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Rahimtulla Vs. Hasanali Alimahomed - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Suit No. 920 of 1921
Reported inAIR1924Bom212; (1923)25BOMLR1192; 85Ind.Cas.1038
RespondentHasanali Alimahomed
fazandari tenure - perpetual fazindari-esate equivalent to estate in fee simple-lands held under lease from government for a fixed term-covenant for renewal-covenant for re-entry-underlease on fazandari terms-stipulated title not made out.; the defendant agreed to sell to plaintiff laud at matharpakhadi, in bombay, which was represented to be 'perpetual fazandari at an yearly rent of rs. 10' and 'an estate equivalent to au estate in fee simple in possession free from incumbrances,' during the investigation into title, all that the defendant could show was that in the earlier title deeds the property was described as fazandari and there were fazandari bills. the defendant also relied on the fact that the whole of matharpakhadi was on fazandari tenure. the plaintiff was not satisfied with.....fawcett, j.1. his lordship after summarising the facts of the case continued : the main question is, therefore, whether the defendant has properly complied with clause 6 of the agreement exh. f and adduced satisfactory proof that the tenure of land agreed to be sold is perpetual fazandari subject only to the small annual rent of rs. 10. the land in question is admittedly situated in the quarter known as matharpakhadi, which forms part of what is known as the mazagaon estate ; and it is fortunate that the history of this estate, in regard to the disposal of lands included in it, is known from about the middle of the sixteenth century a. d. the court is much indebted to the care and ability with which the respective attorneys and counsel have prepared and argued this case and also to the.....

Fawcett, J.

1. His Lordship after summarising the facts of the case continued : The main question is, therefore, whether the defendant has properly complied with clause 6 of the agreement Exh. F and adduced satisfactory proof that the tenure of land agreed to be sold is perpetual Fazandari subject only to the small annual rent of Rs. 10. The land in question is admittedly situated in the quarter known as Matharpakhadi, which forms part of what is known as the Mazagaon Estate ; and it is fortunate that the history of this estate, in regard to the disposal of lands included in it, is known from about the middle of the sixteenth century A. D. The Court is much indebted to the care and ability with which the respective attorneys and counsel have prepared and argued this case and also to the compilation of Mr. Vaidya regarding the Bombay City Land Revenue Act, in the introduction to which (viz., in Chapter III) he has given the history of this Mazagaon Estate. It may be mentioned that this history is based on historical records, many of which appear in Vol. XXVI of the Bombay Gazetteer, being Part III of the Materials collected by the late Sir James Campbell for the Gazetteer of Bombay Town and Island, and a similar account of the Maxagaon Estate will be found in Vol. II of the Gazetteer of Bombay City and Island, compiled by Mr. Edwardes at pages 391 to 408. So that there can be no question of the authority of the facts stated in Chapter III of Mr. Vaidya's Compilation, and as this was referred to by counsel in the suit, I shall adopt it for reference whenever I find it necessary to do so.

2. It is unnecessary for the purposes of this judgment to go in detail into the history of this Mazagaon Estate from its commencement. It is enough to say that the estate became vested in the East India Co. and that most of it was farmed out by the Collector of Bombay from towards the end of the eighteenth century. The Matharpakhadi portion had been leased in 1781 to a Mr. A. Nesbit (Vaidya, Introduction, page lxx) and it again came to him in 1788 (Ibid, lxxi). Then from the recitals in a document dated April 9, 1868 (which there is no reason to question), it appears that the Company gave a lease of this portion of the Mazagaon Estate on January 31, 1831, for twenty-one years to the trustees of the late Mrs. Nesbit, who presumably had come in to possession of the estate from her husband. Then, on August 5, 1831, these trustees assigned the lease to Sir Jamsetjee Jeejeebhoy and on January 27, 1855, got a lease of this property for twenty-one years from 1852. Sir Jamsetjee Jeejeebhoy left three sons who partitioned the property among themselves, and this Matharpakhadi property came to his son Bustomjee, who took possession accordingly, but through some error the property appears to have been actually conveyed on September 22, 1865, to his brother Sorabjee. Both Rustomjee and Sorabjee became insolvents and eventually a document was executed under which Sorabjee and the trustees for the liquidation of Rustomjee's estate and other parties conveyed the residue of the lease for twenty-one years to one Narayan Vasudev in consideration of the sum of Rs. 12,000. This document is Exh. A, dated April 9, 1868.

