Basil Scott, Kt., C.J.
1. The plaintiffs brought this suit in 1908 to recover possession of land alleging that in 1899 they had been wrongfully deprived of their possession by Raghunath Ramchandra who and the defendants, who derive title' under him, have been in wrongful possession ever since. The defendants pleaded that Raghunath was the owner and that the plaintiffs had been his tenants until they relinquished the property as they could not pay the rent.
2. The learned Subordinate Judge raised four issues: 1st whether before 1899 the plaintiffs held the property under the Swami of Chaphal or under Raghunath Ramchandra 2nd whether the plaintiffs gave up possession voluntarily 3rd whether the defendants were entitled to retain possession against the plaintiffs; and 4th as to the mesne profits recoverable by the plaintiffs. His findings were that the plaintiffs held under the Swami of Chaphal and not under Raghunath; that the plaintiffs did not give up the possession voluntarily and that the defendants were not entitled to retain possession against the plaintiffs.
3. The Assistant Judge, Mr. Ferrers, in appeal reversed the decision of the Subordinate Judge holding that a tenant who could not prove a right of permanent occupancy, which was the plaintiffs' position, could not after eight years recover on the strength of his previous possession. He held that as the plaintiffs had failed to prove title as mirasi tenants they must be presumed to have been tenants from year to year, and that their title being to an annual tenancy had long since expired, for they had withdrawn from the land for eight years. He accordingly allowed the appeal.
4. His decree was set aside by the High Court and the case remanded for trial to the appellate Court on the ground that if the plaintiffs had been in possession as tenants from year to year and the defendants thereafter came into possession by dispossessing them the defendants could only retain possession by showing a better title and that the defendants' evidence a to title must be investigated.
5. The appeal was reheard on remand by the District Judge Mr. Baker who raised four issues as follows: Who have got the occupancy rights to the land 2. Have defendants a better title 3. What is the nature of plaintiffs' possession 4. Whether defendants have wrongfully dispossessed plaintiffs.
6.He held, quoting from the remand judgment, that the dispossession by the defendants appeared to be wrongful as they had not shown a better title than the plaintiffs saying that that disposed of issues 2 and 4 and that ' as regards issues 1 and 3 ' the learned Counsel for respondents says ' plaintiffs do not prove their title and it is not necessary. As their Kaul is not proved there would be some difficulty in doing so. They may be taken to be tenants of the Swami of Chaphal, still they are entitled to possession as against defendants.' He, therefore, dismissed the appeal with costs.
7. The case now comes up for the second time in second appeal.
8. This is a suit based upon title. It is not a possessory suit brought within six months of a wrongful dispossession but a suit against defendants who had been in possession for eight years. The presumption of right arising from possession applies as much to a defendant as to a plaintiff (see Jowala Buksh v. Dharum Singh (1866) 10 M.I.A. 511 and the fact of possession within twelve years of suit will not avail the plaintiff unless it is shown to be such a possession as gives a better title to the land than the defendant can show : see Dharni Kanta v. Gabar Ali (1912) 15 Bom. L.R. 445. To succeed in ejectment it is only necessary for the plaintiff to establish such title as carries a present right to possession. The Assistant Judge, Mr. Ferrers, having found the plaintiffs on failure to prove their title as permanent tenants to be only tenants from year to year thought that so ar as their previous possession was equivalent to title it was a title which was annual only and which for want of renewal had long ceased to be, but he failed to recollect that ordinarily unless there is an express agreement for the expiry of a tenancy on a certain day a tenancy from year to year is only determined by a notice to quit. He found, it is true, that the plaintiffs had withdrawn from the land but that finding for some reason, which does not appear on the remand judgment, was not accepted by the High Court. The District Judge, Mr. Baker, said that the alleged relinquishment of the land by the plaintiffs was to be received with great suspicion but only held that there had been a wrongful dispossession as a legal inference arising from the pronouncement in the remand judgment. It seems to us that upon the admitted facts it would be a reasonable inference that as the plaintiffs had not asserted their right as yearly tenants for eight years they must be taken to have abandoned the tenancy or to have relinquished such other occupancy rights as they might have and if so they would have no present right to possession such as would entitle them to maintain a suit for ejectment. The only cases cited to us as establishing the plaintiffs' right as yearly tenants to maintain ejectment were Doe dem. Hughes v. Dyeball (1829) M& M 346 and Krishnarav Yashvant v. Vasudev Apaji Ghotikar I.L.R. (1884) 8 Bom. 371 in which there was not delay by the tenant in suing the trespasser and therefore no possibility of such an inference as seems to arise in the present case.
9. Counsel for the appellants contends that on the facts found by the District Judge the plaintiffs have no title. It is not disputed that the Inamdar of the land was the Swami of Chaphal and the plaintiffs attempted to prove a permanent lease by the Swami in their favour. The proof failed as the lease was held to be a forgery. The payments made by the plaintiffs for the land while their possession continued are held to have been made either to Ramchandra the Khatedar or to the village officers as assessment and not as rent. These facts, it is contended, show no tenancy by the plaintiffs and prove that the title is and was actually in the Swami. The defendants are entitled to rely on the jus tertii appearing from the facts adduced by the plaintiff to defeat his claim : see Doe dem. Carter v. Barnard (1849) 13 Q.B. 945. Defendants counsel also relies upon Nagle v. Shea (1874) 8 RC.L. 224 in which it was held that the defendant in ejectment might set up and prove jus tertii. Sir Frederick Pol lock, in Pollock and Wright on Possession, p. 98, thinks this case conflicts with Davison v. Gent (1857) 26 L.J. 122. The passage in Bramwell B,'s judgment in that case is not clear owing to the equivocal use of the pronoun ' he' but here at all events the plaintiffs' own case discloses the jus tertii and brings the case within Doe dem. Carter v. Barnard. In this connection we may observe that Jeffries v. Great Western Railway Co. (1856) 5 E.& B. 802 relied upon by the Court in Ali v. Pachubibi (1903) 5 Bom. L.R. 264 to show that a jus tertii cannot be set up in a suit for possession, was an action in trover for chattels.
10. In our opinion the plaintiffs have failed to prove title, that is, a present right to possession of the land in suit.
11. There are, moreover, facts found which show that Raghunath Ramchandra was the plaintiffs' 'superior holder' as that term is defined by the Land Revenue Code, and in that capacity Raghunath Ramchandra got decrees in assistance suits against the plaintiffs in 1899 and 1900 under Section 86 of that Code. It is no answer to say, as does the District Judge, that the decisions were ex parte and the plaintiffs did not appear. These proceedings together with the fact that Raghunath Ramchandra and since him the defendants have been the Khatedars of the lands in suit are evidence of a title in the defendants which must prevail against the failure of the plaintiffs to prove any title.
12. We reverse that decree and dismiss the suit with costs throughout.