Norman Macleod, Kt., C.J.
1. The plaintiff sued to obtain possession of the lands described in the plaint, or in the alternative for a declaration that he as inamdar was entitled to demand enhanced rent from the defendants, stating that the lands belonged to the Deshpande family as inam watan lands.
2. The defendants admitted that the lands were watan inam lands; but they contended that the lands belonged to them as their ancestral properties; that they were in possession from ancient times; that the ancestors of the plaintiff had got the right to recover the Government assessment only from them and accordingly they used to pay Rs. 31-32 only in the Khata of Ramchandra Gopal for the judge that they were not annual tenants; that no proper notice was given to them by the plaintiff; that the father of the plaintiff had instituted Suit No. 34 of 1891 against their ancestors; that in that suit their ancestors had claimed the lance as of their ownership; and that since then they were in possession adversely to the plaintiff and his father for more than twelve years.
3. It was found in the lower Court that the lands in dispute were the watan inam lands of the plaintiff's family, that on account of the antiquity of the defendants' tenancy there was no satisfactory evidence of its commencement, and therefore under Section 83 of the Bombay Land Revenue Code the presumption arose that as against the inamdar's family there was fixity of tenure. The learned Judge said :-
I therefore hold that the defendants are permanent tenants. The usage to enhance the rents of permanent tenants is very widely known and well understood. Such tenants are liable to have their rents enhanced by their land, lords : 22 Bom. L, R. 717.
4. He held that the plaintiff's suit was not barred by adverse possession and that the defendants were liable to pay the enhanced rent. Accordingly he gave a decree to the plaintiff for Rs. 65 for the year 1917-18
5. In appeal the learned Judge said:-
The plaintiff's right to enhance was distinctly denied in Suit No. 34 of 1891 in the written statement Exhibit 88, The suit was dismissed owing to a compromise. Then in 1911 they were still obdurately denying the right to enhance. This is clear from the notice Exhibit 72. This state of things continued until the present suit. Thus For twelve years and more before suit the right to enhance was adversely held against the plaintiff.
6. Accordingly the plaintiff 's suit was dismissed.
7. We have been referred to the Full Bench decision of this Court in Radhabui v. Anantrav Bhagvant Deshpande I.L.R.(1885) 9 Bom. 198 in which it was held that in the absence of fraud and collusion adverse possession for twelve years during the life time of one holder of service watan lands would be a bar to succeeding holders. The contest in that ease was between an entire stranger holding adverse possession of the watan lands on the one hand and the watandars on the other. There must be a distinction with regard to the question of adverse possession when the contest is between a tenant already in possession of the watan land as a tenant and the watandar.
8. In Gopalrao v. Mahadevrao I.L.R. (1895) 21 Bom. 394 it was held that the inamdar'a right to enhance the rant and to recover the land in default of payment of such rent was barred by limitation, the tenant so far as the right was concerned having been holding adversely to him for more than twelve years. No reasons were given for this decision and the Court merely said (p. 396):-
The defendant, therefore, so far as the right of the plaintiff to enhance the rent and to evict the defendant in default of payment is concerned, has been holding adversely to the plaintiff for more than twelve years, and the plaintiff's right to enhance the rent and to recover the land in default of payment of such rent has become lost by operation of the law of limitation.
9. The question whether persons, who and whose predecessors-in-title, claimed to be, and were, tenants of service watan lands would acquire title to a permanent tenancy of the lands by adverse possession as against the watandars from whom they held was considered in Madhayrao v. Raghunath . The case of Radhabai v. Anantrav was distinguished. Their lordships said (p. 264):-
A careful consideration of Sir Charles Sargent's judgment as given at page 210 of the report, shows that he was considering the question referred to the Full Bench from the point of view of the grantee having been a stranger to the watan It is not necessary for their Lordships to decide in this case whether the answer of the Pull Bench, limited as it must have been to the case of a stranger be the watan, setting up as a defence, twelve years' adverse possession, was or was not correct, although they are constrained to say that it is some what difficult to see how a stranger to a watan can acquire a title by adverse possession for twelve years of lands, the alienation of which Was, in the interests of the State, prohibited....In the present case the defence of twelve years adverse possession as permanent tenants is set up by persons who, and their predecessors-in-title, always claimed to be and were tenants of service watan lands, and in the opinion of their Lordships neither the defendants nor their predecessors-in-title could have acquired any title to a permanent tenancy in the lands by adverse possession as against the watandars from whom they held the lands.
10. If then a person who is in possession of the watan lands as a tenant of the watandar cannot acquire title to a permanent tenancy, that is to say, to fixity of tenure, it is difficult to see how such a tenant can acquire a right by adverse possession to fixity of rent. It may be that, as was held in Gopalrao v. Mahadevrao I.L.R.(1896) 21 Bom. 394 a tenant can acquire a right of fixity of rent as against the immediate holder of the watan, but that would not prevail against the next holder, and in this case the suit having been filed within twelve years of the plaintiff succeeding to the watan, it is not barred. Therefore, following the decision of the Privy Council, we hold that the right of the plaintiff to enhance the rent exists.
11. There was another question which arose in this case and it was this. There was no permanent tenancy until the Court declared that the presumption under Section 88 of the Bombay Land Revenue Code arose. Until that was decided the defendants were only annual tenants not even having fixity of tenure, and consequently the plaintiff's right to enhance the rent which was recognised by Section 83 could not have been denied as against the vatandars.
12. On both these grounds it seems to me that the decision of the trial Court was right. The appeal should be allowed and the , decree of the trial Court restored with costs throughout,
13. In my opinion it is impossible to apply to this case the principles laid clown by the Full Bench in Radhabai v. Anantrav Bhftgvant Deshpande I.L.R.(1885) 9 Bom. 198 for that case has been distinguished by the Privy Council in Mctdhavrao Vaman Saundnlgekar v. Raghunath Venkatesh Deshpande . The facts of that latter case were so similar to the facts now before us that it is binding upon us as an authority for the proposition that a permanent tenancy cannot be acquired by a tenant of watan property as against the holder of the watan, and that authority is therefore sufficient for the decision of the case before us. Whether in other circumstances Radhabai v. Anantrav can still be regarded as an authority is a question which may have to be considered when those circumstances are before us. It seems to me, therefore, clear that the defendants in the present case cannot assert that they have by twelve years' adverse possession acquired a right to hold the property at a fixed rent. I should like further to point out that there is an error in the judgment of the District Judge as to the date on which the suit was filed. The correct date is October 29, 1919, and not October 29, 1921, and therefore the suit was within twelve years from the death of the last holder.