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Janardan Narayan Dhapre Vs. Lakshman Mahadev Deshpande - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 427 of 1928
Judge
Reported in(1931)33BOMLR551
AppellantJanardan Narayan Dhapre
RespondentLakshman Mahadev Deshpande
DispositionAppeal allowed
Excerpt:
.....lands in suit, and therefore came to the conclusion that the defendants' family came to occupy the land after the year 1758. there is no evidence as to who was in possession between the years 1758 and 1860. the learned subordinate judge, therefore, held that as the history of the tenancy of the suit land for about one hundred years was not clearly established the tenancy of the defendants was not necessarily lost in antiquity, and following the decision in narayan v. pandurang (1922)24bomlr831 ,held that the defendants failed to prove the presumption arising under section 83 of the bombay land revenue code. we think that in the present case the plaintiffs have failed by satisfactory evidence to prove the commencement of the tenancy, and that by reason of the antiquity of the tenancy..........it is sufficient to show that the tenancy must have commenced after a particular year. but that it is not sufficient to show that the tenancy must have commenced after a particular year is clear from the judgment of this court in narayan v, pandwang : (1922)24bomlr831 where fawcett j. said (page 835):--there is no reason to differ from the view taken in ramchandra narayan mantri v. anant ilr (1893) 18 bom. 433 that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not prevent the application of section 83 because the may be cases where in spite of that the commencement of the tenancy is in obscurity. 8. it is clear that in every case, where a tenancy is shown to have commenced subsequent to the landlord's tenancy, and the date of the commencement of.....
Judgment:

Patkar, J.

1. This is a suit brought by the plaintiffs-respondents to recover possession of the land in suit on the ground that the land was their ancestral property and that the defendants were their annual tenants.

2. The defendants contended that the grant to the plaintiff's was of the royal share of the revenue and was not of the soil, and that the defendants were permanent tenants, under Section 83 of the Bombay Land Revenue Code.

3. Both the Courts have found that the grant to the plaintiffs was of the soil. The learned Subordinate Judge found that in the year 1758 one Kasi Ghadge was the tenant of the lands in suit, and therefore came to the conclusion that the defendants' family came to occupy the land after the year 1758. There is no evidence as to who was in possession between the years 1758 and 1860. The learned Subordinate Judge, therefore, held that as the history of the tenancy of the suit land for about one hundred years was not clearly established the tenancy of the defendants was not necessarily lost in antiquity, and following the decision in Narayan v. Pandurang : (1922)24BOMLR831 , held that the defendants failed to prove the presumption arising under Section 83 of the Bombay Land Revenue Code.

4. The learned Assistant Judge held that though the period of one hundred years was too long a period to satisfy the conditions laid down in the earlier ruling distinguished the present case from the later decision in Shripadbhat v. Rama (1926) 29 Bom. L.R. 274, on the ground that it was shown by the plaintiff's that at some distant period in the year 1758 there was another tenant Kasi Ghadge and the defendants' tenancy could not have extended beyond the period 1758, and therefore confirmed the decision of the Subordinate Judge.

5. Under Section 83 of the Bombay Land Revenue Code the landlord must give satisfactory evidence of the commencement of the tenancy; and 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 any, 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. Ordinarily the landlord must prove the commencement of the tenancy by proving the particular day, month and year on which the tenancy commenced by production of the lease or a rent-note. It was, however, held in Narayan v. Pandurang : (1922)24BOMLR831 that in the absence of proof of the commencement of the tenancy in a particular year a definite period from 1830 to 1850 might be considered to be sufficient to show the commencement of the tenancy in order to counteract the presumption under Section 83 of the Bombay Land Revenue Code. In Shripadbhat v. Rama a period of one hundred years was considered to be too long a period to satisfy the condition laid down by Section 83 to denote the commencement of the tenancy.

