SK RAHIMAN Vs. RAJE NILKANTHRAO

JUDGEMENT

(1.) The order of reference to the full Bench does not frmulate the question, which we have to decide. In consultation with the learned counsel on both sides, the question has been formulated as follows: Whether the proviso to sub-section (1) of S. 73 of the Berar Land Revenue Code applies in cases in which the commencement of tenancy is known.

(2.) In order to appreciate the arguments, which have been advanced before us, it is necessary to refer to the relevant provisions of the Code. sub-section (1) of S. 73, as it originally stood, was as follows: Where by reason of the antiquity of a tenancy in n alienated village or holding no satisfactory evidence of its commencement and of its period is forthcoming and there is no usage of the locality as to such period, the period shall, as against the landlord of the tenant, be presumed to be co extensive with the duration of the tenure of such landlord and those who derive little under him. Such tenant is called a tenant of antiquity and his rights shall be heritable and transferable in accordance with his personal law.

(3.) There was an explanation to this sub section which provided that antiquity did not mean absolute antiquity but meant antiquity in reference to the difficulty of securing evidence. This sub section was in similar terms to S. 83 of the Bombay Land Revenue Code, which as follows: And where by reason of the antiquity of a tenancy no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under who they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant be presumed to be co extensive with the duration of the tenure of such land lord and of those who derive title under him. This section came up for consideration before the privy council in Shankarrao Dagadujirao v. Shambhu Nathu, 43 Bom LR 1: (AIR 1940 PC 192). The Privy Council held that the particular presumption mentioned in this S. 83 could to be made save upon two conditions: first, that there is no satisfactory evidence of the date of the commencement of the tenancy, and secondly, that his lack is due to the antiquity of the tenancy. It was observed that by a tenancies antiquity the section does not intend any reference to remote ages in the past or to time immemorial but that it is to be given the practical meaning appropriate to its context and afforded by the limits within which living testimony to past facts is necessarily restricted. In order to be entitled to the status of a tenant of antiquity under sub section (1) of S. 73 of the Berar Land Revenue Code, a tenant had therefore to prove, firstly, that no satisfactory evidence of the commencement of the tenancy any of its period was forthcoming; and secondly that this was due to the antiquity of the tenancy; in other words, he had to show that the origin of the tenancy was lost in antiquity of the origin of the tenancy was lost in antiquity or that it came into existence before the period of living memory. this naturally imposed a heavy burden upon the tenants for proving that they were tenants of antiquity./ It was also held by the courts that if during the period, for which a tenant had been in possession of on land, he had executed leases of tenancies and the consequently, in such cases, the presumption about the antiquity of a tenancy could not arise; see for instance Vijbhukandas V. Ishwardas AIR 1923 Bom 397 and Mohammed Alimulla Khan V. Maruti Janu, ILR (1949) Nag 73: (AIR 1948 Nag 404) in the last case, it was held that the execution of a kabuliyat by a tenant imports a surrender of the old tenancy and commencement of fresh one from that date, and that the commencement of the tenure being known , the requisite conditions in S. 73 of the Berar Land Revenue Code were not fulfilled in order entitle the tenant to claim a tenancy of antiquity.