1. These are some thirty-three appeals from the judgment of the District Judge of Ahmedabad reversing the decision of the Subordinate Judge and dismissing the plaintiffs' suits with costs. The suits nil raise the same point. They are brought by the plaintiffs as the Thakors of Mohoghar claiming that they hold in joint ownership the wanta of the village of Mehmadpura. This wanta consists in all of 104 acres, of which 94 acres are in dispute in this and the companion suits, so the learned District Judge tells us.
2. The principal point in dispute is as to whether the defendants are annual tenants us the plaintiffs contend, or whether they are permanent tenants as the defendants contend. There is a subsidiary point, as to whether, even if the defendants are annual tenants, the plaintiffs are entitled to enhance the rent. It appears that by an alleged notice to quit, dated February 5, 1916, the plaintiffs called on the defendants to pay an increased rent and to sign a writing to that effect, and that in default they were to give up possession. This was to be done within ten days. The defendants replied repudiating the right of the plaintiffs to give this notice and claiming that they were permanent tenants. Consequently in the same year 1916, Suit No. 136 of 191 (i wan brought by the plaintiffs but was subsequently withdrawn with permission to bring another suit. Thereafter, namely, on November 26, 1918, this present Suit No. 288 of 1918 and its companion suits were brought.
3. Now in thin case we have the advantage of a particularly clear judgment of the learned District Judge, which relieves me from the necessity ot setting out the facts or the reasons for our judgment in any great detail. The case largely turns upon Section 83 of the Bombay Land Revenue Code, which provides that :-
Where, by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if tiny, agreed upon between the landlord and tenant or those under whom they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.
4. The defendants' case is that this village of Mehmadpura was founded about 1655 A. D. and they trace their connection with this village back to that date. It would appear that the first appearance of the defendants' names or their ancestors in the plaintiffs' books is in 1876. But it would also appear from some of the earlier books produced by the parties that prior to that date, viz., in 1869, the defendants' names or those of their predecessors appear amongst the patils who were then cultivating this land according to the plaintiffs' accounts. What the learned District Judge says is this : ' This statement of the defendants derives corroboration from the fact that in the account books for the previous years commencing from the Sam vat year 1905 produced by the plaintiffs, the lands are shown as being cultivated by Patel samasth, i.e., body of Patels, without mentioning individual names.'
5. Following that out when one turns to certain accounts produced by the defendants, that shows how these patels dealt with the produce of the rent or the produce of the land, and the defendants' ancestors are shown in that account as getting a share of these rents. So that takes us back a little earlier, viz., to 1869. And there is one further point, viz., that the lower appellate Court has found that the plaintiffs have not produced all the books which one would expect them to produce.
6. Then comes the question of the rent or salami or giras, whatever may be the true expression. The finding of the lower appellate Court is: ' In the present case I think the evidence taken as a whole leads to the conclusion that the defendants have been paying rent at a uniform rate.' Then lower down the same judgment runs : ' Taking the evidence as a whole, I think the reasonable conclusion is that the defendants have been paying a uniform rate of rent to the plaintiffs.' Then so far as the evidence of the plaintiffs is concerned, the learned District Judge summarizes on page 4 the evidence of the plaintiffs themselves. Shortly stated, they said they did not know when the ancestors of the defendants were let into possession or on what terms. As regards the plaintiffs' Karbhari, Exhibit 104, he states that so far as his knowledge goes, the defendants have been paying a fixed rent, but he knows nothing about the origin of the tenancy or about the quantum of rent. He only repeats the report that he has heard that certain Mahomedan cultivators were in possession of the land to a certain date.
