1. These are second appeals arising from suits brought by the respondents, who are jahagirdars and watandars. of the village Gondgaon in East Khandesh, to evict the tenants from certain lands in the village. The earlier suit No. 469 of 1927 relates to S. Nos. 17 and 52 and is the subject of second appeal No. 991 of 1930. The other suit No. 648 of 1927 relates to S. No. 49 and is the subject of second appeal No. 989 of 1930. The tenants denied plaintiffs' right to recover possession of the lands on two grounds : (1) that plaintiffs are merely grantees of the assessment and not owners of the soil, (2) that the tenancy is a permanent one. In the first suit the trial Court found on both points in favour of the defendants. In the second the finding; on both was in favour of the plaintiffs. On appeal the District Judge held in both cases that the plaintiffs are owners of the soil and that the alleged permanent tenancy is not proved. Hence both suits have been decreed.
2. In these second appeals the first issue has not been argued. It is conceded that the plaintiffs are owners of the soil. Thus the only issue is whether the appellants are permanent tenants.
3. It will be convenient to state at the outset what I take to be the law as to the burden of proof in such cases, that is to say, where there are no miraspatras or other documents creating a permanent tenancy and reliance is placed on Section 83 of the Bombay Land Revenue Code. It is for the tenants in the first place to lay the foundation for the application of the section by showing that their tenancy is ancient : Maneklal Vamanrao v. Bai Amba I.L.R(1920) 45 Bom. 350, 22 Bom. L.R. 1394. No definite rule can be laid down as to the duration required to raise a presumption of permanency : Narayan v. Raghavendracharya (1900) 2 Bom. L.R. 281, 22 Bom. L.R. 1394. The period of forty years or even less in some cases has been held sufficient. On the other hand mere long duration is not enough to prove permanency. It must appear that by reason of antiquity the origin of the tenancy is obscure. If the landlord can show that the tenancy commenced in a particular year or within reasonably definite limits of time, Section 83 will not come into operation : Chikko Bhagwant v. Shidnath I.L.R(1921) 46 Bom. 687, and Narayan v. Pandurang : (1922)24BOMLR831 . If antiquity is proved and no satisfactory evidence of commencement is forthcoming, the landlord must then produce evidence of agreement or usage to limit duration. Leases for a year or for a fixed time will usually suffice for this purpose, but not always : see Vijbhukhandas v. Ishvardas : (1923)25BOMLR431 and Raghunath v. Lakshuman (1899) 2 Bom L.R. 93:
4. We may now look at the findings of fact. In the case of each of the three fields rent-notes were executed by the predecessors of the appellants in 1878. The rent-notes are for S. No. 17, exhibit 43, for S. No. 52, exhibit 44, and for S. No. 44, exhibit 69. That would make the tenancy sufficiently ancient and would attract the operation of Section 83 unless the commencement of the tenancy can be traced to that year or to that time approximately. As regards S. No. 17 the District Judge says that there is nothing in the evidence to suggest that Ekoba, who executed the rent-note, exhibit 43, and his ancestors were in possession prior to 1878. That is hardly a finding of fact but a statement of the evidence in the case, and as a statement of the evidence it does not appear to me to be correct. It has been shown that from 1873 to 1884 the village of Gondgaon was under attachment by Government on account of the failure of the jahagirdars to pay their dues. During this period the assessment was recovered from the persons in actual occupation and a list of the occupants was prepared by the officers of Government. From these lists (exhibits 46 and 47 are those relating to S. Nos. 17 and 52) we find that the ancestors of the appellants were in occupation of and were shown as khatedars of the lands in suit. It is true that the date of exhibits 46 and 47 is 1880 and they are there-lore subsequent to the leases of 1878 on which the plaintiffs rely. On the other hand it seems unlikely that these persons would be shown as khatedars of the land and not mere tenants of the jahagirdars unless they had been in occupation for some time prior to the preparation of these statements. In this connection it is to be noted that documents older than those which have been produced ought apparently to have been available. The trial Judge in S. No. 469 of 1927 has pointed out in his judgment that the plaintiffs produced a shetwar patrak of the year 1870 relating to the main survey number of which the survey numbers in suit are sub-divisions. It was admitted that separate shetwar patraks for those sub-divisions had been made but these were not produced. The defendants have alleged that the plaintiffs, who besides being jahagirdars were also Mahalkaris and village officers, have purposely destroyed documents relating to the land. These allegations seem to derive some support from the Collector's order, exhibit 67, made in 1909 when he ordered the names of the tenants to be entered as before, the jahagirdars having entered their own names after the attachment was over. Both the lower Courts appear to accept the allegation of destruction of evidence as at least a possibility. I think an inference is justifiable that if all the records were forthcoming, as they ought to be forthcoming, the defendants' ancestors would be shown to have been in occupation even prior to 1878,
5. In any event the defendants' case certainly is that their tenancy began long prior to that year. It is for the plaintiffs to show that it commenced in that year or approximately at that time. There is certainly no proof of anything of the sort nor does it appear that the plaintiffs have even alleged it. The learned counsel for the respondents was unable to point to any statement either in the pleadings or in the evidence of the plaintiffs in which it is asserted that the tenancy of these defendants began for the first time in 1878. On the other hand there are admissions in the evidence of these plaintiffs that they have no knowledge of the enjoyment of the lands prior to the period of attachment in 1873.