3. Narayan Vasudev died on August 6, 1874, having executed a will dated June 3, 1874, of which probate was granted on November 21, 1874 Negotiations took place between the executors of Narayan Vasudev and Government for the renewal of the lease which had expired in 1873. They asked for a term of 99 years to which Government consented, and on February 16,1877, the Government granted a lease to these executors for 99 years from January 1, 1873, at the annual rent of Rs. 108-4-0. A certified copy of the document is Exh, B. The title of the executors of Narayan Vasudev appears to be now vested in Mr. Abaji Bhaskar, a sister's son of Narayan, Vasudev, who is a witness in this case.

4. It may be mentioned here that the area leaded is about 52000 square yards but we are only concerned with one of the plots into which this property has been divided, viz, plot No. 20, according to the division recognised by Abaji Bhaskar. Its measurement is in dispute but it appears to be somewhere between 200 and 250 square yards.

5. The first document of title produced and relied upon by the defendant is dated June 26, 1875, from one Domingos Pascoal Gonsalves to Minguel de Mello In this the plot in question is described as:

That messuage tenement or dwelling house standing on the Fazendari Ground of the Honorable Narayen Wassoodewjee situate lying and being without the Fort of Bombay at Matharpacady in the Sub-District of Vlazagon.

6. And it recites that Domingos Pascoal Gonsalves is:

absolutely seized and possessed of or otherwise well and sufficiently entitled to a messuage tenement or dwelling house hereinafter particularly described and intended to be hereby granted released and convened for an estate of inheritance in fee simple in possession free from incumbrances.

7. Then there are various other subsequent title-deeds in which the property is similarly described. The last one is a document of 1913 under which the defendant obtained the property.

8. It will be seen that the laud in question has been described as Fazandari from 1875 and Aoaji Bhaskar deposes that he calls himself a Fazandar, following the practice of his predeces-sor-in-title Narayan Vasudev. He also says that as far as he is aware there is no writing evidencing the terms on which this particular plot was originally granted to Domingos Pascoal Gonsalves or his predecessor-in-title He says that except in one or two cases the occupancies are held under oral grants; that they are perpetual, being grants for 'as long as the Sun and Moon endure'; and that he does not claim to be entitled ever to resume possession of them. On the other hand he admittedly holds the property under a lease from Government of February 16, 1877, Exh. B. He states that the 118 plots in this property were originally granted by Sir Jamsetjee Jeejeebhoy in about 1860 but this statement has not been verified, nor is it necessary to delay this trial for an investigation of this point.

9. The above are the facts so far as it is necessary to state them for the purpose of deciding the question at issue, and obviously the first consideration is as to the meaning to be attached to the word 'Fassandari'. This is not the first time that a question of this kind has come before this Court. It is referred to in the ease of Doe dem. Dorabji v. Bishop of Bombay (1848) O.C. 498. Perry C.J. at pages 505 and 506 says that there is an ambiguity regarding the Fazandar's position but that in his opinion the term 'Fazendari' usually denotes land not belonging to Government, by which I understand he means land not subject to the ordinary liability of resumption and increase of assessment by Government, in other words, land that may be described as 'freehold'. The other Judge, Yardley J., gave it a wider meaning and speaks of the Fazendar as equivalent to an immediate landlord of the occupant, provided that landlord is not Government (p. 508).

