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Juvansingji Motisingji Thakor Vs. Dola Chhala - Court Judgment

LegalCrystal Citation
Decided On
Case NumberSecond Appeal No. 514 of 1923
Reported inAIR1925Bom390; (1925)27BOMLR890
AppellantJuvansingji Motisingji Thakor
RespondentDola Chhala
DispositionAppeal dismissed
bombay land revenue code (bombay act v of 1879), section 83 - landlord and tenant-permanent tenancy-presumption-partita land-enhancement of rent.;the plaintiff' was in possession of certain wants land, for which he paid a fixed quit-rent or salami of rs. 5 per year, lie relied on title-deeds the earliest of which was dated 1835 a d,, and described the land as pasaita. his father purchased the land in 1870. in 1885, the defendant landlord tried unsuccessfully in the mamlatdar's court to raise the rent. he gave in 1892 a notice to quit which was disregarded by the plaintiff, however, in the years 1895, 1896 and 1898, the plaintiff passed rent-notes for the land in suit as well as for an adjoining plot of land, agreeing to pay rs. 5 as rent and to give up possession at the end of the.....the plaintiff' was in possession of certain wants land, for which he paid a fixed quit-rent or salami of rs. 5 per year, lie relied on title-deeds the earliest of which was dated 1835 a d,, and described the land as pasaita. his father purchased the land in 1870. in 1885, the defendant landlord tried unsuccessfully in the mamlatdar's court to raise the rent. he gave in 1892 a notice to quit which was disregarded by the plaintiff, however, in the years 1895, 1896 and 1898, the plaintiff passed rent-notes for the land in suit as well as for an adjoining plot of land, agreeing to pay rs. 5 as rent and to give up possession at the end of the cultivating season. these rent notes were held to have been passed under a misapprehension that they related only to the adjoining land. the plaintiff.....
The plaintiff' was in possession of certain wants land, for which he paid a fixed quit-rent or Salami of Rs. 5 per year, lie relied on title-deeds the earliest of which was dated 1835 A D,, and described the land as pasaita. His father purchased the land in 1870. In 1885, the defendant landlord tried unsuccessfully in the Mamlatdar's Court to raise the rent. He gave in 1892 a notice to quit which was disregarded by the plaintiff, However, in the years 1895, 1896 and 1898, the plaintiff passed rent-notes for the land in suit as well as for an adjoining plot of land, agreeing to pay Rs. 5 as rent and to give up possession at the end of the cultivating season. These rent notes were held to have been passed under a misapprehension that they related only to the adjoining land. The plaintiff having sued for declaration of his right to hold the land permanently at a fixed Salami of Rs. 6 a year :-


(1) that the plaintiff was a permanent tenant at a fixed quit-rent or Salami of Rs. 5 a year;

(2) that the defendant was not at liberty to enhance the rent in absence of proof that he was entitled to do so by agreement, usage or otherwise.

The onus of proving such a light to enhance the rent lies on the land lord, unless there are special circumstances to the contrary.

The rulings of the Bombay High Court recognising the usage under which a landlord can enhance the rent of a mirasi tenant have no application to wants land in Gujarat.

Marten, J.

1. The present parties have been engaged in litigation over the suit land ever since the year 1909, though the particular suit before us did not begin till 1916.

2. The question that arises is whether the plaintiff is a permanent tenant at a fixed quit rent or salami of Rs. 5 per annum as he contends, or whether he is only a tenant at will or annual tenant as the defendant Thakor Sahib contends. Or alternatively, if he is a permanent tenant, then whether the Thakor Sahib has any right to enhance the rent.

3. The land in question is in the village of Chaklasi in the Nadiad Taluka, and it forms part of a wants land belonging to the defendant, who is the Thakor of Sonipur. The present Survey No. is 1280; the old No. was 1238; and its area is six acres and six gunthas. The meaning of wanta is given in the first trial judgment in September 1917, and in effect it represents the portion (which is usually th) which was left in the possession of the Rajput Thakors by the Mahomedan invaders of Gujarat. The plaintiff's theory on which this suit was brought was that the land was originally given to the plaintiff's Brahmin predecessors-in-title in pasaita. That expression is also explained in the same trial judgment as meaning land given in charity to Brahmins, temples etc. It may be either rent free or subject to the payment of salami or quit rent.

