1. The plaintiffs-appellants sued for an injunction restraining defendants Nos. 1 to 3 from interfering with their possession and enjoyment of the suit land and, in the alternative, for possession, damages and mesne profits if the said defendants were found to be in possession. Their case was that the land in suit, viz. fifteen gunthas out of survey No. 23, falni No. 3, of village Kondhe, District Ratnagiri, was dhara land of the plaintiffs and defendants Nos. 4 and 5, that this land was partly in the vahivat of the plaintiffs and partly in that of their tenants and that defendants Nos. 1 to 3, about August 17, 1938, obstructed them in their enjoyment of the said land and erected bandhs thereon. The defence of defendants Nos. 1 to 3 was that the suit land, which stood in the plaintiff's khata, was a dhara holding of which they were permanent tenants since times immemorial, that they had been paying a fixed rent therefor and were in actual enjoyment thereof, that they made the bandhs to prevent soil erosion and that they also raised trees thereon.
2. The trial Court found that the plaintiffs had proved their title but that defendants Nos. 1 to 3 were permanent tenants on the land. Accordingly, it dismissed the suit. It negatived the plaintiffs' contention that it was an occupancy tenancy and not a dhara holding, as the plaintiffs in their plaint admitted that it was their dhara land and as an extract from the bot-khat of 1895, exhibit 33, stated that the khot had conferred dhara rights on the khatedar, who was the plaintiffs' ancestor. The trial Court also held that exhibit 60 showed the defendants as permanent tenants, the possession having all along been with them 'since long before human memory can go.' The appeal by plaintiffs Nos. 1 and 2 was dismissed by the District Judge.
3. The important documents in this case are exhibits 33 and 60. Exhibit 33 is an extract of the bot-khat of 1895. It gives the name of the khatedar as Parshuram Raghunath Gadgil, an ancestor of the plaintiffs, and it states that under Section 11 of Act I of 1880 (Khoti Settlement Act) the khot has conferred rights of a dharekari on the khatedar. Below this, under col. 5, the heading of which is, 'Kind (of holding), i.e., inam or khalsa, dhara or khoti', are the words 'khatedar kul', meaning permanent tenant. This document thus appears to show that the plaintiffs were originally permanent tenants and that the khot promoted them to the status of dharekaris.
4. There are three kinds of privileged occupants under the Khoti Settlement Act as denned in. Section 3, viz. (a) dharekaris, (b) quasi-dharekaris, or (e) permanent tenants, who used to be called occupancy tenants before an amendment made in 1913. A dharekari means a land-holder who holds on the dhara tenure, a quasi-dharekari means a land-holder of any ol the denominations named in the first column of the schedule to the Act and a permanent tenant means a holder of khoti land who has a permanent tenancy in such land. Exhibit 60 is an extract of the register maintained under Section 27 of Act I of 1865 (Khoti Leases Act) and Government Order No. 2474 dated April 26, 1876. In this document the rayat's name is given as Parshuram Raghunath Gadgil. Column 3 is headed, 'His statement as to what kind of rights he has', and it is stated therein that the khot has given the dhara rights to him, that Govind Laxman, apparently an ancestor of the defendants, raised a dispute at pot pahani and that he, Parshuram Raghunath, did not agree to half of the land being entered in Govind Laxman's name. Column 4 states that the khot had no objection, and an order dated January 31,1887, is thus recorded:
The land is to be shown as khoti, the khatedar having been given dhara rights by the khot. In 1828 Gadgil was shown as khoti kul in the terij made by the khot. Thereafter the dhara rights were given.
5. There seems, therefore, no difficulty in holding that the Gadgils were originally permanent tenants and then made dharekaris.
6. As to the defendant's position, the trial Court has held that the defendants have been on the land since times immemorial, and the lower appellate Court has concurred in this finding. What then is their legal position with reference to the plaintiffs dharekaris? Mr. Walawalkar for the defendants has relied on Section 83 of the Bombay Land Revenue Code and contended that on the finding of the Courts below that the defendants have been cultivating the land since times immemorial, they must be held to be permanent tenants of the dharekaris. Mr. Desai on behalf of the appellants, however, has argued that every tenant who is a permanent tenant as defined in Section 3 must come within the provisions of Section 5 and that every other tenant, in the absence of any specific agreement to the contrary, must be deemed to be a yearly tenant under Section 8. Section 5 reads thus:
Every holder of khoti land who has actually occupied or cultivated the same continuously from any time previous to the commencement of the revenue year 1845-46 has a permanent tenancy in the land so occupied or cultivated.
