1. This appeal arises in a suit for a declaration that the suit property consisting of land with buildings thereon was of the absolute ownership of the plaintiffs and defendant No. 2, and for an injunction restraining defendant No. 1, the Government represented by the Secretary of State for India in Council, from taking vacant possession of the land after removal of the superstructures. An alternative relief was also prayed that if it be held that the plaintiffs and defendant No. 2 were in possession of the land under a lease of ninety-nine years, the Government should fix a reasonable amount for rent after the expiry of the lease but not take forcible possession of the same.
2. The land in suit is situated in a prominent locality in the city of Ahmed-abad. Its present survey number is 4663 corresponding to old city survey Nos. 123 and 235 of L. Tikka No. 3 in the Raikhad ward of Ahmedabad city. Its area is 642 square yards. The plaintiffs' case in substance was that this land was taken possession of by their ancestor Jethabhai, who was the head of the family, since the time of the Company's Government more than seventy-five years before the date of the suit, that he erected buildings thereon, and their family had remained in continuous possession and enjoyment of the same. It is stated that the land was open fallow land, that it was not of anyone's ownership or in anyone's possession, that therefore, Jethabhai took it into his possession more than seventy-five years ago and having built houses thereon made it habitable, that the possession of the land and the buildings remained with the family, and that the buildings were let to several persons from time to time. The Government, however, contended some time before the present suit was filed that the land was not of the absolute ownership of the plantiffs but that it was granted to two persons on a lease for ninety-nine years which lease had expired by the end of March, 1930. A notice was given to remove the buildings erected on the land and to put the Government in vacant possession thereof. The plaintiffs had, therefore, to file the present suit after giving notice under Section 80 of the Civil Procedure Code. The plaint then proceeds to state that as the land was of their private ownership, any lease which might have been given to any persons by the Government was not binding on them, that in any case the plaintiffs were in adverse possession of the land for the full period, i.e. of sixty years as against the Government, and their title to the land had, therefore, become complete. For the alternative relief it was alleged that if it be held that the land was granted by the Government on lease for ninety-nine years, the Government were not even then entitled to legal possession of the property, and that the plaintiffs were entitled to remain on the land on payment of a reasonable amount as rent. It was lastly stated that even if the land was given on lease to two Parsi gentlemen, viz. Fardunji Santokji and Fardunji Nawroji, in the year 1831 as stated in the notice, still the plaintiffs came into possession of the land in their own right and that they had acquired title by adverse possession against whoever the real owner was. The cause of action was stated to have arisen at the time when the plaintiffs were alleged to be leaseholders by the Government in the year 1931.
3. In the written-statement, defendant No. 1 contended that the suit was barred under Section 80 of the Civil Procedure Code, and it was also barred under Section 11 of the Revenue Jurisdiction Act as well ate under Articles 14 and 120 of the Indian Limitation Act. On the merits it was pleaded that the suit land was of the ownership of the Government and it was leased in the year 1831 for a period of ninety-nine years. The Government denied that the plaintiffs'' ancestors acquired the suit property seventy-five years ago or at any time, that the period of ninety-nine years for which the land was leased having expired in March, 1930, the Government are entitled to take possession of the land, and that as the plaintiffs came on the land which was given on lease in the year 1831, the lease is binding on them. It is further contended that there was a City Survey Enquiry in 1923, and it was there held that the land was of a leasehold tenure for ninety-nine years, that the plaintiffs had no right to compel the Government to renew the lease and they were, therefore, bound to vacate it as the Government did not desire to renew it. It was lastly contended that the plaintiffs had not paid the proper court-fees and they were not, therefore, entitled to the reliefs claimed.
4. Defendant No. 2 is a member of the same family as the plaintiffs and he supports the plaintiffs' case. I will, therefore, include him in the category of the plaintiffs and henceforth describe the Government as the defendant in the case.
5. On these pleadings the learned trial Judge framed several issues. Issues Nos. 1, 2 and 3 were preliminary issues under Section 80 of the Civil Procedure Code as well as Section 11 of the Revenue Jurisdiction Act and Articles 14 and 120 of the Indian Limitation Act. Issues Nos. 4 and 5 dealt with the merits of the case. They were whether the plaintiffs had proved their alleged ownership of the suit land either by title or by adverse possession, and whether the suit land was held from Government under a lease for ninety-nine years, whether the lease had expired and whether the lease was or was not binding on the plaintiffs. The findings on these issues were that the notice given by the plaintiffs under Section 80 of the Civil Procedure Code was proper and sufficient and the suit was not barred under that section. It was also not barred under Section 11 of the Revenue Jurisdiction Act as well as under the Indian Limitation Act. On the merits, the learned Judge's findings are that the plaintiffs' title was not proved, but their long possession otherwise than under the alleged lease was proved. The finding on the lease was that there was no lease as alleged by the Government, nor any lease whatever in regard to the suit land, that the plaintiffs were in possession independently of any lease, and that being so, the other parts of the fifth issue did not arise. The sixth issue was whether the plaintiffs had the right to compel the Government to renew the lease or to sell the occupancy rights to them for such price as may be iked by the Court. The learned Judge did not make any finding on that issue as in his opinion it did not survive in view of the findings on the fourth and the fifth issues. There was an issue with regard to the court-fees, and the learned Judge held that no additional court-fees were necessary for the alternative relief. He held that defendant No. 2 was a necessary party, and that the plaintiffs were entitled to the reliefs awarded in the order. The reliefs given by the learned Judge were a declaration in favour of the plaintiffs that they were not the lessees of the suit land as alleged by the Government and that they were entitled to continue in possession and enjoyment of it without being liable to make any payment in regard to it either as rent or otherwise, and an injunction that the Government were permanently restrained from dispossessing the plaintiffs of the suit land or from interfering with or obstructing in any manner whatever their possession and enjoyment of the same.
6. It is necessary to note here that although there was an issue about adverse possession, the learned Judge has not made any finding on that issue and has not held that the plaintiffs had acquired title by adverse possession. He has, however, given relief to them on account of their long possession of the land relying on the presumption arising under Section 110 of the Indian Evidence Act, and it is for this reason that the decretal order does not give the relief of absolute ownership which the plaintiffs 'claimed in their plaint, but it is restricted to a declaration that the plaintiffs were entitled to continue in possession and enjoyment of the land without the liability to make any payment. The plaintiffs have not filed cross-objections or appeal on the ground that the relief of a declaration about their absolute ownership of the land should have been granted to them, or that the lower Court ought to have held that they had acquired title by adverse possession.
7. It will appear that the dispute in this case relates only to the land and not to the buildings. It is the case of the Government that the land was given on lease free of rent and that the lessees were entitled to erect buildings thereon. It is conceded by the Government that the plaintiffs' ancestors have built superstructures on the suit land and that the notice was given to recover vacant possession of the land after removal of the superstructures.
8. I may first deal with the question of the plaintiffs' title to the land. The learned Judge has come to the conclusion both on the admission made by the plaintiffs in their plaint as well as on the evidence that they have not succeeded in proving their title to the land. Their own, allegation in the plaint is . that at the time when their ancestor Jethabhai took possession of the land, it was not of anybody's ownership. It is not alleged that the land was acquired by a grant from the Government or by sale from any person. It was sought to be made out during the course of evidence that there might have been some title-deeds of the land in possession of their ancestors, and the suggestion was that those title-deeds might have been destroyed in the fire which took place in their residential house in another part of the city. The learned Judge has not believed that story. Even assuming that there might have been a fire in their house, he has held that it was not proved that there were any title-deeds relating to this land in the possession of the plaintiffs' family or that they had been lost or destroyed in the alleged fire. The learned Judge was, in my opinion, right in coming to the conclusion which he has done about the alleged title of the plaintiffs. They seem to have been conscious of this prominent defect in their case, and have, therefore, not even alleged their original title in the plaint, much less have they succeeded in leading satisfactory evidence to prove that they obtained the land either by a grant from the Government or by private purchase. It is clear, therefore, that the plaintiffs have not succeeded in proving their title.