4. The plaintiff originally claimed that the field in question was of his absolute ownership and possession subject to this quit rent of Rs. 5. But it was held in both the Courts below that he was only a permanent tenant, and this finding is not challenged by the plaintiff before us. What we have to consider in this appeal are the contentions by the Thakor Sahib as an appellant which I have already alluded to.

5. Now, apart from the question of the rent note, which I will deal with later, the findings of the lower Courts that the plaintiff was a permanent tenant would appear to be justified in law on the facts as found by the lower appellate Court. The plaintiff put in title deeds going back to 1835, in the earliest of which the land is described as pasaita land and the last of which was a conveyance on sale to the plaintiff's father in May 1876, Exhibit 27, The identity of this land is challenged by the Thakor Sahib, but after looking at the map and the comparative statement set out at p. 23 of our paper book, but which does not appear to have been a formal Exhibit, we agree with the lower Court that the identity was established. As regards the northern and southern boundaries, they are substantially the same in the various deeds, viz., the northern boundary being certain fields of the Thakor, and the southern boundary being a road. The east and west boundaries cause more difficulties, partly because of the reference to fields by the names of the then owners, and partly because a narrow way is sometimes mentioned and sometimes not, But on the whole we consider that the identity Is made out.

6. That being so, we have got the necessary antiquity for the origin of the tenancy to allow a presumption to be made under Section 83 of the Bombay Land Revenue Code, for no one can say how long prior to 1835 it was originally created, In particular the witnesses of the Thakor Sahib are quite unable to point to any definite date for its commencement. Consequently, apart from the rent note which I have alluded to, the ordinary presumption under Section 83 of the Bombay Land Revenue Code would seem to apply.

7. But great stress was laid by counsel for the Thakor Sahib on certain rent notes which the plaintiff's father is alleged to have executed. It will be remembered that the plaintiff's father, Chhala Bhaiji, acquired this property on May 31, 1876, by the sale deed, Exhibit 27, The rent notes relied oil by the Thakor Sahib are in order of date 1886, Exhibit 94; 1895, Exhibit 97; 1897, Exhibit 108; and 1898, Exhibit 96. There were two other intervening material dates, viz., that in 1885 the Thakor Sahib brought a suit in the Mamlatdar's Court, Exhibit 15, for a rent largely exceeding the rent of Rs. 5 and that that suit was unsuccessful. Similarly in 1892 he gave a notice, Exhibit 28, in effect calling on the plaintiff's father to pay an increased rent, or in default to quit.

8. As regards the first of these rent notes passed in 1886, that does not relate to the suit land at all. It relates to the next Survey Number 1281 which went by the name of the Ganvatya land. The other three Exhibits passed in 1895, 1897 and 1898 relate to both plots Nos. 1280 and 1281. The rent of plot 1280 is not thereby raised but is the same old rent of Rs. 5. But the clause relied on by the landlord is a clause at the end, which provides that the tenant is to give up possession at the end of the year of the tenancy. It was accordingly argued before us that having passed a rent note of that description, this was a complete answer to the plaintiff's claim of being considered a permanent tenant : and that we must accordingly reject the claim which he had advanced in that respect. The findings of fact, however, in the lower Courts are that these rent notes passed in 1895, 1897 and 1898 were obtained by misrepresentation, inasmuch as the alleged tenant thought they only related to the field No. 1281 and did not understand that they related to the field No. 1280. That he himself did not execute the document because he was illiterate; that he was not actually present at the time, and that the person who signed on his behalf did so at the request of the Talati of the Thakor Sahib.

9. It was argued before us that this amounted to an allegation of fraud or misrepresentation against the officers of the Thakor Sahib, and that accordingly it ought to have been pleaded and an express issue raised upon it, and that, as this was not done, the evidence on the point should not have been admitted in the lower Court, and much less should any decision of the lower Courts have been founded on it, and that accordingly in this Court the plaintiff is not entitled to rely upon any such evidence

10. As regards the pleadings, it must be borne in mind that it was not the plaintiff who was setting up the rent notes but it was the defendant The rent notes are not referred to in the plaintiff's pleadings. Further, under the ordinary practice in the mofussil it is not customary for a plaintiff to put in a reply to the defendant's written statement. If the case had been one in the English High Court, a reply would be a matter of course. But even on the Original Side in Bombay it is not essential in many cases to put in a reply, and in others the express permission of the Court may have to be obtained for that purpose. Accordingly-I am speaking with experience of the Original Side-it frequently happens that the pleadings are left in what to an English trained lawyer is a defective state.

