the tenancy of the defendants, commenced in 1861 or between 1860 to 1865. Mr. Justice Sen has referred to the fact that ' the plaintiff has admitted that the tenancy commenced in 1860.' Plaintiff No. 1 has admitted that he had no personal knowledge in the matter and his evidence-in regard to the commencement of the tenancy is based upon the documents produced in the case. These documents show that the defendants were in possession of the land as tenants of the plaintiffs' ancestor probably in 1849, and, in any event, between 1860 to 1865. It is not either alleged or proved that anybody else unconnected with, the defendants' family was ever in possession of the land as a tenant. In fact, in the plaint no allegation is made as to when the tenancy of the defendants actually commenced according to the plaintiffs. Under these circumstances it seems to me that the defendants have established the antiquity of their tenancy and they are prima facie entitled to a declaration of their status as permanent tenants on the ground that the commencement of their tenancy cannot be proved because of its antiquity.
11. The next question which arises for decision is if the plaintiff shows that the defendants came on the land between 1860 to 18^5, is that ' satisfactory evidence of the commencement' of the defendants' tenancy Mr. Justice Sen took the view that even if it was held that the tenancy in question commenced some time between 1860 to 1865, the plaintiff can be deemed to have led satisfactory evidence about the commencement of the tenancy and that by reason of that evidence the presumption of permanent tenancy could not arise in favour of the tenants. Two views were pressed before Mr. Justice Sen. For the appellants it was contended that this Court has repeatedly held that under Section 83 if the landlord shows that the tenancy of a particular tenant may have commenced not in a particular year, but, within a margin of a reasonably definite period, he could be said to have led satisfactory evidence about the commencement of that tenancy; and it was argued that five years was certainly a margin of a reasonably definite period. The appellant thus claimed to have rebutted the presumption of permanent tenancy arising in favour of the defendants by reason of the antiquity of their tenancy. On the other hand the respondents urged before Mr. Justice Sen that whatever may have been the view of this Court before, since the decision of the Privy Council in Shankarrao Dagadujirao v. Shambu Nathu Patil (1940) 43 Bom. L.R. 1., it must now be taken to be settled that the only way in which a landlord can rebut the presumption of permanent tenancy arising in favour of the tenant by reason of the antiquity of his tenancy is to lead satisfactory evidence about the date of the commencement of that tenancy. It was urged that the earlier decisions of this Court which seemed to take a contrary view must be now treated as overruled. In this connection reliance was placed by the respondents on the decision of Divatia J. in Rama Appa v. Tippaya Appaya (1942) 45 Bom. L.R. 186 Mr. Justice;' Sen apparently accepted the contention of the appellants and took the view that the tenancy in suit was shown to have existed for twenty or twenty-five years in 1886 and that the margin of twenty to twenty-five years was a fairly definite period. On that view he decided that there was no justification for drawing the presumption of permanent tenancy in favour of the defendants.
12. Mr. Desai for the appellants has contended before us that Mr. Justice Sen has not properly appreciated the effect of the decision of the Privy Council in Shankanao Dagadujirao v. Shambhu Nathu Patil Under Section 83 of the Bombay Land Revenue Code-which deals with agricultural leases-the landlord starts with a presumption in his favour that the tenancy is annual since the person placed in possession of the land of another as tenant shall be regarded as holding the same at the rent, or for the services agreed upon; or in the absence of satisfactory evidence of such agreement, at the rent payable or services renderable by the usage of the locality, or, if there is no such agreement or usage, shall be presumed to hold at such rent as, having regard to all the circumstances of the case, shall be just and reasonable.' If a tenant sets up a plea of permanent tenancy, he has got to rebut this initial presumption by showing the antiquity of his tenancy as a result of which satisfactory evidence about its commencement is not forthcoming. He has also got to show that there is no evidence of the period of the intended; duration of his tenancy; if these facts are proved, the initial presumption in favour of the landlord is displaced by a presumption in favour of the tenant that the duration of his tenancy is co-extensive with the duration of the tenure of his landlord and of those who derive title under him. At this stage the onus shifts to the landlord, and if he resists the inference of permanent tenancy being raised in favour of the tenants, he has got to lead satisfactory evidence of the commencement of his tenancy. Thus in the application of Section 83, the onus of proof shifts from stage to stage and the question which often arises in such cases is: If the tenant proves the antiquity of his tenancy, is the landlord required to prove the commencement of the tenancy by date, month and year, or, would it be enough if he shows that the tenancy may have commenced: within a reasonably short period On a strict construction of the terms of the section itself, it seems to me that the landlord is expected to prove the commencement of the tenancy, and since such commencement must necessarily mean the year, if not the date and month, in which the tenancy, commenced, he is not entitled to say that he has led satisfactory evidence of such commencement merely by showing that the tenancy may have commenced within a margin of any five, ten or twenty years. Prima facie, the object of the section seems to be to project the possession of tenants who show the antiquity of their tenancy and who are able to claim that it is by reason of such antiquity that the commencement of their tenancy cannot be proved.