9. The plaintiffs' case, however, mainly rests upon their long possession, at least from 1870 onwards, there being in that year a document (exhibit 96) relating to the house of a neighbour in which it is stated, while describing its boundaries, that on the west there was the side wall of the bungalow of Jethabhai. Their contention is that having regard to the long period during which the plaintiffs were in possession of the land with its superstructures which they had built on it, it must be presumed that the land must be of their ownership. The learned Judge has rightly refused to make the presumption of absolute ownership based on title from their long possession, and he has confined the relief only to the plaintiffs' right to remain in possession although their title had not been proved. For that he relies upon Section 110 of the Indian Evidence Act, to which point I shall come later on. The defendant's case was that this land, along with other lands in the same locality, belongs to the Government, that most of those lands were unoccupied at that time, and in order to encourage the development of this prominent site, situated near the main, citadel called Bhadra in the city of Ahmedabad, the Collector gave the lands in this area on leases for, different periods, that the suit land had been given on lease in the year 1831 to two persons, Fardunji Santokji and Fardunji Nowroji, that it was given rent-free and that although superstructures were allowed to be constructed on the same, the land was resumable at the end of that period. The case of the Government further was that two copies of the leases were made, one copy was given to the lessees and the other copy was kept in the Government, record, that a book was maintained containing copies of leases granted to various persons from time to time, and a Patta Register, i.e. a register containing a general description of all leasehold lands, including the names of the persons to whom they were leased, the description of the persons and the time when the leases were to expire, was also maintained in the Government record. From the leases and the other papers a general index of all the lands situated in the different wards of the city was prepared in the year 1882, and several printed copies of that Index Register had been made. In the year 1919 the office of the Collector as well as the office of the City Survey were completely burnt by the mob in the riots which took place in the city of Ahmedabad, and in that fire the original leases as well as the Patta Register, the Enquiry Register and the other records had been completely destroyed. However, several other papers escaped from the fire either because they were at that time produced in the civil Courts or they were kept in the bungalow of the Collector or in the Commissioner's office or in the Land Records Office, and by means of the available record which has remained after the fire the Government have sought to prove that the land was given on lease to the two Parsis mentioned in the General Index Register and that somehow or other the plaintiffs came on the land after it was granted to these two persons. There was an original survey of the Ahmedabad city which was begun first in 1864 and these survey proceedings lasted up to 1881. During that period a number of survey records containing the Survey Register, survey maps, the Patta Register and a number of other records relating to the survey settlement of land in the city were maintained, and thereafter on account of the original record having been destroyed by fire in 1919, a fresh survey was begun in 1921 which was completed in 1923. In that City Survey Enquiry along with other lands, an enquiry was made with regard to the suit land, and the Enquiry Officer decided, after hearing plaintiff No. 3 who represented the other members of the family, that it had been given on lease which was to expire in the year 1930, That decision was not challenged by the plaintiffs although a notice of the decision had been communicated to plaintiff No. 3 and although he himself had obtained copies of the decision in 1924 and 1930. As a result of that enquiry, the Government gave him a sanad in 1930 confirming his occupation of the land up to March 31, 1930, on which date the lease was to expire. The sanad contained a condition that the Government were entitled to resume the land whenever they required it after giving him the value of the superstructures as might be determined by five persons. This sanad was accepted by plaintiff No. 3 without any protest and the original sanad in the Collector's record (exhibit 105) contains an endorsement in his handwriting about receipt of its copy. The sanad was valid only up to March 31, 1930, and thereafter the Government did not wish to continue the lease in the plaintiffs' favour. They gave a notice on October 3, 1931, for eviction of the plaintiffs from the land and for rent in the nature of damages from the period of the expiry of the lease up to the date of handing over its possession to the Government. The plaintiffs did not comply with the notice and filed the present suit on March 31, 1932, for the reliefs mentioned above.
10. On the first issue with regard to the notice under Section 80 of the Civil Procedure Code it is held that the suit is not defective, and I think the learned Judge was right in holding that the notice is not defective under that section. It is contended on behalf of the defendant that the notice, exhibit 29, must state the names, the description as well as the places of residence of the plaintiffs, but it does not give the description of the plaintiffs inasmuch as the surnames, the caste and the occupation of the plaintiffs are not given. Reliance is placed on the decision of their Lordships of the Privy Council in Bhag-chand Dagadusa v. Secretary of State for India I.L.R. (1927) 51 Bom. 725, and it is urged that in that decision the provisions of s, 80 have been held to be mandatory and not admitting of any implications or exceptions In that case no notice had been given at all, and it was held that a notice under Section 80 was required to be given even though the suit may be one for a speedy remedy by way of an injunction. In the present case, however, the notice has been given within the period required by the law, and it does purport to comply substantially with the provisions of that section. The only defect urged is that the descriptions have not been given. It is not stated in the section what kind of description ought to be given of the plaintiffs who desired to file a suit. It would be sufficient if the plaintiffs are described in such a manner that they could be easily identified, and in the present case the fathers' names of all the proposed plaintiffs are given and their places of residence are given. The surnames are not given. But, in my opinion, the surname would not be a necessary part of the description of a person. No authority has been cited to us to show that the surname or the caste or the occupation of the proposed plaintiff must be mentioned in the notice, and I think that the notice substantially complies with the provisions of Section 80 of the Civil Procedure Code, and the suit, therefore, is not barred on that ground.
11. The next point relates to the applicability of Section 11 of the Bombay Revenue Jurisdiction Act. That section provides :-
No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue-officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.
12. The question is whether the notice,, exhibit 28, given by the Collector is an act or omission of a revenue officer as stated in this section. The reference to the appeals which should be filed under the provisions of the law for the time being in force relates to the provisions of Sections 203 and 204 of the Land Revenue Code. Section 203 says that-
In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie! from any decision or order passed by a revenue officer under this Act, or any other law for the time being in force, to that officer's immediate superior,...
13. If the notice, exhibit 28, given by the Government to the plaintiffs is a decision or order coming within this section, it is clear that the plaintiffs ought to have appealed against that decision or order, and if they did not so appeal, the suit would come within the provisions of Section 11 of the Revenue Jurisdiction Act. It is, therefore, to be seen whether the notice, exhibit 28, is a decision or order within the meaning of that expression in Section 203. That notice, which is given on October 3, 1931, begins by stating that the land was of the ownership of the Government, that it had been leased to the plaintiffs' predecessor in March, 1831, for a period of ninety-nine years which expired in March, 1930, that on the expiry of that period the Government were entitled to its vacant possession and that the plaintiffs were called upon to give such possession but under some pretext or another they had failed in doing so, that under those circumstances the formal notice was given to the plaintiffs, and they were called upon to give vacant possession of the land after removal of the superstructures within two months of the date of the receipt of the notice and to pay rent to Government at a certain rate from, the date of the expiry of the lease up to the date of the handing over of the possession. It is lastly stated that if the plaintiffs failed to act as directed, the Government without any further notice would take such steps as might be necessary to take over the possession of the land and also to recover the amount of the rent from the plaintiffs.
14. Now, the lower Court says that this notice, exhibit 28, is not a decision or an order of the Government but that it is in the nature of a landlord's notice to a tenant holding over, and the remedy of the Government was, therefore, to file an ordinary suit for possession but not to issue a summary order of eviction as contemplated in the notice. The lower Court further says that there was no enquiry preceding the giving of the notice and that the notice does not purport to be given under Section 202 of the Land Revenue Code, and moreover, if the plaintiffs succeeded in proving title to the land, the notice would be ultra vires and invalid. The same argument has been urged before us by the learned counsel for the plaintiffs. According to him, this notice is not under Section 202 and cannot, therefore, amount to an order.
15. Now, Section 202 says that-
Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be made in the following manner, viz. :-
by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land, and,
if such notice is not obeyed by removing or deputing a subordinate to remove any person who mayi refuse to vacate the same,...