7. The occupation or cultivating of the father or other person from whom the present holder inherits, and in the case of permanent tenancies which are transferable otherwise than by inheritance the occupation or cultivating of any former holder through whom the present holder claims, or of any mortgagee or lessee of the present or any former holder, shall be deemed to be the occupation or cultivating of the present holder within the meaning of this section; and, in the case of land which is periodically fallow, years of fallow shall be reckoned as years of occupation or cultivation for the purpose of this section.
Section 8 reads thus:
Tenants other than permanent tenants shall continue to hold their lands subject to such terms and conditions as may have been, or may hereafter be, agreed upon between the khot and themselves, and in the absence of any such specific agreement shall be held to be yearly tenants liable to pay rent to the khot at the same rates as are paid by permanent tenants in the village in which the lands held by them are situate: Provided that the said rates shall not exceed the maxima prescribed in Section 83, Clause (c).
8. Mr. Desai has contended that the special provisions in these sections must prevail over the general law enacted in Section 83 of the Bombay Land Revenue Code. Mr. Walawalkar's contention is that Section 8 deals only with the tenants of the khot and that tenants of dharekaris are not dealt with by the Act anywhere. This argument seems to be supported by the language of the said section. It speaks of terms and conditions agreed upon or to be agreed upon 'between the khot and themselves' (tenants).
9. In Sonu v. Shankar (1937) 40 Bom. L.R. 534 the plaintiffs were khots and the defendants were their tenants, and the question for consideration was whether they were annual or permanent tenants. The defendants relied on both Section 83 of the Land Revenue Code and Section 5 of the Khoti Settlement Act, and both these pleas were negatived. Mr. Justice Divatia observed (p. 538):
A further interesting question might arise whether, to a case falling under Section 5 of the Khoti Settlement Act Section 83 of the Bombay Land Revenue Code would apply or not, because by a legislative amendment in the year 1913 the words 'permanent tenancy' in Section 5 have been substituted for the words 'occupancy right' which existed before. So that Section 5 of the Khoti Settlement Act becomes an enactment under a special legislation as regards permanent tenancy, while Section 83 remains a general enactment. It is well known that where there are two such enactments, the special one should apply and not the general one. But it is not necessary for me to decide that point here because I agree with the lower Courts.... on the facts of this case....
10. The question, however, that has arisen in this case is not the same as arose in that case. Here I am concerned with the position of tenants of a dharekari, whereas there the question was as regards the tenants of the khots themselves. That the Khoti Settlement Act, which was enacted one year after the Land Revenue Code, is not intended to be an Act independent of the latter would appear from Yesa bin Rama v. Sakharam Gopal.1 There it was pointed out that the privilege common to the class of privileged occupants as declared under Section 7 is acquired and ascertained in circumstances described in Sections 5, 6 and 11, and it was observed (p. 297):
All these 3 sub-divisions (sub-divisions of privileged occupants) are within the definition in Section 3(14) of the Bombay Land Revenue Code, 1879, of inferior holders, and are included accordingly in those provisions of Part II of the Khoti Act which appears under the heading of inferior holders and that the class of ordinary tenants as defined in Section 8 'come within the provisions of Section 84 of the Bombay Land Revenue Code, 1879, and their holdings are terminable, therefore, by the three months' notice therein prescribed.' It seems to me that the contention of Mr. Walawalkar that the word 'tenants' means only tenants of the khot and is exclusive of the tenants of dharekaris is correct and that there is prima facie no reason why the provision of Section 83 of the Land Revenue Code should not apply to them. In Krishnaji Vasudev Gadre v. Ragho Amrita Zujain2 the dispute was between the plaintiff, a khot of a village, and certain defendants whom the plaintiff was seeking to eject. It was argued on behalf of the plaintiff that Section 83 had no application to a case under the Khoti Settlement Act, but this argument was negatived on the ground that the presumption provided by Section 83 is perfectly legitimate in all localities to which the Land Revenue Code properly applies and that there is nothing in the scheme of the Khoti Settlement Act against permanent tenancies; and the case was remanded for a finding on the issue:
Whether it is established in this case that by reason of the antiquity of the tenancy no satisfactory evidence of its commencement is forthcoming.
11. There is no doubt that subsequently to this decision the expression 'permanent tenancy' has been introduced in the Act, and the difficulty mentioned by Divatia J. may arise when the question of permanent tenancy arises in respect of a knot's tenant. But there seems to me no reason why the view taken above should not apply to dharekaris' tenants. If so, not Section 8 of the Khoti Settlement Act but Section 83 of the Land Revenue Code will apply.
12. The defendants, therefore, were rightly held to be permanent tenants of the dharekaris and the appeal must be dismissed with costs.