7. After a consideration then of the whole facts of the case, the learned District Judge came to the conclusion that the facts fell within Section 83 of the Bombay Land Eevenue Code, and that the Court was entitled to presume this tenancy to be a permanent tenancy. It has been argued before us strenuously by the appellants that this was an error of law on the part of the District Judge inasmuch as the defendants' own case stated what the commencement of the tenancy was; and that on the rulings of this Court where once you find a definite commencement of a tenancy, then there is no room for the presumption to be raised under Section 83. As far as the authorities of this Court are concerned they are naturally binding on us, and one can quite understand that if you find a definite and recent date when an actual tenancy began, it would be wrong in such a case to raise a presumption under Section 83. Similarly, under English law, my brother Fawcett has in Narayan v. Pandurang : (1922)24BOMLR831 pointed out that in England a plea based on immemorial custom might be defeated by proof that it began within legal memory, viz., after 1189 (see Halsbury, Vol. X, p. 283) and the same might apply as regards certain claims based on prescription at common law. (See Halsbury, Vol. XI, pp. 260-61).
8. But, on the facts of this particular case, I entirely agree with the learned District Judge that the commencement of this tenancy is not definitely shown. No doubt the witnesses have put forward the origin of it to the foundation of the village. But, if one follows that argument out, one might say that a tenancy in a particular case must have begun by say the year 1200 in a particular town because one knows that prior to that date no such town or village existed whatever. It seems to me that it does not follow that because the defendants trace their origin and connection with this land back to the foundation of the village, that it necessarily follows that their particular tenancy or that of their ancestors began on that particular definite date. On the contrary when one goes back, as in the present case, to such a distant date as over 250 years ago, one certainly gets the antiquity contemplated by Section 83. And I think on the facts of the present case there is quite enough uncertainty as to the commencement of the tenancy, and also as to its terms, to justify the presumption under Section 83.
9. Nor can I accept the argument that was put forward in the alternative, viz., that if you do not fix the commencement of the tenancy definitely at the foundation of the village, then no commencement of the tenancy is shown before 1876 or some such time. That would be to neglect amongst other things the oral evidence of the defendants as to the possession of this land by themselves or their ancestors. It would also be to ignore the admissions of the plaintiffs themselves that they are unable to account for the original possession of this land by the defendants and their ancestors. In other words we get exactly a class of case where the origin of a particular right of an occupier or tenant in lost in antiquity.
10. That being so, in my judgment the lower appellate Court arrived at the right conclusion on the question whether the defendants were annual tenants or permanent tenants, and that the finding that they were permanent tenants ought to be upheld.
11. Then a point was taken that, even if they were permanent tenants, they denied their landlords' title, and therefore that involved forfeiture. This is based on what in my opinion is a very narrow construction of the written statement of the defendants. There they pleaded first of all that they were old and permanent cultivators, that they were not tenants at will or annual tenants of the plaintiffs, but that they cultivated the land under the right of ownership or permanent tenancy since the time the village of Mehmadpura was founded, and they had been paying to the plaintiffs a fixed Salami from the time of their ancestors.
12. As regards the word translated 'ownership' the word used in the vernacular is Maleki. And one knows from other cases that the word Malek or Maleki is often used in a sense which certainly cannot on investigation justify the suggestion of an absolute owner or ownership in law. I am satisfied that the real case put forward by the defendants was that they were permanent tenants, and that they never denied that the plaintiffs were their landlords. Nor is there anything in the issues raised in the trial Court to suggest anything of the sort. The main issues were issues Nos. Sandy, The one raised a point whether the plaintiffs proved a tenancy from year to year. Issue No. 9 raised a question whether the defendants were permanent tenants of the disputed laud. One may also say that where you find permanent tenants at what has been found to be hero a uniform rent, their position after all does not differ very greatly from that of owners. Even an owner in fee simple who is liable to pay a certain fixed fee farm or quit rent in one sense is not an absolute owner of the land, because ho has to pay this particular annual sum. But in the ordinary acceptation of the word, he undoubtedly would be looked upon as an owner not only by laymen but also by lawyers.
