NAGAPPA BALAPPA BASTWAD Vs. RAMCHANDRA GUNDO

JUDGEMENT

(1.) THE plaintiffs in this case sued (Civil Suit No.87 of 1935) to recover possession of the suit lands situated in Mouje Jabapur, their respective Revision Survey Nos. being 58, 5911 5912 and 59-A. THE plaintiffs allege that these lands are all pargana watan lands and were owned by Gundo, the adoptive father of plaintiff No.1. Gundo had mortgaged the lands in suit to Ningappa the ancestor of the contesting defendants, appellants before us, in the year 1873. Gundo died in 1880; his widow Tungawa borrowed some more money from the said Ningappa and passed a document in his favour in 1886. THE plaintiffs allege that by this document Tungawa, the adoptive mother of plaintiff No.1, sought to create rights of permanent tenancy in favour of Ningappa and their case was that this document was the result of undue influence practised on her. Plaintiff No.1 was adopted by Tungawa in 1922 and the present suit has been filed within twelve years from the date of his adoption.

(2.) SHORTLY stated the case for the plaintiffs is that the document executed by Tungawa is not binding on them and that the defendants who claim to be permanent tenants of the lands are trespassers or, at best, annual tenants. On that footing the plaintiffs claim possession of the suit lands and past mesne profits for three years. Plaintiff No.2 has been joined to the suit " as he is to get half share in the suit property if plaintiff No.1 gets possession. "

(3.) THE plaintiffs went in appeal to the Assistant Judge at Belgaum (Civil Appeal No.87 of 1939 ). In appeal the findings of the learned trial Judge were accepted and the decree passed by him was confirmed. Against that decree the plaintiffs preferred a second appeal (No.33 of 1941 ). Mr. Justice Sen who heard the said second appeal came to the conclusion that the view accepted by both the Courts below that the defendants had proved their plea of permanent tenancy with regard to the two lands Revision Survey Nos. 58 and 59a was erroneous in law. He held that on the documents produced in the case, the tenancy had been traced to 1860. He also held that the said documentary evidence "would make 1861 the year of its commencement at the earliest. " Mr. Justice Sen also held that even if the tenancy be deemed to have existed for 20 or 25 years prior to 1886, the period of five years within which its commencement could be deemed to have been proved was a fairly definite period within the meaning of Section 83 of the Land Revenue Code. Thus the conclusion of Mr. Justice Sen was that the tenancy in question had been shown to have commenced in 1861 or between 1860 to 1865. In either view, according to Mr. Justice Sen, the landlord must be deemed to have proved by satisfactory evidence the commencement of the tenancy. On this view of the matter Mr. Justice Sen set aside the decree passed by both the Courts below, allowed the appeal and decreed the plaintiffs' claim for possession even as regards the two Revision Survey Nos. 58 and 59a. Against this judgment of Mr. Justice Sen defendants Nos. 3 to 5 and 8 and 9 have preferred the present Letters Patent Appeal,