BABUSING RAMCHANDRA RAJESHIRKE Vs. PANDU TATYA KATE

JUDGEMENT

(1.) This appeal must be allowed.

(2.) The plaintiff sued to recover possession of the suit land from the defendant. The trial Court found that the defendant had perfected his claim to mirasi rights by adverse possession, but that the plaintiff was entitled to claim enhanced rent. In appeal the finding as regards the mirasi tenure was affirmed, but plaintiff s claim for enhanced rent was disallowed, the Judge holding that the defendant ought to have been given an opportunity to lead evidence as regards that claim. The plaintiff could only claim enhanced rent by local usage, or prescription or agreement.

(3.) We think that the decision of both the Courts that the defendant had succeeded in proving his claim to hold as a permanent tenant by adverse possession cannot be supported. Reference may be made to Budesab v. Hanmanta (1896) I.L.R. 1 Bom. 509 where it was held that where a landlord seeks to recover from his tenant possession of land in his tenant s occupancy, and the latter, alleging a perpetual tenancy, successfully resists on that ground the landlord s attempt to dispossess him, the tenant may, after the statutory period has expired, plead limitation in bar of a subsequent suit in ejectment by the landlord. The question then arises, if the person in occupation of the land as a tenant can assert permanent rights of tenancy and can acquire such rights by adverse possession, when does time begin to run against the landlord? The Judges said (p. 516): We do not say that a tenant by a false allegation as to the terms of his tenancy though continuously repeated can alter those terms. Such allegations do not necessarily throw upon the landlord the onus at refuting them by suit....But whore a landlord seeks to recover possession of land in his tenant s occupancy from the tenant, and the latter, on the allegation of a perpetual tenancy, successfully resists the landlord s attempt to dispossess him for the statutory period, the current of authority to which we have referred in our opinion establishes that the law of limitation can be successfully pleaded in bar of a suit in ejectment by the landlord.