11. As regards the issues that were raised, they were in a broad general form and would enable this particular point to be gone into, inasmuch as the rent note would be relevant evidence on the issue whether the plaintiff was a permanent tenant or not. If the defendant was taken by surprise or had any objection to urge, he should have at once objected to the cross-examination of his witnesses to show that the documents were obtained by misrepresentation, and he could have at once taken the point that on the pleadings the plaintiff was not entitled to go into the point, or alternatively, if no amendment or a further reply was allowed, then tie trial should stand over to enable the defendant to meet the evidence on this new point,

12. But in fact nothing of the sort was done. Although this suit dragged on for many years, no objection appears to have been raised at the trial. The learned Judge gave his judgment on the point; there was no objection raised on this score in the memo of appeal nor at its hearing before the lower appellate Court, As far as we can see on the record before us the first time that the point is taken is in the memo of second appeal to this Court.

13. Under these circumstances we think that having regard to the course which the trial and the first appeal took, no injustice or surprise has been suffered by the defendant, and it would be almost pedantic on our part to send this case back for a remand after eight years with a direction that certain formal pleadings should be put in, and that the parties should be at liberty, if they like, to bring certain further evidence of which at present we have no idea of what it would consist. Counsel for the appellant in the course of extremely lengthy arguments to us did not venture to suggest that his client had any further evidence in his possession which would tend to negative the existing evidence as to misrepresentation which was before the Court at the remanded trial in September 1921.

14. Next it was said that the evidence itself did not support the findings which the lower Courts put upon it, as in particular certain witnesses who are alleged to have stated certain matters said in fact nothing of the sort. It is not our province in second appeal to weigh the appreciation of evidence. But having regard to the allegation that certain evidence relied on by the lower Courts in fact contained no statements whatever of the sort alleged, we did read the evidence of several witnesses. One in particular, Exhibit 99, if it was accepted, was quite sufficient to establish the plaintiff's contentions in this respect. I do not propose to discuss the evidence of some of the other witnesses, who did not remember whether they were present at a particular time very many years ago.

15. Nor is this evidence at all inconsistent with the probabilities of the case. Seeing that Chhala, the plaintiff's father, had paid solid cash for this field, and that he had successfully resisted the efforts of the Thakor to increase the rent in the suit in the Mamlatdar's Court in 1885, and that he paid no attention to a notice to quit of 1892, it is somewhat surprising to find that he is alleged in 1895 and in two or three subsequent years to have acknowledged that he was merely an annual tenant and was obliged to quit at the end of the current year. The explanation that he thought the document related to the other field of which he was an annual tenant is not an unlikely one. Or again it is possible that he may have thought that this document as regards No. 1280 only stated that he was a permanent tenant of that field at the rate of Rs. 5 per annum which in fact is the rent mentioned in these rent notes, but that he did not appreciate the importance of that clause at the end of the document about giving up possession, which was a proper clause as regards the other field No. 1281, but which would be fatal to his claim as regards the field No. 1280.

16. Further, it is to be observed that in the very first rent note of 1886, Exhibit 94, this was only in respect of field No. 1281 and not in respect of the suit field. We have on this an explanation from the appellant's counsel to the effect that in the books of the Thakor Sahib this land has been kept in the name or the Khata of somebody else, and that accordingly the rent note in respect of No. 1280 was given to or made out in the name of a different person. But here again it is important to observe that in the Mamlatdar's suit in 18S5 the Thakor had sued as defendants not merely this other man in whose name this Khata is alleged to have stood, but also the plaintiff's father himself. I think it only fair to assume that thereby he was put on inquiry as to what interest the plaintiff's father had in the suit land No. 1280, and accordingly that if he had really thought that Chala, the plaintiff's father, was the sole tenant of No. 128') as well as No. 1281, we should have had it so stated in Exhibit 94.

17. Nor, again, having regard to the findings of the Court on the question of illiteracy, would it at all be surprising to find that no permanent tenant would consciously enter into rent notes of the description in question if he had been fully aware of their legal significance Under these circumstances we see no reason to disturb the findings of fact in the lower appellate Court that these rent notes were obtained by misrepresentation, and that they are not binding on the plaintiff's father nor on the plaintiff. That being so, we are left with the presumption under Section 83 of the Bombay Land Revenue Code which I have already referred to, unfettered by any difficulty caused by these rent notes. It follows, therefore, that in our judgment the finding of the lower appellate Court that the plaintiff was a permanent tenant at a quit rent or salami of Rs. 5 was correct, and will be affirmed.

