1. This is a suit brought by the plaintiff' who is the talukdar of Utelia in the Dholka Taluka in the Ahinedabad District and also the talukdar of Hariala to recover enhanced rent from the defendant who holds nine lands situated at Hariala.
2. The plaintiff's case was that the tenancy was annual whereas the defendant's case was that it was permanent. Both the lower Courts held that the tenancy was ancient and there was no satisfactory evidence of the commencement of the tenancy, but came to the conclusion that there was evidence of usage as to the duration of the tenancy to the effect that the tenancy was from year to year and therefore allowed the plaintiff's claim for enhancement. The defendant preferred a second appeal and Mr. Justice Jladgavkar reversed the decisions of the lower Courts, and came to the conclusion that the usage relied on by the talukdar plaintiff was not proved, and sent down certain issues -for finding as to whether the plaintiff proved his right to enhance the rent and if so to what extent.
3. It is urged in this appeal that Mr. Justice Madgavkar had no jurisdiction under a 100 of the Civil Procedure Code to interfere with the finding of fact as to the usage arrived at by both the lower Courts and that his decision was wrong on the merits. On the first point it is urged, relying on Muhammad Kamil v. Imtiaz Fatima (1908) L.R. 36 IndAp 210 : 11 Bom. L.R. 1210 and Anant Singh v. Durga Singh (1910) L.R. 37 IndAp 191 : 12 Bom. L.R. 604, that the question as to the existence of usage is a question of fact. And it is further urged, relying on the decision of the Privy Council in Midna-pore Zamnindary Company v. Secretary of State (1929) 32 Bom. L.R. 114. and Raja of Pittapur v. Secretary of State : (1929)31BOMLR866 that in second appeal there is no jurisdiction to interfere with the decision on a question of fact however erroneous the finding may be. It has, however, been held in Palaniappa Chetty v. Deivasilcamony Pandara that the rule as to concurrent findings does not apply to findings as to the existence of a custom, since that is a matter of mixed law and fact. In Tajammul Husain v. Banwari Lal ILR (1925) All. 77 it was held that the existence of a large number of sale-deeds, extending over a period of some sixty years, whereby tenants owning houses in the abadi had transferred them to strangers, without any objection on the part of the Zamindars was evidence upon which the High Court, in second appeal, might find the existence of a custom established although the lower Courts had negatived its existence. In Ratilal v. Motilal (1924) 27 Bom. L.R. 880 it was held that, in second appeal, the Court will entertain objections based on the ground that the evidence as a whole amounts to insufficient proof in law of a local custom, but will not go into the question whether a specified instance is properly proved or not, unless some point of law is involved, such as the improper admission or rejection of evidence. We think, therefore, that the question as to the existence of a custom is a mixed question of law and fact, and therefore it would follow that it is within the jurisdiction of the High Court in second appeal to interfere with a finding as to the custom contrary to the findings of the lower Courts. With regard to the second question as to whether the decision of Madgavkar J. is erroneous on the merits, it is urged on behalf of the appellant that there cannot be a permanent tenancy under Section 83 of the Bombay Land Revenue Code with reference to talukdari estates, and that according to Section 108 of the Bombay Land Revenue Code the name of the tenant has to be entered in respect of the land, whereas under a 5 of the Gujarat Talukdars' Act the name of the talukdar is entered as the occupant. If it was the intention of the Legislature that there could not arise a permanent tenancy by virtue of Section 83 of the Bombay Land Revenue Code in talukdari estates it would have been so expressly enacted and Section 83 would have been made inapplicable to talukdari estates. We find that Section 83 is not included in Section 33 of the Gujarat Talukdars' Act among the sections of the Land Revenue Code which are inapplicable to talukdari estates. We cannot, therefore, accept the contention on behalf of the j appellant that a permanent tenancy under Section 83 of the Bombay Land Revenue Code cannot be held established with reference to talukdari estates. On the other hand, there are two decisions of this Court in Amarsangji v. Ranohhod (1924) 27 Bom. L.R. 267 and Juvansingji v. Dola Chhalam (1924) 27 Bom. L.R. 891 in which Section 83 was applied to talukdari estates. The first case expressly refers to talukdari estates and the second case refers to a land which was given in gift as pasaita. Though the facts in the two cases are distinguishable from the facts of the present case they give rise to the inference that so far as talukdari estates are concerned there is no prohibition of a presumption being raised under Section 83 of the Bombay Land Revenue Code.
