VENKATRAO SHRINIVASRAO Vs. BASAVPRABHU LAKHAMGOUDA SIRDESAI

JUDGEMENT

(1.) THE suits out of which these two appeals arise were brought by the Desai of Vantamuri in respect of two pieces of land both of which were granted as permanent tenancies to the ancestor of the defendants in the two suits respectively (who are father and son) by his father in the year 1873. THE documents creating the tenancies were not registered, but it is not disputed that the intention underlying the documents was to create a permanent tenancy in each case. THE grantor died in 1877, and on his death the grant would ordinarily come to an end, this being watan property. THE grants of 1873 were the result of litigation launched by the grantor in 1871 for the eviction of the ancestor of the two defendants. THE suits succeeded; but the holder had been in possession of the property for a long time and had spent a good deal of money in improving it, and it was evidently for this reason that the grants of 1873 were made. In 1924 the plaintiff issued notices to each of the defendants calling upon them to vacate the land, though they had all along been, paying the same rent for the land as was provided in the grants of 1873; and eleven years later he brought the present suits for the eviction of the defendants. THE Record of Rights from 1904 to the present day shows the defendants to be in possession as permanent tenants. THE original plaintiff to the suits died in the Course of the litigation, and the respondent to these appeals is his son. THE defence, so far as is material to the present appeals, was first that the grants of 1873 are valid beyond the lifetime of the grantor because the grantees were watandars of the same watan, secondly that the conduct of the plaintiff after the death of his father indicates that he ratified the grant of his father or has at any rate permitted the defendants to acquire a right of permanent tenancy by prescription, and lastly that in the suit which has given rise to First Appeal No.312 notice cannot be deemed to have been served on the defendant and the suit is therefore bad. All these points were decided against the defendants by the trial Court, and they have come in appeal.

(2.) I deal first with the question of whether the defendants can be regarded as "watandars of the same watan" as the grantor so as to permit the grants of 1873 to remain effective beyond the lifetime of the grantor. Their ancestors were admittedly in possession of other property belonging to the watan of the plaintiff, and it was their case that their ancestors were in possession of that other property as watandars and must therefore be regarded as "watandars of the same watan." Their learned advocate complains that his case on this point has been prejudiced by the action of the trial Court in not exhibiting a number of documents, some of them original grants, which he produced at an early stage of the case, and in failing to call upon the plaintiff to produce certain other documents which the defendants asked that he should be compelled to produce. But in our view it is not necessary to consider whether the trial Court was right in not bringing these documents on the record, because we are satisfied that on a strict construction of the expression "watandar of the same watan" they would not show that the defendants came within the definition. This expression has been judicially interpreted in Tarabai v. Murtacharya (1939) 41 Bom. L.R. 924, where it has been held on a full consideration of the definitions in the Watan Act of 1874 that the primary definition of a "watandar" is that he is a person having a hereditary interest in a watan, and that means not only an interest in the property but an interest in the office also. It is not the case of the defendants that their ancestor ever had any interest in the office appertaining to the watan. It is contended on their behalf in this appeal that this case has not been properly decided, and that it is in conflict with the decision of this Court in Mallappa v. Tukko (1936) 39 Bom. L.R. 288, where it was held that the grantee of a pot-inam in that particular case was a watandar of the same watan as the grantor, although it was not found that any share in the office of the watan ever formed part of the grant. We have been asked to consider the correctness of the decision in Tarabai's case, and if necessary to refer the matter to a Full Bench. But the earlier decision in Mallappa's case did not at all consider the question of whether the office formed part of the grant and the effect of the office not forming part of the grant on the question of the grantees being watandars of the same watan as the grantors, and we cannot refer to a Full Bench a case in which a point was specifically raised merely because a different view has been taken in a case where the point was not specifically raised. In our view the decision in Tarabai v. Murtacharya is binding on us, and the defendants must be held not to be watandars of the same watan as the grantor of 1873. It follows that the grants of 1873 ceased to be effective on the death of the grantor in 1877.

(3.) THE evidence comes to this. THE plaintiff has accepted an unchanged rent of Rs. 50 from 1877 till now, and that was the rent fixed under the agreements of 1873. This undoubtedly indicates that the defendants were the tenants of the plaintiff. But it is not an indication that the tenancy was a permanent tenancy or was ever regarded as such by the present plaintiff. THEn in 1882 the brother of the defendants' ancestor asked that the grant of 1873 should be recognised by the plaintiff, and the plaintiff, while not in terms, accepting this suggestion, did not actually refuse it. In fact he ignored the request and merely reminded the defendants' ancestor that he had to pay the assessment and local fund on the lands: (see Exhibit 29 in the case). This circumstance obviously cannot help the defendants. THE Record of Rights has shown them as permanent tenants since 1904, and the plaintiff must have known of it; but he has never attempted to have the entries corrected. Also the plaintiff has waited for eleven years after the issue of notices to the defendants before filing these suits in spite of the fact that the defendants have been earning about Rs. 800 every year and paying only Rs. 50 as rent. But none of these circumstances necessarily involves an inference that the plaintiff ever recognised the tenancy as permanent or that the defendants had ever asserted it as such. In our view the evidence is altogether insufficient to establish the defendants' case.