13. However, in several reported decisions this Court took the view that a tenancy cannot be presumed to be co-extensive with the duration of the tenure of the landlord, even though the commencement of such tenancy cannot be traced to a particular year, provided it can be traced to a definite period, say twenty years as for instance between 1830 to 1850. In Narayan v. Pandmang : (1922)24BOMLR831 a Division Bench of this Court had to decide this question in the light of the finding that the tenancy in that particular case had been traced back to a period from between 1830 to 1850. The judgment of Fawcett J. in this case is treated as a leading authority on this subject. While dealing with this question, this is what Fawcett J, held (p. 833):
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 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.
Mr. Justice Fawcett tested the argument by dealing with a hypothetical case in which the landlord may be taken to have established that the tenancy commenced after the year 1868 and before the year 1871, but was not able to show that it commenced in particular in 1869 or 1870.
Can it be reasonably said
asked Fawcett J. (p. 834):
that this defect prevents there being satisfactory evidence of the commencement of the tenancy I 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.
14. Mr. Justice Fawcett then proceeded to hold that if you get the commencement of the tenancy within a period of twenty years:
there is a commencement within a certain period shown which bars the presumption arising. 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, 183p to 1850, is clearly a reasonable one.
15. In Ramchandra v. Dotty : AIR1926Bom55 it appeared on evidence that certain land was waste land belonging to the landlord's ancestor in or about the year 1851, and the ancestor of the defendant probably first cultivated it some years later. It was held that the tenant was not entitled to the presumption mentioned in Section 83 of the Land Revenue Code. In this case Fawcett J. delivered the judgment of the Bench and dealt with the criticism made against his judgment in Narayan v. Pandurang : (1922)24BOMLR831 in these words (p. 1260):
In both the judgments of Pratt J. and myself, the main reason for holding that the presumption could not be drawn was that a certain period was proved within which the tenancy must have commenced, and that there was no good ground for saying that a particular year was the outside limit contemplated by the legislature in Section 83, in regard to proof of the commencement of a tenancy. As I have said in that case, 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.
It was urged before the Court that the fact that the ordinary tenancy contemplated by the Land Revenue Code is an annual tenancy supplies a reason for taking a year .as the extreme period contemplated by the legislature. Fawcett J. rejected that contention on the ground that ' there is nothing in Section 83 to confine it to the case of annual tenancies, and if the legislature had intended such a construction we think it would have been more clearly expressed.'
16. The same question arose before Fawcett and Patkar JJ. in Shripadbhat v. Rama (1926) 28 Bom. L.R. 274. In that case the tenancy was shown to have originated at some time between 1758 and 1857. It was held that 'the period of a century is too long and indefinite a period to constitute satisfactory evidence of the commencement of a tenancy within the meaning of Section 83.' Reliance was placed by the appellant in that case on the judgment of Fawcett J. in Narayan v. Pandurang : (1922)24BOMLR831 and in regard to the submission made on that judgment Fawcett J. said (p. 280):
I quite agree that logically Mr. Desaii for the appellants can contend that a period of a hundred years falls within the view taken in Narayan v. Pandurang, but as there mentioned, some reasonable limits must be applied, and I think that, at any rate, a period of hundred years is too long to satisfy that condition.
17. A similar view was taken in Janardan v. Lakshman (1930) S3 Bom. L.R. 551. In that case the defendants showed that they were in possession as tenants from 1860 and that there was nothing, to show how long they were in possession before that date. The plaintiffs adduced evidence to show that in the year 1758, another person was in possession of the land as a tenant. It was held:
that, the presumption could be raised in favour of defendants, inasmuch as there was neither any evidence of the period of the intended duration of the tenancy, if any, agreed upon between the, landlord and the tenant, nor was there any evidence of any usage of the locality as to the duration of such tenancy.
