1. In this case the plaintiffs sued to recover possession of the lands in suit from the defendant on the allegation that he was their annual tenant, that in 1912 the plaintiffs demanded enhanced rent from the defendant's predecessors-in-title and they gave up the land pleading their inability to give enhanced rent, that thereafter the plaintiffs leased the lands to one Bhau Satgauda Patil under a rent-note for ten years, that Bhau was obstructed in his vahivat by the defendant's predecessors-in-title Sakra and Ningappa, that Bhau brought Suit No. 545 of 1913 to recover possession but the suit was dismissed, and that notice to quit was given at the end of August 1918 to the defendant Rama Babaji and to Ningappa. The defendant's case was that his family held the lands from ancient time as permanent tenants on a fixed yearly rent of Rs. 40, that the defendant's family had been all along in possession, that the suit brought by Bhau Satgauda Patil was instituted at the instance of the plaintiffs, that the present plaintiffs were practically the plaintiffs in that suit, and that the present suit is barred by res judicata by virtue of the decision in that suit, in which it was held that the defendant's family were permanent tenants at a fixed rent. In the lower Court the issue on the question of res judicata was heard as a preliminary issue and the First Glass Subordinate Judge, Mr. Natu, held that the present suit was not barred by res judicata by virtue of the decision in Bhau Satgauda Patil v. Rama Bahiru. (1918) F. A. No. 261 of 1915, decided by Batchelor and Kemp JJ., an February 2, 1918 (Unrep.) The case was heard on the merits by Mr. Kamat, who held that the permanent tenancy alleged by the defendant was proved and that the plaintiffs were not entitled to the possession sought. The plaintiffs have filed this appeal from the decision of the learned First Class Subordinate Judge, Mr. Kamat, who dismissed the suit with costs.
2. Mr. Desai, the learned pleader on behalf of the appellants, has argued before us three points in appeal to support his contention that the defendant's family was not in possession as permanent tenants. The first point raised by him is that the lands were granted in 'inam' to the plaintiffs' family in the year 1758-59 by Shambhu Maharaj of Kolhapur. He relies for this purpose on the decision of the Inam Commissioner, Exhibit 43, dated April 30, 1859, and the Sanad, Exhibit 164. His contention is that defendant's family are admittedly on the land since 1857, and must have come into possession sometime after the grant of the Inam to the plaintiffs' family, and therefore there is satisfactory evidence of the commencement of the tenancy of the defendant's family, inasmuch as it must have come into existence at some time between 1758 and 1857. Mr. Desai also contends that the mere length of possession is not sufficient to raise the presumption under Section 83 of the Bombay Land Revenue Code if the commencement of the tenancy is proved, and he relies on the case of Gangabai v. Kalapa Dari Mukrya I.L.R. (1885) 9 Bom. 419 where it was held that (p. 422) 'there is nothing to prevent a tenancy from year to year continuing for a century, or even longer, if neither the landlord nor the tenant chooses to put an end to it.' Mr. Desai's further contention is that it is not necessary to prove that the tenancy commenced in a particular year, but it is sufficient if the origin of the tenancy can be traced back to a definite period, and he relies upon the case of Narayan v. Pandurang : (1922)24BOMLR831 where the period was a period of twenty years from 1830 to 1850 and it was held that it was sufficient to negative the presumption under Section 83 of the Bombay Land Revenue Code. Fawcett J. in that case remarked (p. 834):-
Once you get a particular time as in this case you get the years 1830 to 1850 between which the tenancy must have begun, then there is a commencement within a certain period shown which bars the presumption arising. At the same time this treatment of a 'period' as sufficient to satisfy the requirements of a, 83 must of course be applied with reasonable limits. I do not for instance mean to say that it would suffice to show that a tenancy had commenced after the flood.
The learned Subordinate Judge held that the period between 1758 and 1912 or 1857 is too long and obscure to be treated as a definite period constituting satisfactory evidence of the commencement of the tenancy within the meaning of Section 83. Assuming that a short period of years is a definite period constituting satisfactory evidence of the commencement of tenancy within the meaning of Section 83, I think that the period of a century is too long and indefinite a period to constitute satisfactory evidence of the commencement of a tenancy within the meaning of Section 83. The contention of the appellants is, however, opposed to the ruling in Ramchandra Narayan Mantri v. Anant I.L.R. (1893) 18 Bom. 433 where it was held that 'the mere fact that a tenancy has commenced subsequently to the commencement of the landlord's tenure, does not prevent the application of Section 83 of the Bombay Land Revenue Code... in cases where by reason of the antiquity of the tenancy no satisfactory evidence of its commencement is forthcoming.' The same view was taken in Hari Vasudev Atre v. Tukaram. (1893) P.J. 323 In Sidhanath v. Chiko : AIR1921Bom454 Sir Norman Macleod C.J. held (p. 536):-
But if he can show that he has been on the land so long that the commencement of his tenancy cannot be ascertained, then the presumption under para 2 of Section 83 arises, and it was held in Ramchandra v. Anant that even although it was proved that the origin of the tenancy was of a later date than the lessor's tenure, still the presumption would arise, provided, as I take it, that the actual date of the origin was not known.
