1. This is an appeal under the Letters Patent from the judgment of the learned Chief Justice allowing the plaintiffs' claim for a declaration that the defendants were their annual tenants. It is not necessary to set forth the previous history of this case. It is enough to point out that in November 1919 the case was remanded for the purpose of determining the nature of the defendants' tenancy, as to which the plaintiffs had sought a declaration. Both the lower Courts found that the tenancy commenced after the gift by the original owners in favour of the ancestors of the plaintiffs' predecessor-in-title. They applied the provisions of Section 83 of the Bombay Land Revenue Code and presumed that the tenancy was permanent, mainly relying on the observations in Ramchandra Narayan Mantri v. Anant I.L.R (1893) Bom. 433.
2. When the second appeal came on for hearing, it was held that Section 83 of the Bombay Land Revenue Code did not apply as the commencement of the tenancy was traced, and that it could not be said, as required by Section 83, that by reason of the antiquity of the tenancy no satisfactory evidence of its commencement was forthcoming, having regard to the finding that the tenancy commenced after the gift in favour of the ancestors of the plaintiffs' predecessor-in-title in 1805.
3. The defendants, who have appealed from this judgment, have contended that Section 83 does apply to this case. Though the learned pleader has questioned the finding of fact that the gift in favour of Shantacharya's ancestor was in 1805, and that the tenancy of the defendants commenced thereafter, I do not think that that contention could be allowed. Both the lower Courts have found that as a fact, and it is not shown, nor is it suggested in the memorandum of appeal, that that finding is not supported by the evidence in the case.
4. For the purposes of the pain argument, therefore, it must be accepted as a fact that the tenancy commenced in or after 1805. It is quite true, as found by the lower Courts, that thereafter the defendants have been in possession of the land on payment of a fixed sum of Rs. 8 either by way of assessment or rent. It is not possible, however, to apply the provisions of Section 83 of the Bombay Land Revenue Code, as the commencement of the tenancy is traced. It seems to me that the view taken by the learned Chief Justice on this point is right, and the observations in Ramchandra v. Anant I.L.R (1893) Bom. 433 must be taken to have been made with reference to the facts of that particular case, and cannot be so read as practically to modify the terms of the section.
5. In view, however, of the observations of the lower Courts in their judgments we adjourned the hearing of the appeal on the last occasion to have certain necessary documents translated in order to see whether apart from Section 83 there was anything in the case to show that the tenancy in favour of the defendants was of a permanent character. Having regard to the length of time for which they had been in possession on payment of a fixed sum, it seemed to us necessary in the interests of justice to see whether the plea of permanent tenancy might be otherwise made out. It must be said, however, with reference to this aspect of the case, that no such point was taken either before the learned Chief Justice when the second appeal was heard, nor is it taken in the memorandum of appeal now. After having read the documents I am unable to hold that there is any real basis for the inference that the tenancy was of a permanent nature. Exhibit 76 is the most important document on this point. It has been read and discussed before us. I am satisfied that there is nothing in that document to support the inference that the tenancy was of a permanent nature. On the contrary it seems to me from the letter, the date of which cannot be ascertained, that Shantacharya, who was the father of the plaintiffs' vendor, wrote to one of the defendants, representing the tenants, that it was not fair on his part merely to offer the assessment, but that he should hand over the land to him (Shantacharya), particularly when he or his ancestors had helped Shantacharya's ancestors in retaining the benefit of the gift which the other members of the Nadgir family had made in favour of Shantacharya's ancestors. The letter, as I read it, shows that Shantacharya then appealed to the Nadgir tenant that it was proper for him to hand over possession of the land to him. This position becomes intelligible on the footing that the Nadgirs were not the permanent tenants of Shantacharya and that they were liable to restore possession to him. On a consideration of this letter and other documents, to which we have been referred, I am satisfied that there is no sufficient basis for inferring that the defendants are permanent tenants. I would, therefore, dismiss the appeal with costs.
6. I agree with the construction put upon Section 83 of the Bombay Land Revenue Code in the judgment of the learned Chief Justice and that the presumption under that section is not available to the tenants in this case. I agree also that the further documents which we have had translated for the purposes of this appeal do not disclose evidence that the tenancy was as a matter of fact a permanent tenancy. Shantacharya's letter, Exhibit 76, shows that he originally derived title to the land in suit from the ancestors of the present defendants. Shantacharya's title was attacked by one Ittaji Subappa, and the defendants' ancestors assisted Shantacharya in repelling that attack by suit. The defendants' case is that as a reward for that assistance they were granted the tenancy of the land in suit. That is probably true. But the letter Exhibit 76 does not show that that tenancy was a permanent tenancy. Per contra in that letter Shantacharya seems to be protesting against the defendants retaining the tenancy. However they did remain in possession as tenants; and the further documents, i.e., the rent receipt in 1899, Exhibit 79, and the notice, Exhibit 28, in 1901, go no further than to establish, what is in fact admitted, that the defendants had as a matter of fact paid rent at an unvarying rate of Rs. 8 per annum ever since they got their tenancy. But it cannot be inferred from that that the tenancy is not annual. Therefore I agree that this appeal should be dismissed with costs.