18. Dealing with the provisions of Section 83 of the Land Revenue Code, Patkar J. observed that:
ordinarily the landlord must prove the commencement of the tenancy by proving that particular day, month and year, on which the tenancy commenced by production of the lease-or a rent note. It was, however, held in Narayan v. Pandurung that in the absence of proof of the commencement of the tenancy in a particular year a definite period from 183G to 1850 might be considered to be sufficient to show the commencement of the tenancy in order to counteract the presumption under Section 83 of the Bombay Land Revenue Code.
Patkar J. also referred to the decision in Shripadbhat v. Rama (1926) 29 Bom. L.R. 275 where a period of one hundred years was regarded as being too long and indefinite to satisfy the condition laid down by Section 83 to denote the commencement of the tenancy. It may be noticed that apart from the authorities by which Patkar J. thought he was bound, on the section itself the view which he took was that the landlord had to prove the commencement of the tenancy by proving the particular day, month and year on which the tenancy commenced.
19. In Vaman v. Khanderao (1934) 37 Bom. L.R. 376 Beaumont C. J. and Divatia J. had to consider a similar question under Section 83 of the Land Revenue Code. Dealing with it, Beaumont C. J. referred to the earlier decisions of this Court under Section 83 in these words (p. 380):-
It has been held by this Court in a good many cases that Section 83 of the Bombay Land Revenue Code, in referring to the absence of satisfactory evidence of the commencement of a, tenancy, does not mean that there must be satisfactory evidence as to the exact date of commencement, that is, the day on which the tenancy commenced, but that it is sufficient if the evidence shows that the tenancy must have commenced in a particular period; and; the degree of elasticity permissible in relation to the period has been the subject-matter of a good many decisions. Here it is suggested by the defendant that as the period is fixed, between 1844 and 1851, there is sufficient evidence as to the commencement. I doubt that, proposition,...
Then the learned Chief Justice pointed out that on the evidence in that case, even that, assumption had not been established. In the view which I take about the effect of the provisions of Section 83 of the Land Revenue Code, I respectfully share the doubt expressed by Beaumont C. J.
20. On the authorities, however, it is clear that this 'Court somewhat liberally construed Section 83 of the Land Revenue Code in favour of the landlord and held that the landlord may successfully resist the claim of the defendant to be regarded as a permanent tenant even if he shows that the tenancy commenced not in a particular year, but within a reasonably short period of years,
21. In Shankarrao Dagadujirao v. Shambhu Nathu Patil (1940) 43 Bom. L.R. 1. the question as to the tenant's rights of permanent tenancy arose before the Privy Council. This Court, had held that the tenancies in all the six cases involved in that appeal attracted the provisions of the second paragraph of Section 83 of the Land Revenue Code. While dealing with this question their Lordships referred to the decisions of this Court which I have mentioned above, and they said (p. 15):
Some cases have been cited to their Lordships to show the interpretation put upon this provision of Section 83 by the High Court of Bombay [Maneklal Vamanrao v. Bai Amba (1920) L.R. 45 Bom. 350:22 Bom. L.R. 1394; Sidhmath v. Chiko : AIR1921Bom454 , on appeal 24 Bom. L.R. 226: I.L.R. 46 Bom. 687, Narayan Ramchandra v. Pandtirang Balkrishna I.L.R.(1922) Bom. 4: 24 Bom L.R. 831, Ramchandra v. Daltu : AIR1926Bom55 and Shripadbhat v. Rama (1926) 29 Bom. L.R. 274] Their Lordships think that for the purposes of the present case it is sufficient to note that the particular presumption mentioned in the clause is not directed to be made save upon these two conditions (among others): first, that there is no satisfactory evidence of the date of the commencement of the tenancy, and secondly, that this lack is due to the antiquity of the tenancy. They cannot agree that the first condition ,is excluded by showing that the tenancy had its origin at some date within a period of twenty years which cannot be more precisely ascertained. This is not satisfactory evidence of the date of its commencement, and the view taken in Narayan's case (supra) fails'in their Lordships' opinion to give effect to the ordinary meaning of the language of the clause. Again, by a tenancy's antiquity the section does not in their Lordships' opinion intend any reference to remote ages in the past or to ' time immemorial' in the sense of the English law. It is to be -given the practical meaning appropriate to its context and afforded by the limits within which living testimony to past facts is necessarily restricted.
It may be pointed out that as regards the tenancies with which their Lordships were dealing, their Lordships took the view that they were not proved to have been in existence before 1892 and that the presumption could not, therefore, be properly applied to them, ' notwithstanding that the evidence by no means excludes the possibility of an earlier origin.' Their Lordships did not, therefore, proceed as regards any of the said tenancies upon the presumption authorised by Section 83. They held that the tenancies in question were permanent tenancies on the other evidence in the case, particularly the entries in the Record of Rights which described the possession of the tenants as that of permanent tenants.