3. The case of Ramchandra v. Anant was criticised on another point, namely, that the words 'orgin of the tenancy' did not mean the terms under which the tenant commenced to hold. Fawcett J. in the case of Narayan v. Pandurang : (1922)24BOMLR831 :-
I agree with my learned brother that there is no reason to differ from the view taken in Ramchandra Narayan Mantri v. Anant that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not prevent the application of Section 83 because there may be cases where in spite of that the commencement of the tenancy is in obscurity.
We think, therefore, that the first point raised by Mr. Desai fails. [His Lordship after discussing further evidence on the point concluded as follows :-]
4. We think, therefore, that by reason of the antiquity of the defendant's tenancy there is no satisfactory evidence of the commencement of the tenancy of the defendant's family, and under Section 83 of the Bombay Land Revenue Code the tenancy of the defendant's family is permanent.
5. Mr. Nilkant on behalf of the respondent supported the decision of the lower Court on the points decided in his favour but contended that the decision of the lower Court on the point of res judicata was erroneous. Mr. Nilkant contended that the present plaintiff No. 1 and the deceased father of plaintiff No. 2 were actively assisting Bhau in Suit No. 545 of 1913 and had caused Bhau to file the said suit and were practically the plaintiffs though they did not appear as plaintiffs formally, and therefore the decision in Suit No. 545 of 1913 operated as res judicata. He relied on the case in Shangara v. Krishnan I.L.R. (1891) Mad. 267 where it was held that a decision in a suit brought by the benamidar was binding on the real owner. The case of a benamidar is quite different to the case of Bhau Satgauda, the tenant, who brought the previous suit. Though a benamidar has no beneficial interest in the property, he represents in fact the real owner. Their Lordships of the Privy Council in Our Narayan v. Sheo Lal Singh :-
Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action ; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him.
The benamidar occupies a representative capacity and it is possible that in cases where a suit is brought in a representative capacity the decision in the suit may be binding on persons who may not be parties to the suit or claiming through them, as for instance a decree fairly and properly obtained against a Hindu widow may bind the succeeding heirs because the whole estate is for the time being vested in her: see Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A. 539 and Ramsumran Prasad v. Shyam Kumari. (1922) 25 Bom. L.R. 634So also the next Saranjamdar may be barred by the principle of res judicata by virtue of the judgment obtained against the former Saranjamdar : see Madhavrao Hariharrao v. Anusuyabai. I.L.R. (1916) 40 Bom. 606 But the reason why the previous decision operates as res judicata against other persons who are not parties to the previous suit or literally claiming through them, is that the previous suit was either brought by or against persons who occupied a representative capacity. In the present case the tenant of the present plaintiffs, who brought the suit No. 545 of 1913, did not occupy a representative capacity and the present plaintiff, who is the lessor, cannot be said to be a person claiming through Bhau who was his lessee. It has been held by the Calcutta High Court in Rambrohmo Chuckerbutti v. Bunsi Kurmokar (1882) 11 C.L.R. 122 and in Brojo Behari Mitter v. Kedar Nath Mozumdar I.L.R. (1886) Cal. 580 that the decision in a suit by the lessee cannot operate as res judicata against a person claiming the same property through the lessor; and that a lessor cannot be considered as a party claiming under his own lessee. In Gokul Mandar v. Pudmanund Singh I.L.R. (1902) Cal. 707 their Lordships of the Privy Council observed when dealing with the question of res judicata that (p. 715) 'the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.' We think, therefore, that the decision in the previous suit No. 545 of 1913 (Bhau Satgauda v. llama Bahiru) does not operate as res judicata.
6. The result is that, in my opinion, the decision of the lower Court is correct and this appeal should be dismissed with costs.
7. I agree. With regard to the question of the application of Section 83 of the Bombay Land Revenue Code, the tenancy in question can certainly claim to be of antiquity in view of the fact that it may have gone back to the year 1758 if not earlier, and it is in consequence of that antiquity that I think there is an obscurity as to the commencement of the tenancy. I quite agree that logically Mr. Desai for the appellants can contend that a period of a hundred years falls within the view taken in Narayan v. Pandurang(1), but as there mentioned, some reasonable limits must be applied, and I think that, at any rate, a period of hundred years is too long to satisfy that condition. The learned Subordinate Judge has written a full and careful judgment in which he has considered all the questions arising, and there is, in my opinion, no adequate reason for our interfering with his decree.