13. Then the next question is as to the validity of the notice to quit given by the plaintiffs. That point in the view I take it is unnecessary to decide, because I hold that the defendants were permanent tenants. But supposing they were annual tenants, then it is conceded that a notice to quit had to be given under Section 84 of the Bombay Land Revenue Code which runs : 'An annual tenancy shall in the absence of any special agreement in writing to the contrary require for its termination a notice given in writing by the landlord to the tenant, or by the tenant to the landlord, at least three months before the end of the year of tenancy at the end of which it is intimated that the tenancy is to cease. Such notice may be in the form of Schedule E, or to the like effect'. If one turns to Schedule K it will be found that this notice may be in the following form; 'I do hereby give you notice that I do intend to outer upon, and take possession of the land which yon now hold as tenant under me, and yon are therefore required to quit and deliver up possession of the same at the end of this current year, terminating on the day of .' I should here mention that an ' earlier part of Section 84 enacts that 'An annual tenancy shall, in the absence of proof to the contrary, be presumed to run from the end of one cultivating season to the end of the next, The cultivating season may be presumed to end on March 31.'
14. Now the words of the particular notice given by the plaintiffs were:-
You are hereby given notice that within ten days from the date of receipt hereof you should pay over to us rent of the last year and you should give in writing a kabulayat to pay rent for the lands you cultivate, failing which you should hand over to us the lands which yon cultivate, and in default steps will be taken against yon to take over possession from you or obtain any other remedy according to law.
15. I agree with the learned District Judge that on the true construction of this notice, the defendants were required either to pay the arrears of rent or pass a lease within ten days or in default to hand over possession on the expiry of ten days. That being so, the period of three months required under Section 84 was not given. For, I cannot accept the construction which is advanced by the defendants to the effect that we should imply that this notice to quit was to quit at the termination of the cultivating season.
16. It is unnecessary to refer to English authorities to shew the strictness with which notices to quit are there construed, and I do not say that the same rules would necessarily apply in India. But here we have a definite section to guide us, and a definite form of notice, which, though not imperative, still indicates the class of notice which the Indian legislature bad in mind, and that notice would be very much what would be required under English law. After all it is a matter of common sense that if a landlord requires a tenant to go out of possession at a particular date, the specific date on which the tenant is required to quit the property should be given, otherwise the tenant would be left in a state of embarrassing uncertainty as to what arrangements he should make for his future home and for the removal of his furniture and other matters, or else in default of complying with some ambiguous notice ho might be exposed to the nuisance and annoyance of a law suit.
17. In my judgment, therefore, the judgment of the lower appellate Court was correct on this point also, viz., that the plaintiffs did not give a valid notice to quit and that in the absence of such a notice the plaintiffs were not entitled to maintain this suit.
18. Then it was said that apart from that point and even supposing that the defendants were permanent tenants, even then the plaintiffs were entitled to enhance the rent. In this connection it will be remembered that in their pleadings the plaintiffs claimed back rent and possession of the land, and a declaration that they were entitled to increase the amount of rent at their pleasure. No doubt the exception to a, 83 provides that 'Nothing contained in this section shall affect the right of the landlord (if ho have the same by virtue of agreement, usage or otherwise) to enhance the rent payable, or services renderable by the tenant or to evict the tenant for nonpayment of the rent or non-rendition of the services, either respectively originally fixed or duly enhanced as aforesaid.' But here no agreement whatever is proved under which the plaintiffs had any right to enhance the rent, And as regards the usage or otherwise I can only say that I agree with the learned District Judge, when he says there is no issue framed to that effect and no evidence led, and that therefore there are no materials before the Court which would justify an appellate Court in approaching the case from that stand-point.