22. The question which thus arises for decision is whether having regard to the observations of their Lordships of the Privy Council to which I have just referred the view taken by this Court in the earlier decisions is still good law. It is true that the actual decision of the Privy Council was based upon independent evidence in favour of the tenants and that in terms the Privy Council refused to proceed as regards the tenants who had pleaded permanent tenancy upon the presumption authorised by Section 83. In that sense the observations in question are obiter. But it is well established that the obiler dicta of their Lordships of the Privy Council are binding on all courts in India if the said dicla contain a definite expression of their Lordships' opinion: [vide Shnnivas Sarjerao v. 'Balwant Venkatesh I.L.R. (1913) Bom. 513:15 Bom. L.R. 533] Now there is no doubt' that the observations 'made by the Privy Council in Shankarrao Dagadujirao v. Shambhu Nathu Patil as to the scope and proper effect of the provisions of Section 83 of the Land Revenue Code contain their Lordships' well considered opinion on that section. The point was obviously argued before their Lordships and the decisions of this Court which took a liberal view of Section 83 were cited before them. The judgment of Fawcett J. In Narayan v. Pandurang which was, in this Court, regarded as a leading judgment on this point was considered by their Lordships in some detail and its reasoning was subjected to a close examination. Under these circumstances, it would, I think, be impossible to accede to the contention of the plaintiff-respondent before us that in spite of this .clear expression of their Lordships' view it would be permissible for us to rely upon the earlier decisions of this Court as good law. Their Lordships have clearly indicated that the satisfactory evidence which the landlord is expected to lead to rebut the presumption of permanent tenancy arising in favour of the tenant must relate to the Commencement of the tenancy, and as the word 'commencement' clearly indicates the said evidence must have reference to the year, if not the month and date, of such, commencement. I think', therefore, that even on the alternative finding recorded by Mr. Justice Sen that the tenancy in this case may have commenced between 1860 to 1865, it cannot be held that that is satisfactory evidence of the commencement of the tenancy within the meaning of Section 83 of the Land Revenue Code. That being so, the Court is entitled to draw the presumption of permanent tenancy in favour of the 1 tenants in this case. In Rama Appa v. Tippaya Appaya (1942) 45 Bom. L.R. 186 Divatia J. took the same view about the effect of the Privy Council decision in Shankanao Dagadujirao v. Shambhu Nathu Patil, and Lokur J., while dealing with a similar question in Kantilal Bakordas v. Kuberdas Hargovandas (1943) Second Appeal No. 566 of 1940, decided by Lokur J., on July 13, 1943 (Unrep.), has accepted the view expressed by Divatia J. For the plaintiff-respondent Mr. Coyajee has, however, contended that Section 83 of the Land Revenue Code cannot apply to the lands in suit since these lands are pargana watan lands. The argument is that Section 83 deals with ordinary rayatava lands and the nature of the presumption which arises under para. 2 of that section shows that the section was not intended to apply to watan lands. Under para. 2 of the said section ' the period of the tenancy is presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.' Mr. Coyajee contends that in the case of watan lands the successor of the immediate landlord cannot. be said to derive his title under him and so the presumption arising under that paragraph cannot enure to the benefit of the tenant as against such successor. This point,, however, has not been taken in any of the Courts below and Mr. Desai for the appellants objects to permission being granted to Mr. Coyajee to argue this point for the first time in Letters Patent Appeal. Having regard to the consistent practice of this Court in this matter, Mr. Desai's objection must be upheld. [Vide Sattappa v. Mahomedshah (1925) 38 Bom. L.R. 221
23. I will, therefore, assume that Section 83 of the Land Revenue Code applies to watan lands. Before Regulation XVI of 1827, these watan lands were alienable like all other property. By the provisions of the said regulation watan property became inalienable. This regulation was applied to the Belgaum District in 1830. For the plaintiff-respondent Mr. Coyajee's contention is that in applying Section 83 of the Land Revenue Code to watan lands, the tenant must be called upon to show not merely that he has been in possession of the land as tenant for a very long number of years, but that his possession as such tenant is traced back to a time when the land was alienable. It has been held by the Privy Council in Madhavrao v. Raghunath : (1923)25BOMLR1005 that:
persons who and whose predecessors-in-title have claimed to be and were tenants of service Vatan lands cannot acquire title to a permanent tenancy in the lands by adverse possession as against the Vatandars from whom they hold the lands.