16. It is clear to my mind that Government can pass an order for eviction of a person who is wrongfully in possession of land by giving him the notice as prescribed in this section. That notice in fact amounts to a decision or order of the Government to evict the person who is in such wrongful possession. There is no provision in the Land Revenue Code that before the notice under Section 202 is given, the Government should actually pass an order and communicate that order to the party concerned before giving such notice. It is open to the Government to pass an order in the form of a notice, and as provided by this section to) serve it on the party concerned, and if that is done, the Government must be deemed to have complied with the provisions of the Land Revenue Code. It is true that the notice, exhibit 28, does not mention that it is given under Section 202 of the Land Revenue Code, but, in my opinion, it is quite clear on its wording that it could not have been given under any other provision of law except Section 202. The wording is very much similar to the provisions of that section. There is no doubt that the Government possess larger powers than those of a private landlord. A private landlord has no power to summarily evict a tenant who is holding over. The Government have, however, the power to do so under various sections of the Land Revenue Code, such as Sections 61, 66 and 79A of the Land Revenue Code, and at the termination of the period for which a particular land might have been granted by the Government to any person, it is open to the Government to give him a notice to vacate it on the expiry of the period, and if the holder still remains in possession after its expiry, he must be deemed to be holding the land in wrongful possession. That being so, the Government would be entitled to give a notice as required by Section 202 of the Land Revenue Code.
17. Section 61, under which the power of summary eviction can be enforced, says that-
Any person who shall unauthorizedly enter upon occupation of any land set apart for any special purpose, or any unoccupied land which haa not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled shall,...
pay the assessment of the entire number for the whole period of his unauthorized occupation, and,...The person unauthorizedly occupying any such land may be summarily evicted by the Collector, and any crop raised in the land shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture, or to summary removal,
18. If, therefore, the plaintiffs had remained on this land after they had ceased to be entitled to do so under any of the provisions of this Act, then clearly the Government were entitled to adopt the remedy of summary eviction under this section.
19. The next question is whether the plaintiffs' right can be said to have ceased to exist at the time when this notice was given by the Government. According to the Government, the plaintiffs were occupying as lessees, and on the termination of the lease in March, 1930, their right to occupy the land had ceased to exist. It is provided in Section 68 of the Land Revenue Code that -
An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land, in perpetuity... according to the provisions of this Act,.,, and on the fulfilment of any other terms or conditions lawfully annexed to! his tenure :
20. Then there is an important proviso to this section which runs as follows :-
Provided that nothing in this or any either section shall make it, or shall be deemed ever to have made it, unlawful for the Collector at any time to grant permission to any person to occupy any unalienated unoccupied land, for such period and on such conditions as he may, subject to rules made by the Provincial Government in this behalf, prescribe, and in any such case the occupancy shall, whether a survey settlement has been extended to the land or not, be) held only for the period and subject to the conditions so prescribed.
21. The combined effect of Sections 61, 68 and 202, therefore, is that the Government have the power before as well as after the enactment of the Land Revenue Code to grant lands to occupants on certain terms and conditions, that if a grant was made for a certain period, the Government would be entitled to resume the land at the expiration of that period, that any occupation of the land thereafter would be a wrongful occupation for which the holder would be liable to summary eviction, and if the Government decide to evict such person they can do so by giving him a notice under Section 202. That notice, therefore, amounts to a decision or order of the Government to evict the person who is in occupation of the land after his right has ceased to exist. The notice is not, in my opinion, a mere communication to hand over pos- session, but it is a decision that the plaintiffs are bound to hand over possession of the land. It is expressly stated in the notice, exhibit 28, that no further order was contemplated, and the steps which were mentioned in the notice could not be anything else except summary eviction under Section 61. Such a notice is, as observed in Bhavanishankar v. Talukdari Settlement Officer : (1914)16BOMLR766 . requiring him to vacate certain land, the first act in the process of eviction. There is a decision of our Court bearing on this point in Bhikhabhai Doolabhjee v. Secretary of State for India,(2) There the point was also under Section 11 of the Revenue Jurisdiction Act and a notice was given under Section 202, It was held that it amounted to an order, that it took the form of a notice under that section directing the plaintiff-appellant to vacate the land, and that, therefore, Section 11 of the Revenue Jurisdiction Act applied, and as no appeal was preferred, the suit was barred. In Dayal v. Secretary of State : (1920)22BOMLR1089 there were two orders of the Collector. There was no appeal against the first order, and thereafter an intimation was given to the party in the form of ai notice. It was held that the notice amounted to an order, and therefore, the suit was barred under Section 11 of the Revenue Jurisdiction Act, The plaintiffs rely upon a decision in Nathuram Hiraram v. The Secretary of State for India I.L.R. (1921) 46 Bom. 811 but that decision does not apply to the facts of the present case. The notice of demand there for the amount due as land revenue was not regarded as an order or decision appealable under Section 203. The notice was not for eviction, and did not, therefore, purport to be under Section 202. Moreover, no order of the Collector was produced, no opportunity was given to the plaintiffs to put forward their case, and such notice was not regarded on the special facts of that case as appealable.
22. It is, however, urged on behalf of the plaintiffs on the authority of certain decisions that the order incorporated in this notice, exhibit 28, was invalid and ultra vires, and it was not, therefore, necessary to appeal against it. This argument is advanced by applying the analogy of the decisions under Article 14 of the Indian Limitation Act in which it is held that no suit was required to be brought to set aside an order which was illegal or ultra vires. There are various answers to this contention. If the lease relied upon by the Government is proved, there is no doubt that the order is not only intra vires but good on the merits. Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs' ancestor, the presumption under Section 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession in the past, though without any rightful title in them, Government had the right to assert their ownership which had not been divested by the act of the plaintiffs' ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government. The giving of the notice, therefore, cannot be regarded as invalid or ultra vires.
23. Even if the lease relied on by the Government could not be proved in a Court of law, the Government had definite materials in their possession from which they might reasonably conclude that the plaintiffs had no right to occupy the land after March, 1931. It may at the most be an incorrect order liable to be set aside on appeal to the Commissioner. But it cannot be said that because it was incorrect, it was also invalid or illegal in law. The Collector has the jurisdiction to pass the order, and he had also prima facie grounds for doing so. This is not, therefore, a case where the order is vitiated by want of power, excess of jurisdiction or any other illegality. I am not convinced that the analogy of the authorities under Article 14 of the Indian Limitation Act could be applied to Section 11 of the Revenue Jurisdiction Act. The Limitation Act deals with the limitation of the period for bringing a suit. Section 11 refers to the bar toi the institution of a suit if no appeals had been preferred to the higher revenue authorities. But even if the analogy does apply, those authorities are not applicable if the present order is neither invalid nor ultra vires. The principal authorities relied upon on behalf of the plaintiffs are Laxmanrao Madkavrao v. Shriniwas Lingo Anant Nulkar v. Secretary of State (1930) 33 Bom. L.R. 213 Rasulkhan v. The Secretary of State : AIR1915Bom72 , Secretary of State v. Gulam Rusul (1916) 18 Bom. L.R. 243, Dhanji v. The Secretory of State I.L.R. (1920) 45 Bom. 920 Surannmna v. Secretary of State for India I.L.R. (1900) 24 Bom. 435 and Secretary of State) v. Faredoon (1934) 36 Born. L.R. 761. It is not necessary to deal with these cases individually. It is sufficient to observe that they are all cases either of want or excess of jurisdiction, absence of prima facie right of the Government, or proof of prima facie title of the plaintiff, or the order being either merely administrative or incomplete. In the present case even if the Government may be unable to prove their case of lease on the ground that the documents relied upon were not admissible in evidence, they afforded prima facie materials on which they were entitled to act. Those materials cannot be challenged as spurious or fabricated. Even if they be taken as negligently prepared, that would be a matter of proof, and would not affect the power of the Collector to act upon them. In my opinion, therefore, the decision or order in exhibit 28 required to be appealed against under Section 203 of the Land Revenue Code, and the non-prosecution of the appeals is a bar to the maintainability of the present suit under Section 11 of the Revenue Jurisdiction Act.