10. Farran J. had the same question before him in the case of Parmanandas Jivandas v. Ardeshir Framji I.L.R. (1886) 39 Bom. 320: 16 Bom. L.R. 723 and sums up the matter by saying at p. 325:

My experience is that it (i. e. the word 'Fazendari') is used with reference to tenants holding under a private landholder to indicate sometimes an indefeasible right to hold in perpetuity on payment of a small quit or ground rent and sometimes any kind of tenure agreed upon between the parties.

11. This practically agreed with the different meanings assigned to it by Perry C J. and Yardley J. The first, namely, the strict or proper meaning, is what Farran J. calls 'an indefeasible right to hold in perpetuity on payment of a small quit or ground rent' ; and the second, the loose or inaccurate meaning, is where the land is 'any kind of tenure agreed upon between the parties' The remarks of Farran J. on this point have been approved by a Division Bench of this Court in Yeshwant Vishnu v. Keshavrao Bhaiji I.L.R. (1914) 39 Bom. 316 : 16 Bom. L.R. 252. I think, therefore, I cannot do better than follow Farran J. and give the two meanings to the word 'Fazendari' that I have just detailed.

12. It is interesting to notice that the land which was in question in the suit tried by Farran J. was a piece of land at Bhundarwara Hill, which presumably formed part of the Mazagaon Estate, for Bhandarwady is one of the divisions of that estate, and the map also shows this hill as part of Mazagaon. References to the Bhandarwady part of the estate will be found in Vaidya's Compilation at pages lxix, lxx., etc. In that particular case the occupant Manekbai had taken an indenture of lease under which she was in possession as monthly tenant, and one Canjee Chattoor had become the assignee of the lease under which this Bhandarwady Hill had been granted by Government.

13. Farran J. says (p. 325):

The title of Fazendar as it was used to describe the plaintiff in the case A of Doe d. Dorabji v. Bishop of Bombay (1848) O.C. 498 was quite inapplicable to Canjee Chattoor who held under the leases from Government of which he was assignee.

14. That is certainly in favour of the plaintiff in this case, so far as it is a ruling that the term 'Fazendar' cannot properly in its strict sense be applied to a lessee from Government such as the holder under the lease Exh, B.

15. But I have to consider primarily what was the meaning that can be reasonably put upon the word 'Fazendar' as being within the contemplation of the parties to the agreement Exh. F. and it seems to me quite clear that that meaning must be taken to be the strict meaning which I have already mentioned and not the inaccurate or loose meaning which is opposed to it. In the first place the fact that in Clause 1 the property IB described as being sold and purchased 'for an estate equivalent to an estate in fee simple in possession free from incumbrances' is one that cannot be ignored. The document is one drafted and approved by Bombay solicitors, and the effect of such a description is to introduce the English standard as to the incidents of an estate in fee simple as opposed to lesser estates. These words are not merely taken haphazard from a printed form, as was suggested by Mr. Wadia, but clearly are derived from the description of the property in the title-deeds of the defendant including the first one Exh. 1. The words 'equivalent to' are of course appropriate, because we are here dealing with not an English estate but an Indian estate, and the effect of it is to claim that the estate sold and purchased is one approaching as near as possible to an estate of absolute ownership. I gather that this was conceded by Mr. Wadia for the defendant. On the other hand Clause 6 shows that the fact that there was an annual rent of Rs. 9 or 10 payable to the superior-holder was within the contemplation of the parties, and to that extent the idea of absolute ownership was detracted from. On the other hand, it is equally clear that it was within the contemplation of the parties that the estate should be one of unlimited duration, subject of course to such rights as the right of the Crown to escheat on failure of heirs, and to that extent the analogy of an estate in fee simple is applicable to the case, for unlimited duration is an ordinary incident of such the estate: cf. Halsbury, Vol. XXIV, Article 315, p. 164. And in this particular case we have the word 'perpetual' introduced before 'Fazendari' in Clause 6, so that this unlimited duration was part of the necessary incidents of the estate which was to be sold. It may be here stated that it has been held that to describe an estate as 'nearly equal to a freehold' when it is really leasehold amounts to mere puffing. See Fenton v. Browne (1807) 14 Ves. 144. But this case is on quite a different footing, for here the estate required is not one 'nearly equal to an estate in fee simple' but one 'equivalent to' that estate. Before I leave this particular element of the question, I may refer to the very learned judgment of Sir Michael Westropp, Chief Justice, in Naoroji Beramji v. Rogers (1867) 4 Bom. H.C.R. (O.C.J.) 1. There he refers to the case of Freeman v. Fairlie (1828) 1 M.I.A. 305, in which Lord Lyndhurst held that the English law was applicable in Calcutta and said (p 343):