6. In the case of S. No. 52 the case is stronger in favour of the tenants. The rent-note, exhibit 44, itself contains a recital that the executant Kautik Govinda, who was apparently the ancestor of defendant No. 4, the person now in occupation, had been a tenant on the land from the time of the plaintiffs' ancestors. The learned District Judge has himself found that there is no evidence to suggest when the tenancy began. He has held on the authority of two cases, Madhavarao Woman v. Raghunath Venkatesh I.L.R(1923) 47 Bom. 798, 25 Bom. L.R. 1005 and Vishnu Ramchandra v. Tukaram Ganu I.L.R(1924) 49 Bom. 526,27 Bom. L.R. 449 that no presumption under Section 83 can arise here, because the lands in suit are watan lands and a tenant of such lands can never acquire title to a permanent tenancy as against subsequent holders of the watan. The former case, which is a decision of the Privy Council, has been discussed in Govind v. Vithafi, where the Court held that even if the principle enunciated by their Lordships of the Privy Council would prevent the operation of Section 83, which point was left undecided, it could only do so in the case of a tenancy commencing after the date when watans ceased to be alienable, that is to say after the year in which Bombay Regulation XVI of 1827 came into force. If, as appears to me to be the case, there is no satisfactory evidence as to the time when the tenancy in this case commenced, then on the authority of Govind v. Vitha (1930) 33 Bom. L.R. 210, the defendants would be entitled to rely on the presumption under Section 83. In Ramchandra v. Adiveppa : AIR1932Bom577 this Court considered both the Privy Council ruling and the decision in Vishnu Ramchandra v. Tukaram Ganu, and it was held that having regard to the fact that Section 83 of the Bombay Land Revenue Code did not exclude watan lands from its operation and to the fact that the onus was on the landlord to show the commencement of the tenancy, the Court should presume that the tenancy of the defendant there was in existence even prior to 1827. It is true, as the learned counsel for the respondents pointed out, that in that particular case the earlier limit for the commencement of the tenancy went back as far as 1700, but the later limit was 1850, that is to say, after watan lands had become inalienable, and the principle laid down will apply to the present case, where also possession presumitur retro. I hold, therefore, that the fact that these lands are watan lands does not constitute a legal bar to the operation of Section 83 of the Bombay Land Revenue Code.
7. I think that on the facts proved an initial presumption does arise in favour of the tenants of all these survey numbers and it is, therefore, for the plaintiffs to produce evidence of agreement or usage to limit the duration of the tenancy. The rent-notes of the year 1878 are not for any fixed period. They provide moreover for the payment of the assessment only plus a cess of four annas for certain mango trees. It is true, as the learned counsel for the respondents points out, that the rent-notes, exhibits 43 and 69, contain recitals that the lands were given on lease from the year 1878 without reference to any previous occupation. Exhibits 43 and 69 also expressly provide that the tenant would vacate on demand and exhibit 44 likewise purports to create a tenancy at will : 'The land is to be given to me on lease long as you please.' These recitals are prima facie inconsistent with a permanent tenancy.