18. Next comes the point as to whether even if the plaintiff is a permanent tenant, the defendant is entitled to enhance the rent, The section governing the matter is the proviso to Section 83 of the Bombay Land Revenue Code which runs:-'Nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage, or otherwise), to enhance the rent payable, or services renderable by the tenant, or to evict the tenant for non-payment of the rent or non-rendition of the services, either respectively originally fixed or duly enhanced an aforesaid.

19. Now it is common ground that there was no agreement entitling the landlord to enhance the rent. But it is said there was a right in the landlord so to do by usage or otherwise within the meaning of this proviso. No evidence whatever in support of such right by usage or otherwise was put forward at either of the trials; but it was said that it was a well-known usage which was so clearly recognised by the Courts of this Presidency that we ought to take judicial notice of it and to hold it to be part of the settled law of the land. Alternatively it was said that once you get the relationship of landlord and tenant established, then prima facie the landlord has a right to raise the rent, unless some restriction on his power is established by the tenant, In other words, the onus lies on the tenant to show that the landlord has not this right, and that the onus does not lie on the landlord to say he has the right.

20. Now taking the words of the section, which are after all the governing factor on the subject, I consider them as meaning that if the landlord can prove that he has the right to enhance the rent by virtue of an agreement, usage or otherwise, then he is to be entitled to do so. This construction is I think borne out by the judgment of Sir Lawrence Jenkins in Rajya v. Balkrishna Gangadhar I. L. R.(1905) 29 Bom. 415 7 Bom. L. R. 439 . That was not a case of wanta land or alienated land, as we have here, but of mirasi land in the Belgaum District. But there the Court had to consider this section, and at p 422 Sir Lawrence said :-' What has hitherto been payable we know; all that has to be determined is the right to enhance. In the first place, it must be determined whether what was paid was rent, and then whether the Inamdar has the right to enhance as against one who holds on the same terms as the defendant does. Agreement is out of the case, but it is said that the enhancement sought is sanctioned by usage; this, therefore, should be proved.

21. Further, amongst the issues sent down to the lower Court, issue 5 ran : Has the plaintiff the right by virtue of usage or otherwise to enhance as against the defendant I have already said that the Thakor Sahib has adduced no evidence whatever in support of the alleged usage. It is said that we should now remand this case back to the lower Court in order to enable him to do so. During some fifteen years litigation and eight years of the present litigation, there was ample opportunity for the defendant to ponder over the various judgments that were at intervals given by one or other of the various Courts before whom this litigation came, There was ample time for him to make up his mind what evidence and what sort of case he was going to prove before the Court. And really at this late stage to ask that he should be given this further opportunity is to my mind a request almost verging on absurdity. In any event I am quite satisfied that it would be most unjust to give that permission and that accordingly any such request should be refused.

22. Then cornea the question of the authorities. We have been referred, in addition to Rajya v. Balkrishna, Gangadhar I. L. R. (1905) 29 Bom. 416 :7 Bom L. R. 439 which I have just cited, to Prataprav Gujar v. Rayaji Namaji I. L. R.(1878) 3 Bom. 141 and the cases referred to in the notes at pp. 145 and 345; Vishvanath Bhikaji v. Dhondappa I. L. R. (1892) 17 Bom. 470 ; Laxuman v. Krishnaji (1905) 9 Bom. L. R. 861 and Vyasacharya v. Vishnu (1919) 22 Bom. L. R. 717 . These cases have one common characteristic. They all relate to the Deccan; and most of them were in the Satara District or else in the Belgaum District, As regards the particular districts in which those oases arose, no doubt it has been laid down that the usage is clear and well recognised and must be given effect to, But there again they were all cases dealing with the rights of the Mirasdars, and they were all or nearly all cases of unalienated land. In the present case we have not to do with the Deccan. We are dealing with Gujarat, and Gujarat does not know about Mirasi tenure. We are dealing here with alienated land, and if there is any substance-and there appears to me to be substance-in the contention of the plaintiff as to the origin of this tenure we are again brought to another region of facts under which it may very well be that the tenancy was to beat a fixed rent for all time. If land is to be given in charity at a small quit rent, one could understand it as being a charitable gift, though not so bountiful a one as if the land had been given out and out. But if in fact an alleged charitable donor is to be entitled to enhance the rent at his pleasure and in effect to demand a rack rent, then where is the charity If the landlord gets the full value of his land, where is the religious merit and how could one say that anything has really been given ?