In the light of this decision of the Privy Council, it has also been held in Vishnu v. Tukaram (1924) 27 Bom. L.R. 449 that:
A person who is in possession of watan lands as a tenant of the vatandar cannot acquire a right by adverse possession to fixity of rent.
' Even if a permanent tenant can acquire a right of fixity of rent as against the immediate holder of the watan by adverse possession, it will not prevail against the next holder.
The question as to the effect of these two decisions on the application of Section 83 of the Land Revenue Code to watan lands arose incidentally in Govind v. Vithal (1930) 33 Bom. L.R. 210. It was held:
that the defendants were entitled to rely on the presumption raised under Section 83 of the Land Revenue Code and that they could not be ejected from the land.
Having regard to the facts found in that particular case, Patkar J, took the view that (p. 212):
It is not necessary in the present case to go into the general question as to whether the presumption under Section 83 does or does not apply to watan lands...
Dealing with the decision of the Privy Council in Madhavrao's case Patkar J. pointed out that the permanent lease in that case was granted on March 15, 1853, after the enactment of the Bombay Regulation XVI of 1827, and held that the decision in the said case does not prevent the raising of the presumption under Section 83 of the Bombay Land Revenue Code in regard to the tenancy with which he was dealing. In Ramchandra v. Adiveppa (1932) .54 Bom. L.R. 1131 the tenancy of the defendant had commenced somewhere within a period of 150 years between 1700 and 1850. The lands were watan lands, which first became inalienable on the passing of Regulation XVI of 1827. A question having arisen whether the tenancy became permanent by virtue of the presumption contained in Section 83 of the Bombay Land Revenue Code, it was held:
that having regard to the fact that Section 83 of the Bombay Land Revenue Code did not exclude watan lands from its operation and to the fact that the onus was on, the landlord to show the commencement of the tenancy, the Court should presume that the tenancy of the defendant was in existence even prior to 1827.
It was also held:
that the tenancy of the defendant having commenced somewhere between the years 1700-and 1850, it should 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 that, therefore, the statutory presumption of permanent tenancy arose under Section 83 of the Bombay Land Revenue Code, 1879.'
Mr. Desai contends that Mr. Justice Patkar held in this case that in case the tenant showed that he was in possession as a tenant in 1850, a presumption must be drawn that he was in possession even before 1827. He argues that under this decision it is the landlord who must resist the inference arising from the defendants' antiquity of tenancy by showing that the tenancy in question commenced at a time when the prohibition against alienation of watan property came to be enacted. It may be pointed out that when Patkar J. held that the tenancy of the defendant commenced somewhere between the years 1700 and 1850 it was in reference to the evidence in the case which showed that the tenant had traced back his possession to 1850 whereas the landlord had shown that in 1700 the village in which the land was situated was waste. Even so, this Court held that the tenancy must be deemed to have been in existence even prior to 1827.
24. Mr. Justice Broomfield dealt with this question in Dhondii v. Damodar (1934) 37 Bom. L.R. 209. He referred to the Privy Council decision in Madhavrao v. Raghunath : (1923)25BOMLR1005 and to the decisions of this Court in Govind v. Vithal (1930) 33 Bom. L.R. 210 and Ramchandra v. Adiwppa : AIR1932Bom577 ' If,' says Broomfield J. (p. 212):
as appears to me to be the case, there is no satisfactory evidence as to the time when the tenancy in this case commenced, then on the authority of Govind v. Vithal, the defendants would be entitled to rely on the presumption under Section '83. In Ramchandra v. Adiveppa this Court considered both the Privy Council ruling and the decision in Vishnu Ramchandra v. Tukaram Ganu I.L.R.(1924) Bom. 526: 27 Bom. L.R. 449 and it was held that having regard to the fact that Section 83 of the Bombay Land Revenue Code did not exclude watan lands from its operation and to the fact that the onus was on the landlord to show the commencement of the tenancy, the Court should presume that the tenancy of the defendant there was in existence even prior to 1827. It is true, as the learned Counsel for the respondents pointed out, that in that particular case the earlier limit for the commencement of the tenancy went back as far as 1700, but the later limit was 1850, that is to say, after watan lands had become inalienable, and the principle laid down will apply to the present case, where also possession presumilm retro. I hold, therefore, that the fact that these lands are watan lands does not constitute a legal bar to the operation of Section 83 of the Bombay Land Revenue Code.