24. I have observed above that if the Government had prima falcie materials for the case of the lease, then the act of the Government officers would not be ultra vires. It is, therefore, necessary to deal with those materials at the present stage to examine whether those documents establish the Government's case of the land having been given on lease for a period of ninety-nine years. The earliest document relied upon by the Government is exhibit 136 including exhibit 136A, both of which are the upper and lower parts of a page in a bound book containing copies of leases given to various persons from time to time. This document purports to be a copy of the lease of the land in suit and it is produced with the list exhibit 113 along with the bound book. The lower Court has held that although this is a leather-bound book and is undoubtedly very old and coming from Government custody, it is not admissible in evidence inasmuch as it is not shown under which provision of law these copies were maintained and inasmuch as the book is not signed by anybody and it is not proved who had made those copies from the original documents. The learned Judge refers to exhibit 136 as the Patta Register, but that is obviously a mistake. The evidence shows that the Patta Register is different from this book containing leases. Nevertheless the question is whether this copy is admissible in evidence and whether it could be relied upon in proof of the lease. There does not appear to be any provision of law, nor has any such been cited before us, that it was incumbent on the Government to maintain copies of the leases. It is said that the leases were kept in counter parts and that all the leases which were in possession of the Government have been copied in this book till the year '1849. That may be so, but it is difficult to see how this book by itself can be regarded as admissible in evidence without any proof that it was required to be kept and maintained under the law. It appears that this book was not produced during the City Survey Enquiry. It seems to have been seen by the witnesses after 1924. The book is in a torn and tattered condition in many places and although it is stated that it had been produced in one or two earlier litigations, there is nothing to show whether it had been relied upon in those cases. It is not suggested at all that this book had been got up. But unless it is proved that it is a public document and not merely a record copy for the private use of Government officers, it cannot be admitted in evidence as a public document under Section 74 of the Indian Evidence Act. It is not shown whether it was the duty of the Government to maintain those copies of the leases. That being so, I think that this book may be left out of account in considering the case of the lease.
25. The next documents on which the Government rely are exhibits 123 and 144. They are two copies of one and the same printed book containing the general index of lands given on lease in the city of Ahmedabad with certain particulars and maps of the survey numbers situated in the different wards of the city. The case for the Government is that during the first City Survey Enquiry, which lasted from 1864 to 1881, various books such as the enquiry register, field books, old maps and Patta Registers were prepared and these books constituted the City Survey record. From these books the general index registers, which were known as atlases, were also prepared evidently for the purpose of ready reference. These registers contained maps or atlases of the various wards of the city together with the index of the lands which had been given on lease to different persons. The Patta Register, which was separately maintained, contained the description of the persons to whom the lands were given, the area of the lands and also the period when the leases would terminate. But that was different frorn the book containing copies of leases from which exhibits 136 and 136A were taken. The latter contained copies of leases up to about 1849 only while the Patta Register was maintained for the subsequent period also. The general index register contained indexes of lands and it is different from the Patta Register. This general index was continued up to about 1890. Thereafter it was printed and several printed copies with plans or atlases as they are called were distributed to the different Government departments and one such copy was supplied to the Ahmedabad Municipality. At the end of the printed book appears to be the printed signature of ' R. S. Jayakar, Deputy Collector and Inquiry Officer, Ahmedabad'. Exhibit 123 is an extract relating to the suit land from one of these printed copies, and exhibit 144 is a printed copy of the book which was supplied to the Ahmedabad Municipality. The difference between these two exhibits is only this that while in exhibit 123 the plan containing the suit land has not been coloured, in exhibit 144 it has been coloured by the Municipality by putting different colours on what were considered to be leasehold lands. The case of the Government is that the Patta Register as well as the original of the general index from which the books were printed were, along with other original survey records, in the City Survey Office which was burnt in the riots of 1919. These two printed books, however, were not in the City Survey Office at that time and they escaped the fire. The principal witness who deposes to this is Chunilal, exhibit 140, who was a maintenance surveyor serving in the City Survey Office from 1911. He retired in 1932. He deposes that he had seen the original of the general index in his office. By original is meant the general index itself before it was sent for printing to Poona. He had also seen the original maps, and he says that exhibit 123 is a copy of the original general index seen by him. This printed book along with the wall maps, exhibits 134 and 135, was before the officer who conducted the City Survey Enquiry in 1923.
26. The relevant entry in these two exhibits relating to the suit land states that it was Government land given to two persons Ferdunji Santokji and Fardunji Nowroji by a document of lease on January 31, 1831. The month 'January' is erased and substituted by the month of 'March'. The periods of the lease of the lands are not mentioned. These two books being the same, I will deal with one of them, exhibit 144, as the learned Judge has done. He holds that the original index register, meaning thereby the index register from which these printed copies have been made, is a public record and therefore governed by Section 35 of the Indian Evidence Act, but the printed copies of the general index, which are produced in this case, are not admissible because they are not properly proved as secondary evidence of the original general index. For holding that the original general index is a public record and admissible in evidence, he relies upon the decision of this Court in Hiralal v. Secretary of State (1930) 33 Bom. L.R. 828 where the dispute was about another land in a different area in the same city of Ahmedabad, and in which one of the printed copies like those which we have here, viz. exhibits 123 and 144, was produced and an extract from that book was admitted in evidence by the trial Court and relied upon by it as well as by this Court for holding that the land in dispute there was of leasehold tenure. The learned Judge, however, is under a misapprehension in thinking that what was produced in that case was the original index register itself and not a printed copy of the same. He says so because he thinks that the judgments of this Court contain no discussion as to whether the printed copy was admissible. That, however, is not the case when the judgments are properly read. Patkar J. observes (p. 830) :-
It appears that the original survey records having been destroyed by fire at Ahmedabad, there are no satisfactory official records of title to the property. The general index, Exhibit 64, which has been saved from fire, shows that the land survey No. 466 belongs to Government.
27. He further says (p. 831) :
I think that Exhibit 64, the index of the register, is a public document and is admissible in evidence under Section 35 of the Indian Evidence Act.
28. Barlee J. observes (p. 836) :-
The evidence led is meagre, as Government were met by the difficulty that their records had been destroyed by fire during the riots of 1919, and they were unable to produce either the counter-part or a copy of the original lease. But they produced Exhibit 64, which purports to be an extract from the general index of Sheet No. 1 of the map of the city of Ahmedabad.
29. And further he says (p. 837) :-
This document has been assailed by the learned counsel for the plaintiffs-appellants on the ground that it is inadmissible in evidence, since it has not been proved that it is a public document; secondly, because it contains an admission on behalf of the party producing it. But there can be very little doubt that it was a public document and admissible in evidence. The copy filed in Court does not bear any official seal, or signature, but the Government officer, who produced the copy with the original index, deposed that it was an old Government record. I think it is really beyond dispute that it is a part of the record of the survey of the city of Ahmedabad ; and as such it is a public document.
30. What was meant by the words ' copy with the original index is that a copy of an extract from the printed book along with the printed book itself from which the copy was made. The suit out of which that appeal arose was filed in 1925 and as the fire took place in 1919, the original index from which printed copies were made could not obviously be before the Court. What. was before the Court was a printed book such as we have here, and it was that book which was held admissible in evidence as a public document itself, and not as a copy of another public document. This misapprehension on the part of the learned Judge below has vitiated his entire reasoning on this point, because although he rightly says that he is bound to follow the ruling in Hiralal v. Secretary of State, he thinks that the printed book is not admissible except as secondary evidence, and it is not so admissible because it does not satisfy the provisions of Section 63 of the Indian Evidence Act relating to that particular type of evidence.