23. Therefore there appears to me to be a broad distinction of fact between the lands we have to deal with in the present case and those the subject of the above reported cases. In the absence of any evidence whatever on the point, I utterly decline to accept those authorities as laying down a universal rule applicable to the whole of this Presidency. Nothing would have been easier than for the Thakor Sahib to have led even a sentence or two of evidence to that effect if it was the fact. I think too there is considerable force in the argument put forward by counsel for the plaintiff that if this is really the true state of the law in this Presidency, then why should the proviso to Section 83 be framed in this way If the trainers knew of this well established usage giving the right to the landlord in all cases to enhance the rents, then why should this proviso have been put in this limited form In the view I take, the onus is thrown on the landlord to show that he has this right by agreement, usage or otherwise.

24. Curiously enough the same point came before my brother Fawcett and myself, on August 28, last in S. A, 553 of 1922 from the decision of the same learned District Judge of Ahmedabad Mr. D'Souza. There again the right to enhance was claimed in the appellate Court, but substantially no evidence had been led in the trial Court. On appeal to us in the state of the evidence in the case then before us, we declined to hold that the landlord in that case had any power to enhance the rent in the way in which he claimed, Mr. Thakor, who appears for the Thakor Sahib in the present case, was also counsel for the Talukdar in the other case, and he has stated to us that in the previous appeal he did not urge with sufficient force nor with sufficient; reference to authorities his present contention as to the rights of the landlord to enhance the rent. I accept his recollection that he did not then refer us to the authorities which he has cited to us in the present case. But it may perhaps ease his mind if I were to say that even if he had cited these cases, it would not have made the slightest difference to the result of our judgment, although naturally we (appreciate the industry of counsel in bringing to our attention in the present case all relevant authorities that he can find. Certainly so far as my recollection of the previous appeal goes as is my recollection of the arguments in the present case, Mr. Thakor has urged and urged at length and with strength all possible arguments that could be taken on behalf of his client. Therefore it cannot be said that there is any fault on the part of counsel that the Court arrived at that particular decision.

25. In the present case I am happy to think that our decision that the plaintiff is a permanent tenant at a fixed rent is 1 believe entirely in accordance with the facts and justice of the case. On the facts as we have them, this man and his predecessors-in-title have been in possession of this land at a quit rent ever since 1835, and they have up to now successfully disputed the right of the landlord to alter that rent as has been attempted in comparatively recent years. I have little doubt that the present Thakor Sahib or his predecessors did not take proceedings in 1885, or again in 1892, because they knew that right was on the side of the plaintiff. It is without any hesitation accordingly that I would confirm the decision in favour of the plaintiff which has been arrived at by the lower Court and dismiss this appeal with costs.

26. My brother Fawcett has reminded me that there is one other point which I should have referred to. It was contended in the lower Court that even if the plaintiff was an annual tenant or must be deemed to be so by having passed old rent notes, yet he had successfully asserted his right to be a permanent tenant, and that accordingly he must be taken to have been in adverse possession qua permanent tenancy notwithstanding his signature on these rent notes. Our finding that the rent notes are not binding on the plaintiff renders it unnecessary for us to express an opinion on that point. Speaking for myself we have not heard the full arguments on the point or indeed any argument from the plaintiff. Under these circumstances I personally shall express no opinion whatever on that point, nor whether it was rightly decided in favour of the plaintiff in the Court below.

Fawcett, J.

27. My learned brother has dealt so fully with the points arising in this appeal that I need only add a few remarks.

28. The learned District Judge decided the appeal before him in favour of the plaintiff-respondent on two grounds. The first of these was that by his open assertion to the knowledge of the defendant Thakor of his right to hold as a permanent tenant at a fixed rental of Rs. 5 per annum, he had acquired by adverse possession the status of a permanent tenant holding at ' fixed rate. The learned counsel for the appellant has drawn our attention to certain rulings of the Privy Council which support the view that the plaintiff could not legitimately be held to have acquired this status by adverse possession, inasmuch as the defendant could not have taken steps merely on account of that assertion to recover possession of the land in suit. The rulings in question are those of Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L. R. 50 I. A. 202 and Madhavrao Woman Saundalgekar v. Raghunath Venkatesh Deshpande (1923) L. R. 50 I. A. 255. It may be that in view of those ratings the view taken by this Court in cases like Budesab v. Hanmanta I. L. R.(1896) 21 Bom. 509 and Thakore Fatesingji v. Bamanji A. Dalal (1903) I. L. R. 27 Bom. 515 5 Bom. L. R. 274 may have to be reconsidered, although at any rate in the former of those cases the fact that an attempt to 1 evict a tenant had been made under the Mamlatdar's Court Act, is a special consideration which may alter the application of the general principle laid down in Nainapillai Marakayur v. Ramanathan Chettiar I. L R. (1923) Mad. 337 P. C., by the Privy Council.