In the case with which Mr. Justice Broomfield was dealing the tenant was able to trace back possession to 1878. It is true that in that particular case the plaintiff landlord had not produced documents with regard to the property, prior to 1878 and Mr. Justice Broomfield held that an inference would be justifiable that if the said records which were admittedly in the possession of the plaintiff had been produced they would have supported the defendants' case that their ancestors were in occupation of the land even prior to 1878. But the application of the principle of presumitur retro to the facts of that particular case does not seem to have Been influenced by the finding as to the non-production of the documents by the plaintiffs in that case.
25. In Krishna v. Laxmibai (1937) 40 Bom. L.R. 459 it was held that the evidence in the case justified the finding of the trial Court as to the time at which the defendants' tenancy of the watan lands in dispute commenced, and since the commencement of the tenancy had been ascertained with reasonable definiteness, Section 83 of the Land Revenue Code could not in terms apply to assist the defendants. On that view of the matter it was not necessary to consider the other question as to whether in the case of watan lands it is for the tenant to show that he was in possession of the said lands as a tenant at a time when the watan property was alienable. Mr. Justice Broomfield incidentally referred to the decisions bearing on this point and observed (p. 441):
What was held in those cases was that Section 83 will apply in the case of watan lands if the tenancy has been shown to have commenced before watan lands were rendered inalienable by the operation of Regulation No. 16 of 1827.
As I have already pointed out, the decisions in question including the judgment of Broomfield J., to which I have already referred, do not seem to put the onus on the tenant to carry his possession back to a period when the watan property was alienable. On the contrary they seem to lay down that if the tenant establishes the antiquity of his tenancy, the doctrine of presumitutr retro, comes to his help and the landlord can rebut the presumption arising from such possession only by showing that the tenancy commenced at a time when the watan property had ceased to be alienable,
26. The doctrine of presumitur retro is one of general application and there is no justification for excluding from its operation watan property. As held by the Privy Council in Anangamanjari v. Tripura Soondari Chowdhrani 'when the state of possession for a long period of years has been satisfactorily proved, in the absence of evidence to the contrary, presumitur retro.' Under Section 33 when the defendant seeks to rebut the initial presumption of annual tenancy arising in favour of the landlord, he leads evidence to show that he has been in possession of the land as a tenant of the plaintiff or his predecessor for a very long time. If and when he proves the antiquity of his tenancy, he invites the Court to draw an inference in his favour that it is because of that antiquity that the commencement of his tenancy cannot be proved and that the period of his tenancy should, therefore, be regarded as co-extensive with that of the landlord. At this stage the landlord has got to meet that evidence by showing that the tenancy had commenced in a particular year. Now, while dealing with the question of the long possession, it is difficult to see why this doctrine of preswmitur retro should not apply merely because the property of which the tenant had been in possession happens to be watan property. That, being so, in the present case the defendants must be deemed to be entitled to the presumption under Section 83 of the Land Revenue Code. As I have already said above, there is evidence to show that they Were in possession of the land in 1849, Even according 'to the finding of Mr. Justice Sen, they were on the land sometime between 1860 and 1865. Under these circumstances, they must be presumed to have been in possession prior to 1830 when the watan lands became inalienable in this district.
27. The result is that the appeal is allowed and the decree passed by the learned Assistant Judge, Belgaum, in Civil Appeal No. 87 of 1939 is restored. The respondents to pay the appellants' costs of this Letters Patent Appeal as well in Second Appeal No. 33 of 1941.
Kania, Ag. C.J.