If, then, we are to apply to it the English law; if the absolute ownership of the soil is possessed by the party, and the English law is in any shape to be applied to it, the party must take a fee-simple, and the property will descend to his heirs.

16. Sir Michael Westropp says that this is an argument quite as applicable to Bombay as it was to Calcutta. This is relevant with regard to the analogy of an estate in fee simple being applied to land in Bombay as denoting almost absolute ownership. This application has been approved in In re Esufali Salebhai : (1908)10BOMLR994 .

17. The next point that may be considered is the position of the occupant of this Plot No. 20. It is of course conceivable that he may have a title to the plot independently of the leaseholder under Government, who calls himself a Fazendar but who can be more properly described as a 'superior holder,' the term used in a. 8 of the City of Bombay Land Revenue Act II of 1876. In this particular case, however, the reference in the defendant's first title deed, Exh. 1, to the plot as being one standing on Fazendari ground of Narayan Vasudev implies, I think, that the title was derived from Narayan Vasudev or his predecessor-in-title ; and it has not been contended, or at any rate it has not been shown, that the title arose independently of this superior holder. There is no evidence as to the actual terms on which this plot was conveyed to the original holder by the superior holder, except the evidence of Abaji Bhaskar. That evidence is certainly in favour of such title being permanent so far as the title conveyed by the superior holder could be permanent, and this may be taken as sufficiently proved for the purposes of this cafe. But the main rule that applies is that Narayen Vasudev, or any predecessor of his, could not give a larger estate than he himself possessed, and that if there is a forfeiture of the superior holder's estate, then that would involve the forfeiture of all the under-leases. On this point reference may be made to Halsbury, Vol. XVIII, Article 1037, p. 531, and to the corresponding law in Section 115 of the Transfer of Property Act. In paragraph 2 of that section an exception is made of cases where the forfeiture of the lease has been procured by the lessor in fraud of the under-lessees or relief against the forfeiture is granted under Section 114; but it is doubtful whether that exception would apply to the lease, Exh. B, in view of the provisions of the Crown Grants Act, 1895. Therefore, under the ordinary law it certainly seems that the right of re entry which Government still has under the lease, Exh. B, is one which does prejudice the duration of the tenure on which the defendant holds this plot No. 20. But the main contention set up by Mr. Wadia for defendant is that this is only a technical objection and that there is no reasonable danger of Government ever exercising their right of re-entry, in view of the fact that Exh. B. contains a covenant for perpetual renewal of the lease on the fame terms subject to the payment of a small fine and the costs of executing the new lease. There is, I think, no doubt, very considerable force in this contention for two reasons. The first is that, having regard to the history of this Mazagaon Estate, the lease granted in 1677, Exh. B, is the lineal descendant of the original farming leases and its effect is to constitute the superior holder such a farmer. It is probable that through some carelessness, in spite of the strict orders of the Court of Directors and the general land revenue policy of the Government to the contrary, the renewal clause was so drafted as to have the effect of allowing perpetual renewal on the came rent, and that the Government thereby lose their ordinary right of enhancing the assessment. But however that may be, supposing the superior holder or lease holder did fail to pay the stipulated rent or did commit a breach of any other covenant of the lease so as to entitle the Government to re-enter, the probability is that, if Government elected to exercise their right of re-entry, they only would do this to the extent of ejecting the particular lease-holder and sub-stituting another. This was the action actually taken in regard to cases of that kind in 1788 and 1793 as stated in Vaidya's Compilation, pages lxx and lxxi. This would be sufficient to enable them in the ordinary case to obtain the rent, the recovery of which is the main reason for the lease, and it would be unnecessary for them to disturb the actual occupants who are referred to in the recitals of Exh. B. in the passage saying that the premises 'were formerly and are now in the occupation of the several under-tenants.' I may also in this connection reter to the analogous case of resumption by Government of an Inam or Saranjam estate, which generally leaves under-tenures undisturbed. See Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) Bom. 112 and Balvant Ramchandra v. Secretary of State I.L.R. (1908) 32 Bom. 432: 10 Bom. L.R. 531.