31. In my opinion, the printed copy of the index register is itself a public document. These printed copies are not merely kept for the private use of Government officers, but they are open to inspection by the public and certified copies are also supplied from them. Witness Chaturbhai, exhibit 154, who is a surveyor, says in his evidence that certified copies of the record of old and new city surveys are given to those who apply for them, that the whole combined sheet map is sold for Rs. 5 for the new city survey, that copies of the index register and maps of the old city survey are also supplied, that inspection is also allowed of the record and the maps, and that this is done according to rules Nos. 135 and 136 made under the Land Revenue Code. Witness Chunilal also says that certified copies of the maps on the record are given to any one who applies for the same. So also witness Krishnalal. There is no reason at all to doubt the testimony of these witnesses who were all Government servants and depose from their personal knowledge. In my opinion, the printed books must themselves be regarded as public documents and as such admissible in evidence. They are coming from proper custody and they were rightly relied upon by the trial Court as well as by this Court in Hiralal's case.
32. Even assuming, however, that they can be admitted only as secondary evidence of the original index, there is the presumption under Section 114 of the Indian Evidence Act that the copies were compared with the original index at the time when they were printed and that they, therefore, fulfil the provisions of Section 63, Clause (3), of the Indian Evidence Act. Printed records of enquiry have been held to be admissible in evidence : vide Lekraj Kuar v. Mahpal Singh : Raghubans Kuar v. Mahpal Singh (1879) LL.R. 5 Cal. 744 and copies made from untidy papers are also regarded as admissible : see Mr. William Graham v. Phanindra Nath Mitra (1915) 19 C.W.N. 1038. There is no doubt that these records were required to be kept under the law for the time being in force. Sections 5 and 13 of Bombay Act IV of 1868 deal with the preparation of maps and land registers and other records during the survey proceedings. That Act of 1868 related to the application of the Bombay Survey and Settlement Act I of 1865 to towns and cities. The general index was prepared from the documents which were required to be kept under the law. Section 108 of the present Land Revenue Code also requires the maintenance of the settlement registers and other records pertaining to the survey. Moreover, there is a Government Resolution of 1882, exhibit 122 in the present case, which sanctioned the printing of maps in the form of atlases, and there is evidence to show that the maps printed in exhibit 144 were regarded as atlases for the various wards of the city of Ahmeda-bad. Rule 104 of the rules under the Land Revenue Code also pertains to the records of the survey papers being maintained at the time of the survey. There is no doubt, therefore, that this document is compiled from the other documents which were required to be maintained under the provisions of law, and is, therefore, itself a public document. In a recent decision of this Court in Mallappa Annasaheb v. Tukko Nmashinha  Bom. 464 s.c. (1936) 39 Bom. L.R. 288, there was a document which was mentioned in what was described as a register or takta of information regarding the pargana watandars, prepared by the Assistant Collector under the directions given by the Collector under the orders of the Inam Committee. That register or takta was not in original but a copy of the original takta was produced. It was contended that it was not a public document and could not be proved by a certified copy. But that contention was negatived and it was held that the copy came within the definition of a public document in Section 74 as it was a record of the acts of a public officer, and it was relevant under Section 35 or at any rate Section 13 of the Indian Evidence Act. In my opinion, the same could be said of exhibits 123 and 144. They are rele vant under Section 13 as well as Section 35 of the Indian Evidence Act, and I think therefore, that they are admissible in evidence.
33. The lower Court rejects these documents, firstly, on the ground that exhibit 144 was a copy of a copy in print and it is not certified to be correct by a Government officer, that it bore no seal and that it was incomplete. In my opinion, this exhibit cannot be rejected on that ground. It is a printed book from the original general index, and if the original index was relevant and admissible in evidence as the learned Judge himself takes it to be, I do not see why the printed copy, which has been maintained and acted upon for several years and which is maintained as a public document from which the public have been supplied with copies, should not be regairded as a public document by itself and as such admissible in evdence. The printed signature of Mr, R. S. Jayakar, Deputy Collector, must also be presumed to be genuine, and it must be taken as showing that the register was prepared by a Government officer from the materials which the Government had before it at that time. I may state here that the plaintiff himself had applied for a, copy of the entry with regard to the suit land in exhibit 144 and presumably was supplied with the same. Exhibit 158 is the application of February 13, 1930, for a copy of the decision of the Enquiry Officer in 1923 as well as the decision of the Enquiry Officer at the time of the old enquiry showing the nature of the land. That old enquiry could have reference only to the survey proceedings which terminated in about 1882 as a result of which this land was entered as a leasehold land in the register. In my opinion, therefore, this document is admissible in evidence for the purpose of proving the defendant's case of the suit land being of a leasehold tenure.
34. The documents next relied upon by the Government are two wall maps, exhibits 134 and 135. These two are printed maps of the different wards of the city of Ahmedabad. Exhibit 134 is a map which comes from the Commissioner's office while exhibit 135 is a map which comes from the Collector's private office. They are both printed maps from one and the same original map which seems to have been prepared at some date between 1912 and 1915. They are coloured with different colours. In exhibit 134, which is known as the Commissioner's map, the survey numbers are coloured differently to show the different kinds of lands, viz. Government lands, Government lands leased for ninety-nine years, Government lands reserved and finally the lands with years in red showing old leases expiring in the years mentioned and not renewable. In exhibit 135 the colours are applied only to leasehold lands and different colours are applied to different leases expiring at different periods. The colour brown is applied to those lands the leases of which were to expire between 1926 and 1930, and the suit land is coloured brown in this map, exhibit 135. The learned Judge holds these maps, as admissible in evidence under Section 83 of the Indian Evidence Act, and there is no doubt that they are so admissible not only under Section 83 but also under Sections 36 and 87 of the Indian Evidence Act as well as Section 213 of the Land Revenue Code. The learned Judge, however, says that although the maps are admissible in evidence, the colouring of the maps is not so admissible because it had not been satisfactorily proved as to why the maps were coloured, by whom they were coloured and for what purpose they were coloured. The learned Judge does refer to the evidence of witness Chunilal on that point who says that he himself did the colouring under the orders of the then Collector Mr. H. L. Painter. The learned Judge says that this witness Chunilal was in the City Survey Office for a long time, but that it is difficult to believe that he had seen the original index himself and that the maps were coloured by him under the directions of the Collector. One ground for disbelieving this witness is that whereas in his examination-in-chief this witness says that he coloured the original map, in cross-examination he turns round and says that he coloured the printed copies of the original after the prints were received and not the original document. He describes this witness as over enthusiastic who had come to fill in the lacuna in the evidence of the other -witnesses. Although the appreciation of oral evidence by the trial Judge is entitled to great weight by the appellate Court, that appreciation must be tested by the other proved facts in the case, especially if the evidence is substantially corroborated by those facts.
35. Taking the Collector's map, exhibit 135, it is quite clear that there is a type-written direction with regard to the survey numbers shown in that map under the signature of the then Collector, Mr. Painter. In that direction various survey numbers are given serial numbers and then it is stated among other things that the cases serial Nos. 91 and 92 and Nos. 93 to 99, which were leasehold lands, would provide sites for public offices which were sure to be needed in this locality. At the upper comer in the plan various periods of the leasehold lands have been indicated. The colour yellow is shown to denote lands the leases of which were to expire between 1916 and 1920, the colour green for leases expiring between 1921 and 1925, the colour brown for those expiring between 1926 and 19310, the colour red for those expiring between 1931 and 1935 and the colour blue for those expiring between 1936 and 1940. The suit land, as stated above, is coloured brown to show that the lease was to expire between 1926 and. 1930. At the bottom of this endorsement are the initials of Mr. Painter made in April, 1916.
36. [After dealing with the evidence of Chunilal at length, the judgment continued :] In my opinion, exhibits 134 and 135 are not only admissible in evidence but they can be-especially exhibit 135 can be-relied upon in proof of the fact that the land is a leasehold land the lease of which was going to expire in 1930.