28. I agree. The question before the Court is whether the defendants have established that they were permanent tenants and as such entitled to retain possession against the plaintiffs. In the trial Court oral evidence was led but that was regarded as unsatisfactory. Therefore, a conclusion has to be drawn from the documentary evidence in the case. That consists of four documents. The first set came into existence in 1849 and consists of entries in the Revenue Pucca Book. The second is a document of 1853 which is an entry in the Revenue Prat Book of that year. The third is a document of 1873 (exhibit 136) and the fourth is described as a permanent lease (exhibit 189). Mr. Justice Sen considered the first two sets and came to the conclusion that they did not show that the defendants' predecessors-in-title were tenants of the plaintiffs' predecessors-in-title of the lands in suit. In the later part of his judgment he stated that it was not shown that they were such tenants 'of the plaintiffs' family.' I do not think the learned Judge attached any particular significance to the words ' plaintiffs' predecessor ' or ' plaintiffs' family.' In my opinion, that point is not material. The point to be proved is whether the defendants' predecessors-in-title were in possession of the land in suit as tenants. Approaching these two documents from that point it appears that the learned Judge overlooked the fact that the total area of survey No. 40 in 1849 (excluding the ten acres mentioned in exhibit 190) was 27 acres and 11 gunthas. That conclusion is supported by the statement of the area of survey No. 40 in the documents of 1873 and 1886. The learned Judge has further overlooked the fact that in exhibits 181 and 190 (which are two copies of the same document) the word ' entire ' is used in connection with the names of the cultivators. Bearing in mind these two important facts it seems to me that the two cultivators, one of whom was the defendants' ancestor, were tenants of survey NO. 40 in 1849. It is not clear what particular area was held by them as such tenants. The original book which may throw some light on it was produced in the trial Court but is not here at present. The copy, which is put in as Exhibit, shows that Nos. 33 and 34 were the original members before survey No. 40 was given to this area, and in connection with these two numbers the word ' entire ' or ' entirely ' is used. Bearing in mind the fact that the total area of the four plots of land in respect of which the plaintiffs filed this suit is 27 acres and 11 gunthaa (about) and also the fact that the plaintiffs have-claimed these as successors-in title of Yamaji, it appears that the ten acres which were referred to in exhibits 181 and 190 as under the management of Babaji Abaji were not under the tenancy of the two tenants. I think that if the learned Judge had these two facts before him, he would have come to the conclusion that the defendants' predecessor Appaya was one of the tenants of survey No. 40 in 1849.
29. The relevant clauses and terms used in the documents of 1873 and 1886 have been set out in the judgment of my learned brother. The document of 1873 clearly shows that the lands in question were under the ' vahivat' of the defendants' predecessors before that year. That document in terms says that after the period of mortgage1 was over the tenant could continue to be in possession and enjoy the lands ' as long as he liked' on payment of Rs. 30 a year. That document therefore clearly establishes the right of the defendants' predecessor to hold the lands in perpetuity after the period of the mortgage. It equally shows that the tenant was in occupation as such for some time before that date. That document further shows that the tenant's right of possession and tenancy had commenced before 1873. The document of 1886, although described as permanent lease, is in effect a mortgage. It is difficult to see how the document of 1873 can be limited by a later document, merely because it is described as a permanent lease. In my opinion, that document only makes a slight variation of the rent to be paid by the tenant, after the mortgage loan was paid off by appropriating the rent towards payment of the capital amount. I do not think that document shows that the commencement of the tenancy was in 1861 or 1866 as contended by the respondents. I apprehend that the learned Judge did not correctly appreciate the effect of that document in the light of the recitals found in the document of 1873. The statement that the land was for vahivat for the last twenty or twenty-five years for cultivation with the tenants, is only a loose way of expressing that the land was in the possession of the tenant for several years before the document was passed. It does not fix even an approximate time during which the land was previously in the tenant's possession. That is made clear on reading the original. The statement of the plaintiffs on which the learned Judge relied to show that the tenancy commenced in I860 does not help the respondents, because that statement is not made of personal knowledge but only as a result of his own conclusion on the construction of the documents produced in the case. I therefore agree with my learned brother that the commencement of this tenancy is not shown to be in the year 1861 or 1866. I am unable to agree with the conclusion of Mr. Justice Sen that the tenancy has been traced up to 1860.
30. The effect of the last two documents even if we ignore the two documents of 1849 and 1853 is that the tenants as such were in possession in 1873 and they were in possession of the land as tenants for some years before that. The question under the circumstances is what is the effect of Section 83 of the Land Revenue Code. That section I contemplates the tenant contending that by reason of antiquity of tenancy he is unable I to produce definite evidence of his possession as a tenant beyond a certain period. The section is interpreted to mean that if the tenant proves that, the landlord has to enter upon his defence and establish that the tenant's contention that the original tenancy is lost in antiquity is not correct because by affirmative evidence he is able to. establish that the tenancy had commenced at a particular time. That appears to be the result of the decisions on the construction of Section 83. A controversy then arose as to what was the meaning of the words ' commencement of the tenancy.' Was it sufficient if it was shown that it commenced within a span of twenty or thirty years In Narayan v. Pandurang : (1922)24BOMLR831 it was held that a period of twenty years was not unreasonable under the circumstances of the case. An attempt was made to extend that period to thirty-six years, but that failed. The question whether proof of such kind is satisfactory proof of the commencement of the tenancy came to be considered by the Judicial Committee of the Privy Council in Shankarrao Dagadujirao v. Shambhu Nathu Patil (1940) 43 Bom. L.R. 1.. Their Lordships definitely negatived the contention that proof of commencement of tenancy by the landlord within a period of a few years (in that case twenty years) was not the proof required under Section 83 of the Land Revenue Code. It is true that this expression of opinion was not directly called for, but in the matter of interpretation of a section of the Act there is no question of the opinion being obiter. In my opinion this interpretation is entitled to its full weight. It appears that their Lordships were pressed with the contention that if the argument about the commencement of the tenancy during the period of years was rejected, the Court must say that it must be proved that the commencement was on a particular date. Their Lordships appear to have accepted that argument. I venture to think however that their Lordships did not literally mean that proof on the part of the landlord must be of the exact dale of the commencement of the tenancy. It must be recognised that in the case of agricultural lands tenancy for a week or a month is out of question. The normal course of letting such lands is for a year. I should not be surprised if the matter were again brought before the Privy Council and their Lordships accepted the contention that if proof of the commencement of the tenancy to a certain specifier year was given and accepted by the Court, it would meet the provisions of Section 83.