18. Then, the defendant also relies upon evidence that Government seldom, if ever, exercise the right of resumption in such a case as the present. Some testimony to that effect has been given by Mr. Vaidya, and this contention is to some extent supported by a part of the history of Bombay lands contained in Vaidya's Compilation. For instance, at page xxi a passage is given from the judgment of the Recorder, Sir James Mackintosh, in which he refers to the hardship of enforcing the right of resumption in cases where the Company had suffered an expectation to be created that the exercise of this right would be exceedingly rare. Again, instances are given at pages xxxii and xxxv where, in consideration of similar circumstances, Government did not exercise their right of resumption. Then, again, there is the case at pages lxxv to lxxvii and I xxxii to lxxxiv of lands at Bhandarwady and Collewady, part of this Mazagaon Estate, where, although the lease-holder was got rid of, Government did not disturb the occupants under him but were content to raise the assessment. These are certainly facts which do undoubtedly support Mr. Wadia's contention. But there are considerations which have to be borne in mind and which go the other way.

19. First of all, the lease, Exh. B, is so drawn that it includes in the right of re-entry a right to possession and enjoyment of the demised premises 'together with all the buildings and improvements thereon.' The clause regarding the relinquishment of the property on the expiration of the lease also says that the land is to be given up 'together with all erections and buildings then standing or being there-on'; and there is no provision even for compensation for any improvements effected such as was sometimes inserted in similar documents: cf. pp xxviii and 73 of Vaidya's Compilation. So fur as the lease itself goes, there does not appear to be any restriction on the right of Government to re-enter and to have all sub-leases or sub-grants also forfeited, provided of course the condition precedent exists giving Government that power of re-entry. The fact that ordinarily Government do not insist on their right to re-enter is not of course sufficient to show that the right has been either destroyed or relinquished. Mr. Vaidya himself admitted that there was no resolution of Government in which they had bound themselves not to exercise the right of re-entry. And I may in this connection refer to the Government of India Act VI of 1851, where there was a relinquishment by the East India Company of what is called their 'freehold reversion,' that is, the right of resumption in regard to certain Foras Lands in Bombay. This is mentioned by Sir Michael Westropp in the judgment that I have already referred to (Naoroji Beramji v. Rogers). In that particular case there is actual legislation in order to give legal effect to a relinquishment of this kind and the terms of the compromise that was arrived at between the Government and the occupants of these lands. I, therefore, feel that Mr. Vakil is on firm ground when he contends that this right of resumption still subsists and that it has not been relinquished. The case of Flower v. Hartopp (1843) 6 Beav. 476 is in point as showing that the existence of this right prevents the estate being one equivalent to an estate in fee simple. It is, no doubt, to the interest of the lease-holder to comply with the conditions of his lease, i.e., to pay his rent regularly and do all be can to prevent there being a forfeiture of the lease; but that in itself is not sufficient to prevent the estate being subject to a detrimental condition which affects the question of the duration of the tenure. It is always possible that owing to unforeseen circumstances there might arise, a breach of some covenant of the lease, which would give Government, the right to re-enter. In this connection I may refer to the covenant in Exh. B which requires that the lease-holder shall not during the term of the lease 'make any such disposition of the said land hereby demised or any part thereof as shall have the effect of vesting the same for the said term or any part thereof in other than one and the same party or parties at one time without the previous sanction of the Governor of Bombay in Council for the tine being.' Mr. Vakil contended that that covenant was being broken in regard to the grants made by the lease-holder allowing the occupation of the 118 plots, into which this property has been divided. But I think that this would be giving an unreasonable meaning to this particular covenant. Its origin can with some probability be attributed to the corresponding term contained in the first known grant of this estate by the Portuguese Government. In Vaidya's Compilation, page lxiv, this is summarised as follows:

In any case, the village was not to be sold, exchanged or alienated, without the permission of the King of Portugal or the license of his Viceroy in India.

20. A fuller recital of this particular covenant is given in Naoroji Beramji v. Rogera (1867) 4 B.H.C.R.1, where it is quoted as follows (p. 65):

Which said shall not be lawful to sell, give, or exchange, or in any other way to alienate, without my leave or that of my Viceroy or Governor of India ; nor yet shall it be in the least divided, but shall go always entire in one only person, who shall himself cultivate, and take the uses and fruits it may produce, as his own property.

21. And it was contended by the East India Company that there had been an actual breach of this condition which entitled them, as successors of the Portuguese Government, to obtain the estate. This is mentioned in the last paragraph of page lxvi of Vaidya's Compilation. The covenant in question cannot, I think, reasonably be intended to prevent the letting out of plots to under-tenants, first of all, because these under-tenants are referred to in the lease and therefore may be said to be recognised by Government, and, secondly, because that is the only way in which the lease-holder can obtain profits from the land and recuperate himself for the rent he has to pay to Government. The main object of this covenant seems to be that Government should not have to look to more than one lease-holder or set of lease-holders, and that the right of the lease-holder should not be partitioned up or assigned to different persons by different documents. So I put out of account any breach of the kind suggested as increasing the probability of Government exercising the right of resumption.

22. But there is this further point to be considered that, though the Government may not actually enforce their right of reentry, their power to re-enter is one that puts them into an advantageous position in regard to the occupants, and it might, for instance, be utilised by Government to obtain an enhancement of assessment from the occupants as a condition of allowing them to remain in the occupation of their plots. This is not a point which was mentioned by counsel in the course of the arguments; but it does seem to me to be a point which is very material in the case. This is what has actually happened with regard to the Collewady and Bhandarwady lands in this Mazagaon estate. I have already referred to this and I do not think it necessary to give the whole history in detail. It suffices to refer to pages lxxiv, lxxv, lxxvii, lxxx, lxxxii and lxxxiv of Vaidya's Compilation. This shows that about 1804 the Collector was called upon to report what terms he would be likely to obtain from the occupants for being suffered to retain their occupancies. This report does not appear to have been made at once, but the Collector who for the time managed the lands imposed a tax of 11 reas per square yard on the Collewady lands in 1811 (see pages lxxx, lxxxi). And finally in 1903 the lands were offered to their holders on certain terms (see page lxxxiii), and these terms, with slight modification in one or two cases, were ultimately accepted by the holders. History has a way of repeating itself, and there is a possibility that, though Government might not disturb the occupant of this plot No. 20, be might find that he was called upon to accept a lease for a definite term or at any rate pay a considerably increased amount of rent or assessment, In this connection it is interesting to note that even in the first title-deed of the defendant (Exh. 1) the conveyance is made ''subject nevertheless to the annual ground rent to the said Ftizsndar';-it does not stop there but goes on-'and assessment to Her Majesty's Government of Bombay'. That would rather go against any contention that might be pet up that-to use the language of Section 8 of Bom. Act II of 1876-there is a right in limitation of the right of Government to assess. I may also refer to the well-known case of Shapurji Jivanji v. The Collector of Bombay I.L.R. (1885) 9 Bom. 483 which lays down that strict proof must be given of any right set up in derogation of the inherent right of the Sovereign to assess the land at his discretion; and the fact that a very small rent has been paid for many years, does not show that the Government has forfeited its right to enhance the assessment in respect of such land. And in this particular case it would not (at any rate for some years) be open to the occupant to show that he and his predecessors-in title had paid this small rent for over sixty years The only evidence on this point in this case is that the rent has been paid from 1874, and it would not be till about 1935 or so that the period of sixty years referred to in Article 149 of the Indian Limitation Act would expire.