37. I may state here that the map in the general index, exhibit 144, has been coloured by some officer in the Ahmedabad Municipality. There is no evidence to show as to who made that colouring and on what materials, and I do not, therefore, take that into consideration in arriving at any conclusion with regard to this theory of lease.
38. In my opinion, exhibits 123 and 144 on the one hand and exhibits 134 and 135 on the other along with the evidence of witnesses Chunilal and Chaturbhai do go to show that the suit land must have been given on lease and the period of the lease was ninety-nine years expiring in about March, 1930.
39. [After further discussion of evidence, the judgment went on :] On this evidence, it is, in my opinion, satisfactorily proved by the defendant on the materials which the Government possessed after the fire of 1919 that the suit land was of leasehold tenure and that the lease was to expire in March, 1930. That conclusion, to my mind, is corroborated by the other circumstances in the case. Those circumstances are that the plaintiff himself, as I stated before, has not been able to prove his title at all with regard to the suit land, and the conduct of Gajanan from the time he came into possession of this land till now would clearly show that he has not challenged the character of the land being leasehold land. I might say further in this connection that not only did Gajanan not protest after he received the notice of the City Enquiry Officer's decision and got a certified copy of his order, but in 1930 when Government offered him a sanad confirming his possession up to March 31, 1930, the date of the expiry of the lease, with the condition to resume the land whenever Government required it, Gajanan accepted the sanad without any protest whatever. For nearly a year after he got a copy of the sanad he did not do anything and it was only after the Government gave the notice in October, 1931, that the present suit was filed in 1932 for a declaration that the land was of the plaintiffs' absolute ownership.
40. It is relevant in this case to note that the suit land is situated in a very prominent locality in the city of Ahmedabad, and if the plaintiffs were in possession of this land without any title whatever and merely as trespassers throughout, the Government would certainly have taken steps to see that they were ousted from, the land. This is not a land in any out-of-the way place where the usurpation of Government land by a private person would escape the notice of Government officers, and if the Government did not take any steps, it must be because the plaintiffs were enjoying the land by virtue of some grant or sanad from the Government. That would be either the plaintiffs' own direct title from the Government or in the nature of| a grant for a particular period. The plaintiffs' title is distinctly disproved, and the only alternative that can, therefore, remain is that the land must have been enjoyed by the plaintiffs under a conditional grant from the Government. It is, however, contended on behalf of the plaintiffs that even assuming that there was a grant, there is no satisfactory evidence to show that it is a lease terminable at the end of ninety-nine years, and that it must be presumed that in absence of anything else the grant must be in the nature of a permanent lease as buildings and structures have been allowed to be erected on this land. Now, it is true that from 1870 onwards there have been some superstructures on this land, they have been let from time to time by the plaintiffs and in one case the Government themselves had taken a building on rent for one of its-offices. If the grant had been merely a grant of the land without anything else, then the presumption may arise that it was a grant for building purposes. But there is the evidence of the map, exhibit 135, and the decision of the City Survey Officer in 1923 would, in my opinion, clearly establish that the suit land was not only of a leasehold nature but the lease was only limited to the period of ninety-nine years expiring in March, 1930. It is not the case that a lease for ninety-nine years could not have been granted by the Government at all. There is in evidence one document, exhibit 185, which is a counter-part of an original lease granted to another person, and that is a rent-free lease for ninety-nine years such as the lease in the present case is and the map also shows that the lands in the locality had also been given on leasehold tenure. There was nothing extraordinary, therefore, if this land had been granted on lease for a period of ninety-nine years. There is nothing to show that the Collector had not the power to make grants for a definite period in favour of private persons. On the other hand, there are various provisions of law from time to time which would show that the Government had got the power to make dispositions of unoccupied unalienated land to different persons. Section 7 of Bombay Regulation XVII of 1827 gives power to the Government to dispose of unalienated land. This power has been exercised by the Government since then from time to time and the subsequent revenue enactments also have recognised the power of the Government to make grants to various persons. An instance of that is Section 68 of the Land Revenue Code, as I have shown above. In my opinion, therefore, the fact that the buildings are there would not necessarily show that the grant must have been of a permanent nature. I may state here that in Hiralal v. Secretary of State (1930) 33 Bom. L.R. 828 there was a similar lease for a period of ninety-nine years, and the decision in that case, which was given by Madgavkar J. on difference of opinion between Patkar and Barlee JJ., is that the burden of proof was on the plaintiff to show that he was a tenant for more than ninety-nine years, and not on the Government to show that the period of the lease had expired. It was also held on the evidence as well as the probabilities of the case that the period of the lease was ninety-nine years from the date of its grant. This case related to a similar land, although in a different ward, in the city of Ahmedabad. In my opinion, therefore, if the plaintiffs alleged that the grant was a permanent grant, it was for them to prove by definite evidence that it was so, and that burden of proof lay on them. That burden has not been discharged by them. If the lease is for a period of ninety-nine years, there is nothing strange if pacca structures are built by the grantee on the land, because in such a case the structures would be built in the expectation that the lease would be renewed even though at a higher rent on the termination of the period.
41. I now come to the particular point on which the learned Judge has decided this case and that is on the long possession of the plaintiff under Section 110 of the Indian Evidence Act. It is true that the plaintiffs' family has been in possession of the land since sometime before 1870 at the earliest. It may not be as owner but the two documents relating to a property in the neighbourhood on which the plaintiffs rely would show that they were in possession of this land. The evidence does not show how Jethabhai, the plaintiffs' ancestor, came in possession of the land after the lease was granted to the two Parsi gentlemen, but the plaintiffs' own case is that at the time when their ancestor took possession of the land it was of nobody's ownership and it was open and fallow land. On this admission it would follow, therefore, that the original lessees had quitted possession of this land, that it was lying fallow and that the plaintiffs' ancestor took possession of it, but that possession must not be deemed to be as owner when there is nothing to show that the Government had at any time recognized the possession of the plaintiffs' family as owner of this land. Mr. Thakor on behalf of the plaintiffs has contended that the alleged admission of the plaintiffs in paragraph 3 of the plaint that their ancestor took possession of the land which was of nobody's ownership when it was lying open and fallow cannot be taken as admission in view of the evidence which would show that the land must have been granted to the plaintiffs as absolute owners. Mr. Thakor had to contend that the admission of the plaintiffs in paragraph 3 ought to be ignored because it went against the plaintiffs. But the evidence to my mind, instead of establishing the private ownership of the plaintiffs' family, is corroborative of the admission in the plaint and points to the conclusion that the land originally did not belong to them, that it belonged to the Government at that time, that for sortie reason or other the original lessees had relinquished possession of the land and that the plaintiffs' ancestor had come into occupation of the same. The question is whether that possession is prima facie lawful possession, or wrongful possession. In my opinion, in absence of any evidence to show the nature of the alleged title of the plaintiffs and in view of the admission of the plaintiffs, it must be held that the plaintiffs' original possession was wrongful as the owner of the land. If that is so, would Section 110 of the Indian Evidence Act apply to long possession which begins from such wrongful occupation Mr. Thakor has relied upon a large number of cases to show that if a person is in possession of a land for a very long time, there is a presumption in his favour under Section 110 of the Indian Evidence Act even as against the Government, and as a result of that presumption the burden of proof is shifted on to the other side to show that the plaintiffs were not the owners of the land or had no right to the same. If the Government's case of lease is proved by satisfactory evidence, as in my opinion it is, the presumption under Section 110 does not arise at all, because in that case the plaintiffs' possession must be deemed to be possession as a lessee and not in any other capacity. It is not suggested that the plaintiffs came into possession even before 1831 when the lease was granted. There is nothing in evidence to support that suggestion even if it was made. But even assuming for the sake of argument that the Government's case of lease is not proved, in my opinion, the original nature of the plaintiffs' occupation of this land is such that it could not entitle them to the presumption under Section 110. The principal