31. I do hot propose to deal in detail with the various authorities cited before us. They have been fully dealt with in detail by my learned brother. I only desire to say that in Ramchandra v. Adiveppa 1982) 34 Bom. L.R. 1131 the assumption that the period of commencement was between 1700 and 1850 has to be considered along with the fact that the Court found that the village itself came in the possession of the plaintiff's predecessor in 1700. I think perhaps a better way of putting it might have been that the title of the plaintiff's predecessor in that case could only be from 1700 and it was proved that the defendants' tenancy was before 1850 and therefore a presumption was permitted to be drawn under Section 83 of the Land Revenue Code. The only question before the Court was that if possession and tenancy were established up to 1850, was the tenant entitled to the presumption permitted to be raised under Section 83 In that connection it may be noticed that in Shankarrao Dagadujirao v. Shantbhu Nathu Patil at page 15 their Lordships observed as follows:
Again, by a tenancy's antiquity the section does not in their Lordships' opinion intend; any reference to remote ages in the past or to.' times immemorial' in the sense of the English law. It is to he given the practical meaning appropriate to its context and afforded by the 'limits within which living testimony to past facts is necessarily restricted.
32. In the present case once it is held that the defendants' predecessors-in-title were in possession as tenants prior to 1873 or 1849, I think the defendants have discharged the burden which lay on them to prove antiquity within the meaning of the section. The suit was filed in 1935 and the judgment was given in 1939. The defendants had thus led evidence of the character of their possession of over 60 years. This is prima facie sufficient proof. In view of the Privy Council judgment the attempts contend that the commencement of the tenancy may be between 1861 and 1866 does not help the plaintiffs, because such commencement is not considered sufficient to the presumption raised on the evidence led by the defendants.
33. Mr. Coyajee raised the larger question whether Section 83 applied to pargana watan lands at all. He strongly relied on the concluding part of the paragraph in Section 83 dealing with this question and urged that as each successive tenant did not claim from the preceding holder the words and expression used in Section 83 did not apply to watan lands. We are not concerned in the present case with this contention because it cannot be permitted to be raised in the Letters Patent Appeal for the first time. The only contention urged before Mr. Justice Sen, as summarised by the learned Judge, was this:.that with regard to watan lands, Section 83 of the Land Revenue Code is subject to the qualification that if the tenancy could not have commenced before 1830, when the Regulation No. 16 of 1827 came into operation, no presumption under that section could arise.
The contention therefore was that even if the Court could raise a presumption under Section 83 in respect of watan lands, when there was a tenancy shrouded in antiquity, there can be no presumption that such tenancy came into existence prior to 1830. That argument was considered and rejected by Mr. Justice Broomfield in Dhondu v. Damodar (1934) 37 Bom. L.R. 209. I respectfully agree with that conclusion. once it is held that the commencement of the tenancy was beyond the memory of persons who could depose to it when litigation started, there appears no reason to limit that to a particular period. In fact I think it will be a contradiction in terms to say that it commenced before 1839 but not in 1819. The only contention which can be urged is that the defendants must show that the tenancy commenced before 1830. In my opinion, there is no justification for holding that it was the duty of the defendants to show that the land in question was in their possession as tenants and that the tenancy commenced before 1830. I The proof of antiquity, once accepted by the Court, does not limit it to a particular period, and I see no reason why the Court should not presume that the tenancy commenced before any legislative disability against alienation was imposed in a particular year.
34. I therefore agree that the appeal should be allowed and the decree of the first appellate Court restored. The respondents should pay the costs of this appeal and of the appeal before Mr. Justice Sen.