1. The question in this case is whether the plaintiff-appellant Ganpatrao is entitled to obtain possession of Survey No. 140, which is admittedly watan land, from the defendants-respondents. That survey number was mortgaged by his grandfather Vithalrav to the predecessor-in-title of the respondents. In the redemption suit of 1883, the civil Court ordered Vithalrav to redeem within a certain period. Vithalrav failed to do so, and he forfeited his right to redeem. He then applied to the Deputy Collector for restoration of the lands and succeeded. In appeal by the mortgagee-decree holder the order was set aside by the Collector and the mortgagee re-instnted. On the death of Vithalrav, the appellant's father Bhavanrao passed a permanent lease in favour of the respondents, for three survey numbers. The respondents father obtained possession of one survey number only-No. 140. The appellant accordingly sues for possession of No. 140 and a declaration in respect of the other two survey numbers 220 and 225.
2. The two main issues when the parties went to trial were : firstly, whether the lease was operative after the life of Bhavanrao, and, secondly, whether the suit was barred by limitation. The appellants succeeded on both the issues in the trial Court and the respondents in first appeal.
3. The first issue depends on whether the respondents are watandars of the same watan within the meaning of Section 5 of the Hereditary Offices Act III of 1874. It is argued for the appellant that they are not. It is contended for the respondents that they are holding watan property, legally acquired as laid down in the definition of watandar in Section 4 of the Act by reason of the order of the civil Court and of the Collector, which, it is said, binds the heirs of the mortgagor.
4. With that contention we cannot agree. The decree of the civil Court could not, by reason of Section 5 of the Act, operate beyond the lifetime of Vithalrav. The same may be said of the order of the Collector, and of the fact that on the death of Vithalrav, his son Bhavanrav chose not to challenge the respondents' possession under Section 5 but created a permanent grant. The lease to the respondents cannot affect the rights of the present appellant to set aside his father's lease after his father's death. Legal possession within the lifetime of the mortgagor or lessor watandar is clearly not equivalent to the legal acquisition of title to the land, which is contemplated in the definition of ' watandar' in Section 4, We, therefore, agree with the conclusion of the trial Court, though not with its reasoning, that the respondents are not persons holding watan property legally acquired. They are not, therefore, watandars of the watan within the meaning of Section 5. No question of takshim or share arises and it is, therefore, unnecessary to consider the law in that respect. It follows that the appellant is entitled to the possession of Survey No. 140. The trial Court has held that he has failed to prove any cause of action as regards Survey Nos. 220 and 225 and refused the injunction.
5. On the question of adverse possession and limitation, the respondents seek to challenge the correctness of the date of the death of the appellant's father. They do not, however, set up any alternative date. The lower Courts held on the meagre evidence before them that the appellant's date was correct. The respondents' possession under the lease by Bhavanrao in the life-time of Bhavanrao cannot be said to be adverse to the appellant nor their possession in the life-time of appellant's grandfather Vithalrav adverse to the mortgagor prior to the date of redemption or to the order of the Collector.
6. For these reasons I am of opinion that the appeal should succeed, the order of the lower appellate Court be set aside and the order of the trial Court restored, with costs throughout against the respondents.
1. I agree. As to the point of limitation, the lower appellate Court is clearly wrong in holding that there had been adverse possession, which would bar the plaintiff's suit. As authority, reference may be made to the recent Privy Council case of MadhavraoWaman v. Raghunath Venkatesh I.L.R.(1923) 47 Bom. 798 : 25 Bom. L.R. 1005 On the main question the first thing to notice is that Clause (a) of Sub-section (1) of Section 5 clearly applies to the present case. Under subsection (2) of that section this Clause (a) applies to a watan in respect of which a service commutation settlement has been effected, unless the right of alienating the watan without the sanction of Government has been conferred upon the watandars by the terms of such settlement. The Gordon Settlement did not confer any such right of alienation, as has been held in Appaji v. Keshav I.L.R. (1890) 15 Bom 13 and other oases including Balku v. Vyankatesh : (1921)23BOMLR799 . Therefore, we think, there is a direct prohibition against the alienation, which is relied upon by the defendants as constituting them watandars of the same watan. The prohibition is as to any transfer of interest beyond the natural life of the alienor. The civil Court's decree is, in the circumstances, one which is liable to be set aside, so far as it might otherwise effect an alienation beyond Vithalrav's life-time. It is hardly necessary to cite authorities on this point, but I may refer to Shivram Narsingrao v. Mahadev Namyan I.L.R(1912) . 37 Bom. 81 where watan land was sold in execution of a decree and bought by the defendant, and is was held that he took merely the right, title and interest, of his judgment-debtor, and on the death of the latter his right under the Court sale ceased. So here, any rights of the defendants, which they had under the decree, must be deemed to have ceased upon Vithalrav's death. As to the Collector's order, that order merely decided that the alienation was not null and void ah initio, as had been held by the Deputy Collector. It cannot properly be extended to a declaration that the alienation would be valid after Vithalrav's death; and even if the order had meant this it would be directly against the enactment contained in Section 5(1)(a), Consequently, I think, it is clear that the defendants are not persons, who can be held to have 'legally acquired' this watan property, within the meaning of definition of watandar, It is not necessary to say what class of cases might be covered by this part of the definition of 'watandars'; but I may instance of the case of a person to whom an alienation is made with the sanction of Government.
2. Accordingly, I think that, although the reasoning of the Subordinate Judge who tried the case on the remanded issue cannot be supported, his conclusion is right, and I concur in the order proposed by my learned brother.