cases relied upon by Mr. Thakor on this point are Ismail Ariff v. Mahomed Ghouse , Gangaram v. Secretary of State for India I.L.R. (1895) 20 Bom. 798, Hanmantrav v. The Secretary of State for India I.L.R. (1900) 25 Bom. 287 Pemraj Bhavaniram v. Narayan Shivaram Khisti I.L.R. (1882) 6 Bom. 215, F.B., Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani , The Secretary of State for India v. Kota Bapanamma Garu I.L.R. (1895) 19 Mad. 165, Bhag-tvansing v. Secretary of State (1906) 10 Bom. L.R. 571, and Krishna Aiyar v. The Secretory of State for India I.L.R. (1909) 33 Mad. 173. He has tried to distinguish the cases of Vasta v. Secretary of State for India I.L.R. (1920) 45 Bom. 789 and Secretary of State for India v. Chellikmi Rama Rao I.L.R. (1916) Mad. 617 P.C. It is not necessary, in my opinion, to discuss these cases separately. The effect of the principal decisions has been considered by this Court in a recent ruling in Suraji Fulaji v. Secretary of State (1936) 39 Bom. L.R. 216 and the principle as summarized by Broomfield J. is that the possession under Section 110 must be of such a character as would lead to a presumption of title, and it is on that ground that the decision in Hanmantrav v. Secretary of State for India is distinguished. It is necessary, in my opinion, therefore, for the plaintiffs to prove that their possession was of such a character as would lead to the presumption of title, and not such a sort of possession as would be regarded as wrongful in its origin. In my opinion, it could not be the law that a! man might usurp somebody else's land and without completing the period of adverse possession say that ' I am in long possession of this land, I have erected buildings on it, and although I have no title in my favour and even though I have got possession of the land by usurpation or encroachment, I am entitled to remain in possession under Section 110 and that nobody can oust me '. The presumption under Section 110 would apply only if two conditions are satisfied, viz. that the possession of the plaintiff is not prima facie wrongful, and, secondly, the title of the defendant is not proved. In the present case it is not at all proved that the plaintiffs had primal facie evidence of title. Secondly, it is not at all shown that if the plaintiffs had no title, the Government also had no title. On the other hand, under Section 37 of the Land Revenue Code, Government are the owner of all lands which are not proved to be of the private ownership of any person. If this land at the time when the plaintiffs came into its occupation was not of the private ownership of any other person, the presumption is that it belonged to the Government. Therefore, in absence of proof by the plaintiffs that the land was of their ownership and in absence of proof that it was of anybody else's ownership apart from the plaintiffs, the only alternative is that the land must belong to the Government. In my opinion, therefore, both the conditions for the applicability of Section 10 of the Indian Evidence Act are absent in the present case with the result that that section does not apply. Therefore, the plaintiffs are not entitled to the benefit of this section even though the Government may not succeed in proving that the land is of a leasehold tenure. The proprietary right of Government with regard to all waste lands which are not proved to be of the ownership of private individuals has been recognised in this Presidency from early times. The preamble of Bombaiy Regulation III of 1814 as interpreted in The Collector of Thana v. Dadabhai Bomanji I.L.R. (1876) 1 Bom. 352 and Baban Mayacha v. Nagu Shra-vucha I.L.R. (1876) 2 Bom. 19, Section 7 of Bombay Regulation XVII of 1827, Section 11 of the City Survey Act (Bom. IV of 1868), and finally Section 37 of the present Land Revenue Code, all these provisions embody this principle and create a presumption in favour of Government in the case of all lands which are not proved to be of private ownership. The recent decision of the Madras High Court in Pothukutchi Appa Rao v. Secretary of State [1938 A.I.R. Mad. 193 is also based on the principle that Section 110 of the Indian Evidence Act does not apply where there is a statutory presumption in favour of Government. There could thus be three alternatives with regard to the ownership of the suit land at the time when the plaintiffs' ancestor took, it into his possession, viz., (1) its acquisition by grant or title (2) that the land was of the ownership of some other individuals, and (3) that it belonged to Government. As regards the first alternative, the plaintiffs have not even alleged that their ancestor acquired it by grant or purchase, and it is not also proved that their occupation of the land at its inception was based on such acquisition of title. The second alternative is also precluded because the plaintiffs' case is that the land was not of any one's ownership or possession at that time and that therefore their ancestor took it into his possession. There is nothing also on the evidence to show that it belonged to any one private proprietor. Therefore there remains only the third alternative that it was of the ownership of Government at that time. There is therefore no scope, in my opinion, for the application of the presumption under Section 110 of the Indian Evidence Act. It is this circumstance which distinguishes the present case from all decisions relied upon on behalf of the plaintiffs. It is on this presumption only that the learned Judge below has given a decree for the continuance of possession of the land in the plaintiffs favour ; but if the presumption could not be applied, the plaintiffs to my mind are not entitled to any relief, even though the Government's case of lease is not satisfactorily proved.
42. In spite of there being a definite issue on adverse possession the learned Judge has not held that the plaintiffs have acquired title by adverse possession for sixty years against Government and has not therefore given them a decree of declaration of absolute ownership in the plaintiffs' favour. The plaintiffs have not filed any cross-objections against the decree of the lower Court on the ground that it ought to have held the plaintiffs' absolute ownership proved on account of their acquisition of title by original grant or purchase or by adverse possession. In the absence of such cross-objections the plaintiffs are, in my opinion, precluded from urging in this appeal that they have acquired such absolute title. Under Order XLI, Rule 22, of the Civil Procedure Code, they can support the decree granted to them on any grounds decided against them in the Court below ; but if they want a decree for the higher right of absolute ownership which they prayed for in the plaint but had not been granted to them, it is incumbent on them to file cross-objections or a cross-appeal against the decree. Even assuming however that it is open to the plaintiffs to urge the point of adverse possession in this appeal it could not be satisfactorily proved on the evidence that the plaintiffs have acquired title by adverse possession for sixty years before the date of the suit. The earliest document on which they relied is of 1870. It is a document of title of a neighbours property, and the only thing it recites is that to the west there was the bungalow of Jethabhai. It does not say that either the bungalow or the land underneath was of his ownership, and it cannot therefore be said that Jethabhai was in possession of the land at that time claiming to be the owner of the property. The first document which speaks of the plaintiffs' ancestor as an owner of the building is exhibit 86 which is an extract from the Register of Municipal Tax for the year 1883. Even taking it that the plaintiffs' ancestor asserted his ownership not only for the building but also for the land below, that document is within sixty years before the date of the suit. It is true that there are a number of rent-notes and other documents by which the plaintiffs have rented this property to several persons, and in one case even Government became a tenant of the building. But that does not take the case of the plaintiffs any further. I think that the learned Judge did feel this difficulty and therefore did not make any finding with regard to adverse possession. The learned Government Pleader contends that adverse possession in any case ceased to run from the decision of the City Survey Inquiry Officer in 1923. It was contended by him that when the plaintiffs accepted that decision and did not protest against it, their adverse possession came to an end because in any case the character of this possession must be deemed to have been changed, and reliance was placed for that argument on Muthirulandi Poosari v. Sethu-ran Aiyar I.L.R. (1919) Mad. 425 and Ramamurthi v. Gajapatiraju I.L.R. (1932) Mad. 366. The case of Muthirulandi v. Sethuram was a case of boundary dispute, and under the law such a decision became conclusive between the parties. The case of Ramannurthi v. GaJapatiraju follows the previous decision. On the other hand there is a decision of their Lordships of the Privy Council in Subbaiya Pandaram v. Mohammad Mustapha Maracayar in which possession was continued in spite of a decree, against the possessor, and it was held that the decree emphasized the adverse nature of the claim. Even if the decision of the Inquiry Officer was passed to the knowledge of the plaintiffs it cannot be said that adverse possession ceased to run at that date because it is clear that the plaintiffs did remain in possession of the property in spite of the decision and they were entitled to remain on it on Government's case of the lease which was to expire in 1930. If the plaintiffs did intend to hold the property adversely before 1923 it cannot be said that their intention must have ceased or the character of that possession must have changed simply because of the decision of the City Survey Officer, It is not necessary to pursue this point further because in my opinion there is no definite evidence as to the point of time from which adverse possession might be said to begin. Taking the case at the highest in the plaintiffs' favour, it might be said to begin from 1883-1884, that is within sixty years before the date of the suit. On the merits therefore I am of opinion that the plaintiffs have not been: able to establish their adverse possession.