29. But in the present case it is not necessary-and in my opinion undesirable'-to consider this question, because the learned District Judge has also decided in favour of the plaintiff on other grounds, which in my opinion are amply sufficient to support his decree, and any remarks which we might make on this particular question would be merely obiter dicta.

30. Both the lower Courts have held that the plaintiff has succeeded in showing circumstances that justify the presumption being raised in his favour which is allowed by S. 83 of the Bombay Land Revenue Code. So far as such finding can be challenged in second appeal, I am clearly of opinion that there is no sufficient ground for our interference.

31. As regards the point of identity of the land, the defendant, if he wanted to rely upon the description of the boundaries in the different title deeds as showing that the land mentioned in one or other of them could not possibly be identical, should have directly raised that point in the cross-examination of the plaintiff and given him an opportunity of explaining any differences that there are in respect of the description of the boundaries. So far as I can judge from the materials before us, there is nothing which makes it impossible that the boundaries should be the same, and a good deal which favours their really being so. I do not think that we have any good ground for not accepting the finding of the learned District Judge as to the identity of the plaint field mentioned in the several documents produced by the plaintiff.

32. Then as regards the question arising about the circumstances under which the plaintiff's father passed certain rent notes to the defendant, I have little to add to what my learned brother has said. The Civil Procedure Code by Order VIII, Rule 9, requires the leave of the Court before any party can make a further-pleading after the written statement has been filed, and I can Corroborate the statement of my learned brother that it is non the practice in the mofussil for the plaintiff to put in a counter statement to the defendant's written statement. The point about the alleged misrepresentation really arose out of the cross-examination of certain witnesses adduced by the defendant, and the circumstances are very like those that arose in Riding v. Hawkins (1889) 14 P. D. 50 where upon cross-examination of the defendant an occasion arose for a plea being put in about misrepresentation with the leave of the Court.

33. This is not a case where the plaintiff from the very start set up that there was a misrepresentation on the part of the defendant in regard to certain documents, and so as to require an affirmative plea of misrepresentation by him in the first instance which is the ordinary case where the rule applies that fraud or misrepresentation must be properly pleaded and particulars given. In the present case all that I think can legitimately be said is that the plaintiff's pleader should have raised an issue on this point at the time the issues were framed, because undoubtedly the defendant had pleaded these rent notes. Therefore it can fairly be said that so far as the defendant was disputing the legal effect of the rent notes, his pleader should have asked the Court to frame an issue on the point.

34. But the mere fact that no such issue was framed is not a sufficient ground for our interfering with the decree of the lower Court in this second appeal. In support of that view I may refer to the Privy Council case of Mussumat Mitma v. Syud Fuzl Rub (1870) 13 M. I. A. 678 where their lordships say at p. 682 as follows:-

In this case the omission to raise the issues was brought before the notice of the appellate Court; the appellate Court expressed its regret, and their Lordships are glad to observe that it did express its regret that the Principal Sudder Ameen had omitted to settle the issues. The Court, however, nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a re-trial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section (which corresponds to Order XLI, Rule 25, of the present Civil Procedure Code) of the Civil Procedure Code. At all events, it appears to their Lordships that there is nothing in the Code which made it imperative up on the appellate Court, or now makes it imperative upon their Lordships, to yield to that objection, and, therefore, fully concurring in the observations made by the appellate Court that it was the duty of the Judge to settle the issues, and that it was much to be regretted that he omitted to settle those issues, they still think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mistrial of the cause which vitiates all the proceedings and renders a new trial necessary.

35. So, here, I think there is no question of surprise arising, and the Section 99 of the Civil Procedure Code applies. There has been at the most an irregularity which does not justify our interference in second appeal. And after all quite apart from any allegation of misrepresentation, the question is substantially one of what is the weight to be given to the admissions which are relied upon in these particular rent notes That is the point of view from which both the lower Courts have really addressed themselves to the question, and it is a point of view which from very early times has been one which has been authorised by the decisions of this Court.

