1. The finding of the two lower Courts on the issue remanded under this Court's judgment of March 25, 1924, is in the negative, that is to say that the defendants have failed to prove under the provisions of Section 83 of the Bombay Land Revenue Code that they are entitled to the presumption mentioned therein, so that they cannot be held to be permanent tenants with a duration of tenancy co-extensive with the duration of the tenure of their landlord, This negative finding is based on certain documentary evidence which, in the opinion of both the lower Courts, shows that the land in question was waste land belonging to the plaintiff's ancestor in about the year 1851 and that it was not cultivated by any tenant, whether the predecessor of defendants Nos. 1 to 5 or not, until at any rate some years later. This conclusion is not objected to by Dewan Bahadur Rao for the respondents. But he contends that the finding is not sufficient ground for saying that satisfactory evidence of the commencement of the tenancy is forth-coming. He relies upon the decision in Sidhanath v. Chiko : AIR1921Bom454 confirmed in appeal in Chikko v. Shidnath (1921) 24 Bom. L. R. 228 He points out that the finding in that case was that the tenancy must have begun in the year 1805 and that the decision therefore only amounts to paying that, when a particular year can be indicated as that in which the tenancy began, the case is excluded from those in which a presumption can be drawn under Section 83 of the Bombay Land Revenue Code. Ho points out that, if so, this is in conflict with the decision to which I wan a party in Narayan v. Pandurang : (1922)24BOMLR831 and that the assumption in Pratt J 's judgment that in Shidnath v. Chiko : 'the time from which the tenancy was proved to have commenced wan found not to be a particular year, but a period in or after the year 1805,' is not justified by the record in that case. The latter comment appears correct, but that does not in my opinion affect the main consideration on which the decision in Narayan v. Pandurang was based. In both the judgments of Pratt J. and myself the main reason for holding that the presumption could not be drawn was that a certain period was proved within which the tenancy must have commenced, and that there was no good ground for saying that a particular year was the outside limit contemplated by the legislature in Section 83, in regard to proof of the commencement of a tenancy. As I have said in that cage, I can see no logical basis for saying that you are justified in taking a number of months, but not justified in taking a number of years as sufficient Dewan Bahadur Rao has suggested that the fact that the ordinary tenancy contemplated by the Bombay Land Revenue Code, is an annual tenancy, supplies a reason for taking a year as the extreme period contemplated by the legislature. But there is nothing in Section 83 to confine it to the rise of annual tenancies, and if the legislature had intended such a construction we think it would have been more clearly expressed. I adhere to my previous decision, and therefore upon the findings of the lower Courts I hold that the main defence of the defendants fails and that they are not proved to be permanent tenants.
2. It is conceded by Mr. Bahadurji for the plaintiff-appellant that the objection as to proper notice not having been given is valid and that he is not therefore entitled to the relief of ejectment that is sought in the plaint. The plaintiff, however, included in the relief sought a prayer for a declaration that he and defendant No. 6 were the rightful owners of the land. Mr. Bahadurji asks that a declaration accordingly should be given, coupled with a further declaration that defendants Nos 1 to 5 are merely annual tenants, who can be ejected after due notice as required by the Bombay Land Revenue Code. We, therefore, allow the appeal and grant the plaintiff the declarations above mentioned. We also, in order to avoid further litigation, if possible, and as there is a prayer in the plaint as to mesne profits, award, as other relief equitable in the circumstances of the case, the plaintiff and defendant No. (5 mesne profits or rent from defendants Nos. 1 to 5 from the date of suit at the rate of Rs. 41-11-9. the rate mentioned in Exhibits 47 and 4S.
3. As regards costs, the plaintiff has succeeded on the main question that has been the subject of this litigation but he has failed in his prayer for possession for a technical reason. In the circumstances, we think that a fair order will be that the appellant should get 2/3rds of his costs throughout from defendants Nos. 1 to 5.