8. Then there is a later lease:, exhibit 49, dated 1887, purporting to be for a fixed period of thirty-three years at the end of which the land was to be vacated. This rent-note also provides for payment of assessment only. It purports to relate to both S. Nos. 17 and 52, and the learned counsel for the respondents has laid great stress on the evidence indicating that Ekoba, the ancestor of defendants Nos. 1 to 3, had possession of S. No. 52, now claimed by defendant No. 4, for some years between 1887 and 1909. This point has been discussed by the learned District Judge in paragraphs 12 to 16 of his judgment, where he gives what he thinks may have been the history of S. No. 52. He says that there may have been a private arrangement between the sharers in the jahagir, i.e., in the family of the plaintiffs, by reason of which Ekoba was given possession of S. No. 52 in exchange for another S. No. 56 with which we are not concerned, and he thinks that Ekoba may have subsequently relinquished S.No.52 in favour of defendant No. 4, the descendant of the person who executed the rent-note for S. No. 52 in 1878. But all this is very problematical. Apparently there is nothing in the evidence of the plaintiffs to show that they put this forward as part of their case. The statement of defendant No. 4 that S. No. 52 had been in his possession and that of his predecessors from time immemorial was supported by defendants Nos. 1 to 3 who asserted that they never had anything to do with this particular field. The case now put forward on behalf of the plaintiffs was not put in cross-examination either to defendant No. 1 or to defendant No. 4. It appears from paragraph 22 of the learned District Judge's judgment that he was not prepared to find with any confidence that Ekoba ever had possession of S. No. 52. Even if he had, it was apparently a temporary arrangement between two families of permanent tenants, and I am not satisfied that Ekoba's temporary occupation, assuming that he had it, was inconsistent with the claim put forward by defendant No. 4 to be a permanent tenant of the lands. A short interruption of the tenancy is not necessarily inconsistent with permanent tenancy : see Maruti v. Banubai (1902) 4 Bom. L.R. 810 and Sardar Madhavrao Anandrao Raste v. Gopala Piraji Hagir (1931) S. A. No. 684 of 1928 decided by Broomfield J., on March 27, 1931 (Unrep).
9. One of the principal questions in these appeals is whether the recitals in these Teases providing for the termination of the tenancy at the expiry of a fixed period or at the will of the landlord ought to be given their face value. As I have mentioned, the plaintiffs are not merely the jahagirdars ; they are or were at the material time also Mahalkaris and village officers. They had control of all the village records. They are Brahmins and probably persons of education and intelligence. On the other hand, the tenants are quite illiterate people. It would probably be easy enough to induce them to sign anything as long as there was no palpable attempt to interfere with the actual enjoyment of their land, I think under the circumstances it would not be reasonable to attach any importance to these recitals in exhibits 43, 44 and 69.
10. I may mention that this is not the first time that the disputes between these plaintiffs and their tenants have come before this Court. They have been discussed in a series of appeals, to which I have been referred, second appeals Nos. 945 of 1927, 620 of 1928, 873 of 1928, 54 of 1929, and 549 of 1928. In all these cases the tenancies, not of these particular tenants but of others, have been held to be permanent in spite of similar recitals in the rent-notes. I may refer particularly to the observations of Madgavkar and Barlee JJ. in Ratan Sahadu Patil v. Sarasvatibai Vasudev S. A. No. 684 of 1928 decided by Madvarkar and Barlee JJ., on August 14, 1931 (Unrep). These are not decisions inter partes and of course there is no question of res judicata, but the reasoning on which these judgments are founded is in pari materia and there is no reason why it should not be followed in the present case.
11. In my view, therefore, the tenants in the case of S. Nos. 17 and 52 are entitled to the benefit of Section 83 of the Bombay Land Revenue Code. Their tenancy is ancient. They and their predecessors appear to have been on the land from before 1878 on payment of assessment only plus the tree cess. No satisfactory evidence of the commencement of the tenancy is forthcoming and the landlords have failed to produce convincing proof of any agreement limiting the duration of the tenancy.
12. It was suggested that the findings of the District Judge are binding on this Court in second appeal. But I think that is not so. It is not a case of mere appreciation of evidence. The District Judge evidently expected the defendants to prove their occupation of the land before 1878, which under the circumstances was impossible, the old records having been destroyed or at any rate not produced, and which the law does not require them to do. So far as S. Nos. 17 and 52, therefore, are concerned, which are the subject of second appeal No. 991 of 1930, I hold that the decision of the trial Court was right and that of the Court of first appeal was wrong.
13. Coming to S. No. 49, which is the subject of the other appeal, the preliminary considerations are the same. Like the other lands S. No. 49 was leased in 1878 to the ancestor of the defendants under exhibit 69, which is similar to the other leases of 1878 already discussed. Here also there is, in my opinion, a reasonable inference that the defendants' predecessors had been in enjoyment for an indefinite period prior to that year. In this case, however, the evidence of an agreement limiting the duration of the tenancy is very much stronger. It seems there was another lease in 1879 for a fixed term of seven years, exhibit 57. There is evidence of a surrender by Nimba's son Nathu in 1903, exhibit 98, and in the same year there was a fresh lease, exhibit 82, for thirteen years reserving a rent considerably in excess of the assessment. There is also evidence of actual payment of this rent which both the lower Courts have accepted as reliable. In this case, therefore, I cannot find any sufficient ground for interfering in second appeal.
14. The result is that appeal No. 991 of 1930 is allowed and the decree of the trial Court restored with costs in favour of the appellants throughout, but appeal No. 989 of 1930 is dismissed with costs.