43. On behalf of Government reliance was sought to be placed on Section 37, Clauses (2) and (3), of the Land Revenue Code, and it was contended that no suit having been filed within one year from that decision it was barred under Clause (2) of Section 37. This point was not urged in the written statement, nor was there :any issue about it, and it does not seem to have been taken also in the trial Court. The decision of the Inquiry Officer is that of a City Survey Officer and it has been doubted by this Court as to whether the City Survey Officer is a Revenue Officer within the meaning of Section .37, and I think therefore that it would be difficult to hold that the plaintiffs were bound to bring this suit within one year of the date of that decision.
44. There now remains the question of limitation under Articles 14 and 120. No arguments were seriously pressed as to the bar of time under Article 120. But it was contended that the suit was barred under Article 14 because it ought to have been brought within one year from the date of the notice (exhibit 28) in October, 1930. The lower Court has held that Article 14 would not apply as that order was ultra vires and that therefore the plaintiffs were not bound to file the suit. It has been conceded by the learned Government Pleader that if that order be treated as ultra vires, then according to the authorities Article 14 would not apply. As I have stated above, the decision recorded in exhibit 28 cannot be said to be ultra vires of the Government and there would therefore be no bar as to the applicability of Article 14 on. that ground. However it would be a question as to whether the plaintiffs were bound to bring the suit within one year of the date of the order. On that point Article 14 does not seem to have been relied upon by the Government in the case decided :in Secretary of State v. Husenabu (1930) 33 Bom. L.R. 361, and the question whether the present suit is really a suit to set aside that order is not entirely free from difficulty.. But it is not necessary to express any decided opinion on this point inasmuch as in my opinion the suit is barred1 under Section 11 of the Bombay Revenue-Jurisdiction Act, and it also fails on the merits as the plaintiffs have been. proved to be lessees and not the absolute proprietors of the suit land.
45. It was further contended on behalf of the respondents that if at all they held the land under Government, it cannot be under a lease but it must be-under some grant because this is not a case of a lease as defined in the Transfer of Property Act, 1882. There is no rent for the same such as would be necessary in the case of a lease. It is true that according to Government case this land was given rent-free to the two Parsis, but any grant by the Government on certain conditions and for a certain period after which it would be resumable by the Government has always been treated by the Revenue Authorities throughout as a lease for a particular period, and this case would not be governed by the definition of ' lease ' in the Transfer of Property Act. In my opinion whether it would be called a lease or a grant as the plaintiffs contend, it would not make any difference so far as the rights between the plaintiffs and Government are concerned. As I have shown above, under Section 68 of the Land Revenue Code Government had always the power to make a grant of land in favour of any individual on such terms and conditions and for such period as might be fixed. Even calling it a grant therefore would not necessarily make it a grant in such a sense that it must be presumed to be permanent in the absence of evidence to the contrary. We are here concerned with a revenue grant to which certain conditions have been attached. Reliance has been placed on behalf of the plaintiffs on a decision in Caspersz v. Kader Nath Sarbadhikari I.L.R. (1901) Cal. 738, in which it is held that there is a presumption of permanent tenancy in the case of grant for building purposes, but in the circumstances of the case in my opinion it cannot be said that any such presumption arises in the present case. Leaving aside for a moment the question as to whether Government had any power to create any permanent tenancy in favour of an occupant, it seems to me clear on the evidence that the lease must have been granted to the plaintiffs' ancestor for a definite period and not by way of a permanent lease, and I agree with the observations of Mr. Justice Madgavkar in Hiralal v. Secretary of State (1930) 33 Bom. L.R. 828 that if the grant is of a leasehold nature the burden of proof that it is a permanent lease is on the lessee and not on the Government. Moreover the evidence in the present cast;, just as in that case, also points to the conclusion that it must have been a grant for a period' of ninety-nine years and not permanent. In that case there is no presumption that it was necessarily a grant for building purposes. Even in a case of lease for ninety-nine years, it would be open to the lessee to construct a superstructure with the hope of its renewal; I do not think therefore that the fact that the plaintiffs have erected superstructures from time to time over this land would necessarily create a presumption in their favour with regard to their being permanent lessees of the land. This finishes the principal relief sought by the plaintiffs with regard to the land.
46. The alternative relief sought by them is an injunction that the Government should not take possession of the property without fixing a reasonable sum for payment in lieu of the plaintiffs' right of possession. This alternative relief is sought on the basis that the leasehold for ninety-nine years was proved and that it was under such a lease that the plaintiffs came into possession of the land. It is contended that inasmuch as Government issued a sanad of this property in 1930 which had been accepted by plaintiff No. 3, they were bound to observe the terms of that sanad and continue its possession with the plaintiffs' family under those terms. This seems to me to be a new case and it was neither urged in the lower Court nor set up in this form in the plaint itself. The plaint does not make any mention of this sanad granted to the plaintiffs in 1930, much less is it alleged that there was a concluded contract between the parties. The reason why this case was not made out in the plaint is not far to seek. The sanad only confirms plaintiff No. 3's possession up to March 31, 1930, i.e. the date of the termination of the lease. It is not a sanad conferring the occupancy rights or the ownership of the land on plaintiff No. 3 after that date. It was given to him in virtue of the decision of the City Survey Officer and he accepted it without any protest. The sanad clearly reserves the right of the Government to resume the land whenever they like. The alternative case as set up is entirely inconsistent with the terms of the sanad which was to be valid only up to March 31, 1930. After nearly a year from the date of the receipt of the sanad, the plaintiffs filed the present suit on the ground that they were not lessees of the land but were the absolute proprietors. The sanad does not amount to any concluded contract between the parties about the plaintiffs' rights after the expiry of the lease and they are not therefore entitled to rely on the sanad for their alternative case. In any case the plaintiffs have not based their alternative case on the terms of the sanad, and I do not think therefore that they are entitled to ask Government that they must be allowed to remain in possession of the land under the terms of the sanad which was given to them only for the purpose of confirming their possession up to March 31, 1980.
47. As a result of these findings the plaintiffs are not entitled to any of the two reliefs prayed for. The learned Judge of the Court below has, as I have stated above, given the reliefs to the plaintiffs entirely on account of their long possession of the land. If the presumption under Section 110 of the Indian Evidence Act is displaced in the present case, even on the reasoning adopted by him the plaintiffs would not be entitled to any relief. But Government have in my opinion satisfactorily proved that the land was of a leasehold nature, that the plaintiffs occupied the land as lessees for a period of ninety-nine years which expired in March, 1930, and that Government were therefore entitled to resume possession of the land if they liked. The appeal is therefore allowed, the decree of the lower Court is set aside, and the plaintiffs' suit is dismissed with costs in this Court as well as in the lower Court.
48. C. R. A. 260 OF 1935 : This is an application by Government against an order of the learned Judge in this case allowing the plaintiffs to amend their plaint by which the value of the relief was changed from Rs. 5,000 to 5,005.
49. It is contended that the amendment was not necessary for determining the real question in controversy between the parties and therefore it did not come under Order VI, Rule 17, of the Civil Procedure Code. It was however conceded by the Government Pleader that there is no authority to show that a valuation of a relief cannot be allowed to be amended under Order VI, Rule 16. In my opinion the amendment of this relief does not change the nature of the suit at all, and it was within the competence of the lower Court to grant the amendment prayed for. The order is therefore confirmed and the rule is discharged with costs.
50. I agree. My learned brother and I have discussed this case not only at its various hearings but at the conclusion of the arguments, and I am in complete agreement with what is stated in his judgment.