VISHVANATH HAIBATRAO DESHPANDE Vs. RANGANATH DHONDO DESHPANDE

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from a decision of Mr. Justice Wassoodew.

(2.) THE appellant, who was defendant No.1 in the Courts below, is the inamdar of the village of Nevare in the Sholapur district. On November 4, 1918,. his father, who was then inamdar, executed a document, exhibit 39, by which he purported to grant to the plaintiffs a perpetual tenancy of certain land in the village on condition that they were to pay the assessment and local fund. It is not disputed that the terms of this document are such that they would! create a permanent tenancy, but unfortunately it was not registered and therefore under Section 49 of the Indian Registration Act, 1908, it cannot affect the property or be received as evidence of any transaction affecting the property. THE plaintiffs, however, entered upon the land by reason of this document and held possession under it until 1936 when the appellant forcibly dispossessed them. THEy then sued to recover possession and their suit was decreed both by the original Court and the District Judge in appeal.

(3.) IN any case Datto Shivram v. Babasaheb Malhar is distinguishable because in our case there is a great deal more evidence of the character of the tenant's possession and he has not to defend merely on the fact that he paid a uniform amount of rent. The trial Judge found on the evidence, more particularly on the defendant's own letters and admissions, that the possession of the plaintiffs was openly under the right created by exhibit 39 and to the knowledge of the defendant. The District Judge similarly found that the plaintiffs have openly and adversely held the land to the knowledge of defendant No.1 for more than twelve years and their ownership of the perpetual tenure has become complete. Referring to this aspect of the case Mr. Justice Wassoodew says (p. 539): Upon the character of that possession I accept the view of the Courts below that the entry was in assertion of the 'mirasi' rights. The correspondence between the parties and the large expense incurred by the tenant is suggestive of the intention with which he occupied the lands. It is material to note that he subsequently rented those lands to various tenants and at least to one of the rent-notes the inamdar is an attesting witness. Since 1920 till the date of dispossession in 1936 the plaintiffs have been consistently regarding themselves as mirasdars and treating the lands as theirs. It has been pointed out that in the rent-notes the plaintiffs described themselves as 'Malaks' or owners of this property. It is urged that the effect of those assertions is displaced by the payment! of rent to the landlord which is tantamount to the tenants' accepting the position of a tenant-at-will or tenant from year to year. But the annual payment of Rs. 3 was for assessment and not Tent and annas three for local fund. That was so treated by the plaintiffs, and that is the finding of the Courts below.