4. It is further urged that according to the view of Sir James Peile in his report the tenancies are from year to year. Reliance is further placed on Exhibit 71 Jamabandi Fesal Register of Moja Hariala and Exhibit 72 List of Dhara Vera (taxes) of the settlement register of 1917 in order to substantiate the argument that in talukdari estates the tenants are tenants at will and cannot be permanent tenants. The statement in Sir James Peile's report cannot be placed on a higher footing than evidence of tradition with respect to the nature of the tenancies in talukdari estates, and Exhibits 71 and 72 appear to have been based on the opinion of Sir James Peile in his report. On the other hand, there are sale-deeds and mortgages effected by the tenants and also sales in execution of the decrees, and there is evidence to show that the plaintiff as talukdar recognized the rights of the purchasers, the mortgagees and the auction purchasers, and received rent from them as tenants. In some of the documents only the khed hale (right of cultivation) has been alienated but it appears from Exhibits 16,19, 20 and 50 that the lands themselves were sold and were the subject of alienation. In a similar case where there was a difference between the landlord and tenant as to the nature of the tenancy and the tenant contended that he was a permanent tenant whereas the landlord contended that the tenant was a tenant at will, their Lordships of the Privy Council in NabaJcumavi v. Behari Lal : (1907)9BOMLR846 held that the recognition by the landlord of the rights of the purchasers as tenants was evidence from which the Court might presume that the tenancy was permanent. The material point relied upon in that case was the receipt of the rent of the holding from the transferees in their own names. There is, however, the evidence afforded by the judgment in Exhibit 53 in which in respect of another person it was held that the tenancy/ was from year to year. The finding is Principally based on the opinion of Sir James Peile Trfhis report. The case, therefore, on the evidence with regard to the usage of the locality as to the duration of the tenancy can be divided into evidence of tradition to be inferred from Sir James Peile's report, the decision in Exhibit 53, and Exhibits 71 and 72, on the other hand, the evidence of conduct of the tenants, and of the talukdar. Sir James Peile's report was written in 1869. The Land Revenue Code, Section 83, was enacted in 1879, and in 1888 when the Gujarat Talukdars' Act was passed Section 83 was not included in Section 33 of the Gujarat Talukdars' Act so as to make it inapplicable to talukdari estates. Having regard to the conflicting evidence in the case, we are not prepared to say that the view taken by Madgavkar J. in second appeal is erroneous on the merits. The evidence of conduct of the tenants and of the landlord is an important piece of evidence showing the nature of the tenure and would be cogent evidence of usage in the locality as regards the duration of the tenancy. On these grounds we think that the view taken by Madgavkar J. is right and this appeal must be dismissed with costs.
5. I have nothing to add as to the first point of jurisdiction. On the second point, whether the defendant is a permanent tenant, I should like to say a few words. It is recognized that the onus of proving that because of the antiquity of a tenancy no satisfactory evidence of its commencement is forthcoming, is on the tenant who claims the permanent rights; and that, once it has been proved that there is no evidence of its commencement, the onus is shifted to the landlord (the talukdar in this case) to prove that there is some evidence of its intended duration or some usage in the locality 'as to the duration of such tenancy.' These last words present some difficulty to my mind as they appear to contemplate the production of evidence to prove the duration of a tenancy which is still in existence and of which the origin is uncertain. What sort of evidence can be brought for this purpose it is difficult to say, and no authority or ruling on the meaning of these words has been cited. But in this case the evidence on both sides is mainly evidence of tradition and belief. The talukdar appellant relies principally on passages in the report of Sir James Peile in printed selection from the record of the Bombay Government, New Series No. 106, in which it is stated that it was then, i. e., in 1867, universally admitted that the talukdars' tenants were tenants from year to year. Further evidence adduced for the talukdar consists of a judgment in a suit of 1887, but that appears to carry the matter no further because the learned joint judge of solely on the opinion expressed by Sir James Peile. Some reliance has Been placed on Section 5 of the Talukdari Act itself as showing that in the opinion of the Legislature the tenants of talukdari villages were on a different footing from the tenants in Government lands. But this argument is discounted by the fact that Section 88 of the Bombay Land Revenue Code is applicable to taluk dari villages, though, had it been the opinion of the Legislature that there was no possibility of permanent tenancy existing in such villages, it should have been excluded with the other sections excluded by Section 33 of the Talukdari Act. On the other side we have the fact that for many years the tenants of these lands have been selling and mortgaging them and treating them as if they had a valuable right in them greater than that of tenants at will or annual tenants. I find amongst the papers a document bearing, date July 11, 1876, that is of the same year as Sir James Peile's report, by which the khed had (right of cultivation) in one of these fields was mortgaged, and there are other old documents of 1872, 1878 and 1882 which show that the khed hak was at times sold. V These documents certainly suggest the inference that at that time the tenants believed that they had something more than the right of annual tenants or tenants at will; and since they found persons willing to buy and to advance money on those lands it may be inferred that the general public were of the same opinion. It is a fact, too, that the talukdar accepted the purchasers and mortgagees as tenants without objection. This evidence which dates as I have said from a time contemporaneous with Sir James Peile's inquiries, creates a doubt as to the accuracy of the information which he received, and very much weakens the effect of that evidence. Since, then, the onus of proof was on the talukdar, I agree with Mr. Justice Madgavkar that he has failed to satisfy it, The evidence as a whole, in my opinion, falls short of proving a usage of the locality as to the duration of the tenancy being such as pleaded by the talukdar plaintiff.
6. I agree that the appeal must be dismissed with costs.