23. These considerations have led me to the conclusion that, if the word 'Fazendari' in this agreement Exh. F means, as I think it must mean, Fazendari in the strict sense specified by Farran J. in Parmanandas Jivandas v. Ardeshir Framji I.L.R. (1886) 39 Bom. 320: 16 Bom. L.R. 723, the land cannot properly be described as ' perpetual Fazendari.' It could only be applied in the loose sense to which I have already referred. It is no doubt the fact that the term 'Fazendari' has for many years been applied to properties of this kind, and I am certainly not disposed to say that, provided it is intended and understood to be used in this loose sense, its use may not be legitimate. For instance in the case, about which evidence was given, namely, the conveyance to the witness Canjibhai Ailarakia of two plots in Matharpakhadi, the marketable title free from all reasonable doubt, which had to be shown under Clause 4 of the agreement in that case, was sufficiently made out, for in that case the property is only described as 'Fazendari' without any reference to an estate equivalent to an estate in fee simple, and there is the further provision that the purchaser shall not require any further proof about Fazendari than the Fazendar's ground rent bills. In such a case of course there is good ground for saying that the stipulated title is sufficiently deduced from the mere fact that the land was described in bills, etc., as Fazendari.

24. But this is a different case, and I have to judge by the agreement in this particular case, In my opinion what the agreement Exh. F contemplates is, to use the language of Farran J., an indefeasible right to hold in perpetuity on payment of a small quit or ground rent. And the conditions under which the superior holder holds this land are such that that right is not established. Evidence has been given in this case by witnesses whom I may call quasi-expert witnesses, namely, Mr. Kola for the plaintiff and Mr. Vaidya for the defendant I need not go in detail into their evidence. It seems to me that there is no material difference between them. Mr. Kola, for instance, says that 'leasehold' and 'Fazendari' are quite inconsistent terms; while Mr. Vaidya says that 'leasehold' tenure is a distinct tenure recognised by Government, and that it is a distinct tenure from 'Fazendari,' which in his opinion comes under 'pennon and tax;' and it is so shown in his Compilation at page lxxxvii. He there says: 'Closely associated with the Pension and Tax tenure is a kind of sub-tenure known as 'Fazandari'.' Then he goes on to give some details about it. This is supported by the evidence which has been adduced in this case, that these particular Matharpakhadi lands are not classified as 'pension and tax', or under any similar tenure in the Collector's Records, but merely as 'leasehold', and the Collector does not in fact recognise any tenure under the separate name of 'Fazandari'. Though, therefore, I have considerable sympathy for the contention of Mr. Wadia that, in practice, it is very improbable that the occupant of this plot will ever be disturbed by Government, yet the substantial fact remains that he is liable to such disturbance, and also, even if he is not disturbed, to being called upon to pay enhanced assessment; and in view of that liability it seems to me that the defendant has not satisfied the condition of Clause 6 of Exh. F that be shall show that the land agreed to be sold is 'perpetual Fazandari' at a small yearly rent.

25. The result is that I answer Issue No. 4A in the negative.

26. As regards Issue No. 3 the clause about the marketable title free from reasonable doubt is subordinate to Clause 6 regarding the title being of a particular kind; and it is sufficient to say that the defendant has not made out a marketable title of the kind stipulated.

27. The case was then heard on the remaining issues, and ended, on July 2, 1923, in a decree in favour of the plaintiff for Rs. 3,122-2-3.

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