36. One of the earliest cases dealing with the question of admissions in rent notes passed by illiterate cultivators is Gangaji v. Sakharam (1889) P. J. l56 which is referred to by Sir Lawrence Jenkins in Raghunath v. Lakehuman (1890) 2 Bom. L. R. 93. There is also the recent case of Rama v. Abdul Rahim , which is mentioned in the judgment of the lower Courts, where it was held on general grounds that it would be unsafe to rely upon a particular admission of being a tenant-at-will in a rent note contrary to evidence showing that the tenant had been asserting a right to permanent tenure, and continued to hold the land.

37. In the present case the fact that these rent notes include a piece of land, to which the stipulation as to giving up the land at the end of the year could properly apply, is a clear ground for not giving the rent notes the weight they might otherwise have. Quite apart from any deliberate misrepresentation by the Thakor or his Talati, the Court would be clearly justified in saying that it cannot attach any real weight to the admission, and of course an admission is not in itself conclusive, I think, therefore, that the conclusion of the lower Courts that a presumption of permanent tenancy arises in favour of the plaintiff is correct and is binding upon us in second appeal.

38. As regards the question of the defendant's right to enhance the rent, no doubt inasmuch as the plaintiff asked for a declaration that the defendant had no right to enhance the rent, the onus of proof would in the first instance rest upon him under Sections 101 and 102 of the Indian Evidence Act, that is to say, if neither party adduce any evidence about this right to enhance, the plaintiff would fail not having sustained the onus upon him. But after the plaintiff had adduced evidence that he and his predecessor-in-title had been in possession of this particular land under circumstances which justify a presumption in plaintiff's favour under Section 83 of the Bombay Land Revenue Code and that they had paid a uniform rental for a long number of years, the onus was clearly shifted on to the defendant to show that by agreement, usage or otherwise he still had a right to enhance the rent. I agree with my learned brother that the last para of Section 83 of the Bombay Land Revenue Code contemplates the landlord having to satisfy that onus. But quite apart from that, I think that under ordinary rules of evidence the onus in this case would lie upon the landlord, and in view of his having adduced no evidence at all on this particular point, I cannot see that there is any ground for our interfering with the view taken by the District Judge, viz., that the right to enhance is not one which is inherent in the defendant, and that he has failed to satisfy the onus that lies upon him in that respect.

39. I agree with all that my learned brother has said as to the rulings about the right to enhance the rent in the case of Mirasdar being entirely inapplicable to the present case I think that possibly, if the defendant had set up the right to enhance the rent on the ground that this land had been originally granted in charity and improperly alienated by the grantees so as to divert the profits from the charitable institution, he might have been able to show some foundation for his claim to enhance the rent. The case is in some respects analogous to that of Government granting land as a devasthan inam and resuming it by the levy of full assessment from the existing owner, where the profits of the inam land have been diverted from the institution itself, or the institution itself has ceased to exist or to be used as such. This is done either under the conditions of the sanad on which the land is given, or under the general declaration that land held on behalf of religious or charitable institutions wholly or partially exempt from the payment of land-revenue shall not be transferable from such institutions either by assignment, sale, gift, devise or otherwise howsoever, which is contained in clause 3 of Section 8 of Bombay Act II of 1888. But there is no corresponding clause in Act VII of 1863 which applies to Gujarat, and it has been held that full assessment cannot be legally levied in the case of alienation of endowed property: see Shankarlal Tapidas v. The Secretary of Stake for India I.L.R.(1918) 43 Bom. 583 21 Bom. L.R. 668 Therefore, so far as the analogy of Government lands is concerned, the case for the defendant put on this footing would naturally be somewhat weak. In any case the defendant has not set up any such contentions. He has adopted the defence that this land was never given in inam, that it was part of his ordinary wanta land, that the plaintiff was an ordinary tenant-at-will, and that on ordinary general principles the Court should decide in his favour, In these circumstances there is obviously no ground for any inquiry into the possibility I have mentioned. The point should have been properly raised in the suit, if it Was going to be raised at all, and I think that, as the defendant has chosen not to set up any such claim or to adduce any evidence, he must suffer the consequences, and he has only himself to blame if thereby he loses what he might otherwise have been allowed.

40. I concur, therefore, that this appeal should be dismissed with costs.

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