6. It is urged on behalf of the respondents that if it is proved that the tenancy of the tenant could not be traced back beyond a particular year it would be sufficient evidence which would go to counteract the presumption under Section 83 of the Bombay Land Revenue Code. It was held in Narayan v. Pandurang : (1922)24BOMLR831 , following the decision in Ramchandra Narayan Mantri v. Anant ILR (1893) 18 Bom. 433, that the mere fact that a tenancy has commenced subsequent to the commencement of the landlord's tenure, 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.' The fact that a tenancy could not be traced beyond the year in which the landlord's right commenced is not sufficient according to decided cases to prevent the application of Section 83 because in spite of it the commencement of the tenancy may be in obscurity. In the present case in view of the fact that there was another tenant on the land at Home distant period in the year 1758 coupled with the fact nothing is known for a period of more than one hundred years till the year 1860, it is difficult to say that the landlord has given satisfactory evidence of the commencement of the defendants' tenancy. According to the view of Fawcett J. in Shripadbhat v. Rama (1926) 29 Bom. L.R. 274, some reasonable limits must be attached to the period sought to be proved on behalf of the landlord to denote the commencement of the tenancy. In the case of Ramchandra v. Dattu : AIR1926Bom55 , relied on by the respondent's counsel, the land was shown to be waste in 1851 and possession of the defendant's family commenced in 1865. There was, therefore, the definite period of fourteen years in which the defendants' tenancy commenced. Fawcett J., however, explained his judgment in Narayan v. Pandurang : (1922)24BOMLR831 by stating that there was no ground for saying that a particular year was outside the limit contemplated by Section 83 in regard to proof of commencement of tenancy, and if a number of months can be taken as a reasonable period, the period of a number of years would be equally justifiable to denote the period of the commencement of the tenancy. Fawcett J. in the later case, however, held that some reasonable limits must be applied and that at any rate a period of hundred years is too long to satisfy that condition. We think that in the present case the plaintiffs have failed by satisfactory evidence to prove the commencement of the tenancy, and that by reason of the antiquity of the tenancy satisfactory evidence of its commencement is not forthcoming There is neither any evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, nor is there any evidence of any usage of the locality as to the duration of such tenancy. We think, therefore, that the presumption under Section 83 arises in the circumstances of the present case. The result, therefore, is that the appeal must be allowed, and the plaintiffs' suit must be dismissed with costs throughout.

Broomfield, J.

7. The plaintiffs' family held the suit land as their watan since A.D. 1606. In 1758 there was a tenant on the land named Kasi Ghadge through whom the defendants do not claim, The ancestor of the defendants is shown to have been in possession in 1860. But there is no evidence to show who was in possession between A.D. 1758 and 1860. On these facts the question is whether it can be said that there is no satisfactory evidence of the commencement of the defendants' tenancy within the meaning of Section 83 of the Bombay Land Revenue Code. If at the most we are able to say that the tenancy must have commenced at some time in the period of one hundred and two years between A.D. 1758 and 1860 it is obvious that the evidence can only be said to be 'satisfactory' in a very limited sense. Can it be said to be sufficiently satisfactory to defeat the presumption which otherwise arises under Section 83? On that point there is what appears to me to be very clear authority in the case of Shripadbhat v. Rama (1926) 29 Bom. L.R. 274, where it was held that in a case where the commencement of a tenancy could only be fixed within the period of one hundred years, that is not satisfactory evidence and that the presumption of permanent tenancy did arise. The learned Assistant Judge has attempted to distinguish this case (which had not been reported at the time the trial Court dealt with the case) on the ground that there is evidence that another tenant other than the defendants was on the land in A.D. 1758, whereas in Shripadbhat v. Rama the evidence did not show whether there had been any other tenant or not. Mr. Nadkarni for the respondents considers that this circumstance is important because it shows that defendants' tenancy commenced after 1758, and he argues that it is sufficient to show that the tenancy must have commenced after a particular year. But that it is not sufficient to show that the tenancy must have commenced after a particular year is clear from the judgment of this Court in Narayan v, Pandwang : (1922)24BOMLR831 where Fawcett J. said (page 835):--

there is no reason to differ from the view taken in Ramchandra Narayan Mantri v. Anant ILR (1893) 18 Bom. 433 that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not prevent the application of Section 83 because the may be cases where in spite of that the commencement of the tenancy is in obscurity.

8. It is clear that in every case, where a tenancy is shown to have commenced subsequent to the landlord's tenancy, and the date of the commencement of the landlord's tenancy is known, it could be said that the tenancy must have commenced after a particular year. In my opinion the circumstance that a tenant other than defendants is shown to have been on the land in 1758 makes no material difference. The decision in Shripadbhat v. Rama covers the case, and I agree that the appeal must be allowed.


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