1. [His Lordship held that the defendant was not a permanent tenant and then dealt with the plea of adverse possession thus: -] I now turn to the second question which has been raised in this case, and that is that even though the defendants may have been at one time annual tenants, they may have by adverse possession acquired the rights of permanent tenants. The argument proceeds thus. Before the suit in the Mamlatdar's Court in 1898 the defendants asserted their right to hold as permanent tenants. True those rights were not allowed in those judicial proceedings, but the assertion of those rights made it necessary for the plaintiffs to take some action to assert their title and as they did not do so, the possession being adverse for twelve years, ripened into a title by prescription. Now here again the first answer is to be found in the judgment of the lower appellate Court. It is significant, as I have said before, that the appellant's counsel can point to no assertion of adverse title of this nature after the decision in the Mamlatdar's Court, and the Judge has held upon the facts, though he expresses his conclusion in somewhat different language, that the inference really is that the defendants agreed to continue in possession as annual tenants after these decisions by the Mamlatdar for possession. If that is so, there is of course an end of the matter, and here again that is a conclusion which it was open to the 'Judge to draw upon the evidence in the case, and one therefore which cannot properly bo challenged in second appeal.
2. But even supposing that was not so, though no doubt there are decisions of this Court in Budesab v. Hanmanta (1896) I.L.R. 21 Bom. 509 and Thakore Fatesingji v. Bamanji A. Dalal, (1903) 27 Bom. 515 5 Bom. L.R. 274 that a limited interest can be acquired by adverse possession, it will be seen that the facts upon which at least the former of these cases proceeds are very different from the facts now before us. There the tenant successfully resisted an attempt by the landlord to oust him, pleading a permanent tenancy. And it was held, that being so, adverse possession for twelve years of the limited interest thereby set up was sufficient to confer upon the defendant the character which he claimed. But we have not got here facts resembling those. Here there was no successful resistance by the tenants of a claim to recover possession. The matter was the precise contrary. The plaintiffs succeeded, and though the defendants did remain in possession, it is not shown that they remained in possession, in assertion of an adverse title. For no such assertion is proved after the date of the decision in that case. As for the second ease, Thakore Fatesingji v. Bamanji A. Dalal, the facts there were of a special and peculiar nature, and can certainly not form a precedent for the present case.
3. Further with reference to these cases and with reference to the general question it is important to bear in mind the remarks of their Lordships of the Privy Council in Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202 Their Lordships say at page 208 of the report :-
The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesi was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under-proprietor. It is true that the defendant might, if he had chosen, have at once instituted proceedings for a declaratory decree that the plaintiff was not an under-prorietor, but such a course was equally open to the plaintiff. Each party had had his supposed rights judicially challenged by the other, the plaintiff by the notice of ejectment, of which he had obtained cancellation, the defendant by the assertion in the proceedings for cancellation of the notice for ejectment that he was not liable to be ejected because of his rights as under-proprietor.
4. That is very much the case which we have here. Then further on they say (p. 209) :-
They (The Board) are unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the lands. Such a judgment might have very far-reaching results and would almost certainly lead to a flood of litigation.
5. Those remarks are pertinent to the present case, and were affirmed by their Lordships of the Privy Council in Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande (1923) L.R. 50 I.A 255, 25 Bom. L.R 1005 In that case their Lordships say (p. 264):-
the defence of 12 years' adverse possession as permanent tenants is set up by persons who, and their predecessors-in title, always claimed to be and were tenants of service watan lands, and in the opinion of their Lordships neither the defendants nor their predecessors-in-title could have acquired any title to a permanent tenancy in the lands by adverse possession as against the watandars from whom they held the lands.
6. Comment is made upon this that it is a case of watan lands and may depend in some way upon the special statute which governs property of that kind, but in a further case in Nainapillai Marakayar v. Ramanathan Chettiar, their Lordships lay down a far broader proposition. The passage is at page 98, and runs as follows :-
One of the reasons for these consolidated appeals as stated in the case for the appellants is: '4. Because the appellants have acquired permanent occupancy right by prescription,' No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands : see Saundalgekar v. Raghunath Venkatesh (1923) I.R. 50 I.A. 255.
7. Thus the proposition in the second case in Madhavrao v. Raghunath has been given a very wide extension in this latter case. Therefore, apart from the finding of fact of the lower appellate Court to which attention has been drawn, it would appear upon these authorities that no title to a permanent tenancy could have been acquired by prescription in such a case as the present. .
8. It follows that the decree of the lower appellate Court must be affirmed and the appeal dismissed with costs.
Amberson Marten, Kt., C.J.
9. I agree. We have here the advantage of a clear and concise judgment from the learned District Judge with which 1 quite agree. It is unnecessary, therefore, so far as the findings of fact or law are concerned, for me to add anything to what my brother Crump has just stated. But, as regards the second point about prescription in connection with a permanent tenancy, I may state that in the present case we are not called on to decide whether the statement in Nainapillai Marakayar v. Ramanathan Chettiar would necessarily prevent a title by adverse possession being ever obtained to a permanent tenancy in our Presidency. It is sufficient in the present case to apply what their Lordships have laid down in Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202, and to say that applying those principles they would clearly prevent the appellants from successfully establishing their right to a permanent tenancy by adverse possession after 1894 or 1898, having regard to the findings against them by the lower appellate Court.
10. I respectfully agree that the landlord here established his title by judicial proceedings, and that the true inference is that the tenants accepted that position and took their khatas acquiescing in the view that they were annual tenants. That being so, as in my judgment they took their khatas as ordinary annual tenants, prescription would not run in their favour by mere assertions that they were permanent tenants notwithstanding these existing annual tenancies. Nor, indeed as ray brother Crump has pointed out, is there on the evidence any real assertion of their rights as permanent tenants after 1898.
11. Therefore the facts of this case are clearly distinguishable from those of the earlier Bombay authorities, such as Budesab v. Hanmanta, where it was hold that a tenant successfully denying in 1862 the landlord's right to possession could claim that he was holding adversely as permanent tenant to the landlord. Further, as regards the khatas that were passed in the present case, I think there is a broad distinction between them and other cases where an isolated khata has been passed in a long series of years under circumstances pointing otherwise to a permanent tenancy, or where the evidence points to the fact that the tenant who passed the khata did not appreciate the precise significance of the document he was executing. I, accordingly, agree that these appeals should be dismissed with costs.