1. This is a defendants' appeal in a suit by the plaintiffs to recover possession of certain lands. Plaintiffs are landlords and their case in substance is that defendants are their annual tenants of the suit lands which are of the Khoti tenure in the Ratnagiri District and that the defendants ancestors had passed rent-notes or kabulayats from 1855 to 1901 admitting their annual tenancy, and they brought the suit after giving notice to the defendants.
2. The defendants' contention in their written statement was that they were permanent tenants and not annual tenants of these lands, and therefore the plaintiffs had no right to eject them.
3. The material issue framed by the trial Court was, whether the permanent tenancy set up by the defendants was proved. The case was fought in the trial Court on the basis whether the defendants had proved that they were permanent tenants under Section 83 of the Bombay Land Revenue Code, and it was of opinion that although for the purpose of Section 83 of the Bombay Land Revenue Code the origin of the defendants' tenancy could not be ascertained as having arisen in a particular year, the fact that they passed for a period of forty-six years several rent-notes admitting annual tenancy would show that they were not permanent tenants. It, therefore, decreed the plaintiffs' suit.
4. On appeal, the defendants took a further point that even assuming that they were not permanent tenants under Section 83 of the Bombay Land Revenue Code, they were such under Section 5 of the Khoti Settlement Act, 1880, that on the evidence it was established that they were on the land at least from 1848, and that as there was no definite evidence as to who was on the land before that date, a presumption should be made in the defendants' favour that they were on the land in 1845-46 which is the period fixed under Section 5 of the Khoti Settlement Act, under which every holder of Khoti land, who had actually occupied or cultivated the same continuously from any time previous to the commencement of the revenue year 1845-46, had a permanent tenancy in the land so occupied or cultivated. The learned appellate Judge has considered that point in detail and in a lucid and reasoned judgment he, has come to the conclusion that the presumption, which the defendants-appellants had invited the Court to make, would not apply to a case falling under Section 5 of this Act. The learned Judge holds that the evidence established the defendants' possession since 1848, but that there was no definite evidence to show that they were on these lands before that year, and that they would not be entitled to the benefit of Section 5 unless the doctrine of presumitur retro applied to take their possession back at least to the particular year 1845-46. The learned Judge says that where the section lays down the limit of a particular year which is required to be proved by the tenant as the year from which at least his occupancy of the land commenced, the doctrine of presumitur retro had no scope for application.
5. I think the learned Judge was right in that view. That doctrine might apply to a case falling under Section 83 of the Bombay Land Revenue Code where the only thing to be proved is that the origin of the tenancy was lost in antiquity, that is, it cannot be proved to have commenced from a particular year or period. In such cases, if the tenant proves that he was on the land, say, in 1848, and if it is not shown that his occupation commenced in that year, a presumption could be made that his ancestors were on the land even before that date, though there was no presumption as to the actual date from which his occupation commenced. Section 5 of the Khoti Settlement Act requires, however, that the occupation from or before a particular year must be proved, and the burden lies on the tenant to prove that particular fact. The fact that the tenant was proved to be on the land three years after the particular year fixed, would not entitle him to the benefit of the presumption that his tenancy began from or before 1845-46. If this argument is carried to its logical conclusion, a tenant who was on the land, say, in 1860, in absence of evidence as to who was in occupation before, might say that a presumption should be still made in his favour and it should be held that he was in possession in 1845 even though there was an interval of about fifteen years between these dates.
6. Mr. Desai, the learned advocate for the appellants, conceded that it must be a reasonable time, and that it would depend upon the facts of each case, but there is no scope for applying the test of a reasonable period when the section is quite positive in its terms. In such cases it must be definitely proved by the tenant that he was on the land at least from 1845-46. This point does not seem to be covered by any authority of this Court although my attention has been drawn to two unreported cases in both of which it did not directly arise for decision. In Second Appeal No. 709 of 1906 there is a dictum of Mr. Justice Heaton in the appellants' favour. But that was purely obiter, and seems to be only a casual remark in the judgment. In the other case, Second Appeal No. 594 of 1906, there is no judgment of this Court. The appeal is simply dismissed, although in the judgment of the learned trial Judge there seems to be an opinion expressed, by way of obiter, that: the doctrine of pesumitur retro might apply to a case falling under Section 5 of the Khoti Settlement Act. I am, however, of opinion for the reasons given above that whereas the doctrine of presumitur retro might apply to a case falling under Section 83 of the Bombay Land Revenue Code, it has no scope for application to a case falling under Section 5 of the Khoti Settlement Act.
7. Mr. Desai has contended that this doctrine should be applied under Section 114, ill. (d), of the Indian Evidence Act. But that illustration to my mind has nothing to do with the facts of the present case. It says that the Court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence. The point in this case is not that. It is whether, in spite of the particular year laid down in the section, we can ignore it and even though a later year is proved, the possession should be taken to that particular year by a mere presumption.
8. 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 that on the facts of this case the defendants have not succeeded in establishing a permanent tenancy under Section 83 of the Bombay Land Revenue Code on account of the various kabula-yats which they have passed from time to time for a period, of forty-six years admitting their annual tenancy.
9. The result, therefore, is that the decree of the lower appellate Court is confirmed and the appeal is dismissed with costs.