19. When the learned District Judge says this, it must be remembered that he had already considered earlier in his judgment the question whether the defendants' story that they had paid a uniform rent was true, or whether the plaintiffs' case that the rent had varied was the correct one, As I have already said the learned Judge in at least two passages stated that he had come to the conclusion that the defendants' case that they had paid a uniform rent was the correct one. Consequently it cannot fairly be urged on behalf of the plaintiffs that one should accept the plaintiffs' evidence, viz., that the rent was enhanced, or that a higher rent was paid at certain dates compared with others, and that that accordingly implied the power of the landlord to enhance the rent, and therefore there was evidence to support the alleged usage, and that as regards this particular laud the landlord had the right to enhance the rent. Nor is it fair to the learned District Judge to say that in considering this point about enhanced rent, he did not take into consideration the evidence on the question of rent. He had already done that in the earlier part of his judgment. He had there found that the plaintiffs had failed to make out their case on the point of fact as to the alleged varying rant. Consequently when ho came to this final issue, the existing findings ware of a long tenancy by the defendants at a uniform rent. Consequently on that finding as to the uniformity of the rent, there was no evidence on which you could infer that the landlord had either expressly or by implication a right to enhance the rent.
20. Then it was said the real point in this case was whether the defendants were annual tenants, and that if in fact they were permanent tenants, then we ought to leave open for decision in some future case the question whether the plaintiffs are still entitled to raise the rent, or alternatively we should remand this case back to the lower Court for further findings and further evidence. But this cane began six years ago. The plaintiffs' plaint, as I have already indicated, stated in the clearest terms that they were entitled to increase the amount of the rent at their pleasure It is clear that they could have based their claim alternatively, viz. , that if the defendants were annual tenants, as the plaintiffs claimed, then the plaintiffs were entitled to increase the rent, or to evict them for non-payment or that if alternatively the defendants were permanent tenants the plaintiffs had practically the same rights. In other words it was open to the plaintiffs to prove if they could by proper evidence that whichever was the true legal position as regards the tenancy of the defendants, the plaintiffs were still entitled to enhance the rant, and if necessary to give a notice to quit in default of payment.
21. Under these circumstances I think the learned District Judge rightly decided the appellate issue No. 6 against the plaintiffs.' I also think that we should be entirely wrong if we either remanded this issue for further evidence or left the point open for decision in some other case. In my judgment the decision of the lower appellate Court dismissing the plaintiffs' suit with costs was correct. It follows that in my judgment this appeal should also be dismissed with costs, and that the other companion appeals should also be dismissed with costs, but all this is subject as regards four of the companion appeals to a technical point arising from the death of a sole defendant as to which we will hear the arguments later on,
22. I agree generally with the judgment of my learned brother on the main question whether the defendants are permanent tenants, J think there is certainly no ground for interference with the decree of the lower Court in second appeal. There is evidence which definitely traces back the tenancy to the year 1876, and although the accounts for the preceding years that are produce'! by the plaintiff's do not give the actual names of the cultivators, yet they show that the land was cultivated by certain patels, who, in view of Exhibit 45 and similar Exhibits appear to include ancestors of the defendants, These accounts go back to the Samvat Year 1905 (A. I) 1848-49). Under the circumstances I think an inference arises that in that particular year the defendants' ancestors were cultivating this land and were tenants of the plaintiffs' ancestors.
23. Stress has, I think, been rightly laid by the learned District Judge on the fact that the plaintiffs, who employ Karbharis and keep regular books, have not produced their accounts for previous years, and I entirely agree with him that a strong inference arises that, if they had produced those books, they would not have been in favour of the plaintiffs' case. In these circumstances there is satisfactory evidence that the defendants' ancestors were tenants of the plaintiffs' ancestors even prior to the year 1848, and the origin of this tenancy is lost in the mist of antiquity.
24. I also agree with the learned District Judge and my learned brother that the mere fact that the defendants state that the tenancy began with the foundation of the village in Samvat Year 1712 is not a conclusive statement of the origin of tenancy, which would bar the operation of Section 83 of the Bombay Land Revenue Code. It is obviously a statement based on mere speculation or legend and is not 'satisfactory evidence' of the kind contemplated by Section 83.
25. I also agree that the plaintiffs have not adduced any evidence in this suit, sufficing to show they are entitled to enhance the rent of the defendants on the basis of the defendants being permanent tenants,
26. I concur, therefore, in the order proposed by my learned brother.