VYASACHARYA MADHAVACHARYA GHALSASI Vs. VISHNU VITHAL KULKARNI

JUDGEMENT

(1.) The plaintiff sued to recover possession of the plaint lands together with Rs. 2-0-6 for past damages and costs, alleging that the plaint properties were of his ancestral Inami and Mirasi rights; that the lands were let to defendant on an annual oral tenancy; that the defendant did not pay rent regularly; and that defendant was called upon to pay enhanced rent, but he refused. The plaintiff prayed that in case actual possession could not be allowed to be given, then in the alternative enhanced rent at Rs. 30 per year should be given.

(2.) The trial Court allowed the claim. In appeal the decree was reversed and enhancement was awarded at the rate of the assessment fixed by the Revision Survey. The learned Judge expressed the opinion that if he was wrong on the question of enhancement, the maximum enhancement should be three times the assessment.

(3.) Now the title of the plaintiff is perfectly clear. It is based on a Sanad granted in 1727 by King Shahu Chatrapati of Satara to Narsinhacharya Bin Narsiuhabhat of 20 Bighas. The said Narsinhacharya then made a gift of 10 Bighas in favour of plaintiff s ancestor Narayanacharya Bin Madhavacharya about 1730, and thereafter at the request of the donee, an order (Exhibit 63) was issued by which the gift to Narayanacharya was recognised, and it was ordered that the 10 Bighas should be continued in Inam to the said Narayanacharya and his heirs. It is quite clear from the wording of Exhibit 63 that what was granted was the soil and not merely the royal share of the revenue. The defendants admittedly are tenants in occupation of the land, and it has been found by both Courts, that the origin of the tenancy cannot be ascertained, and no satisfactory evidence of its commencement is forthcoming. Therefore the presumption allowed by Section 83 of the Bombay Land Revenue Code arises, and defendants must be taken to be permanent tenants. But it does not follow from that that they are Mirasi tenants. Section 83 says nothing whatever about Mirasi tenure. Therefore if the defendants are permanent tenants they are subject to the saving clause in Section 83 which says "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,"