SURSINGJI DAJIRAJ THAKORSAHEB Vs. MANILAL VALLABHDAS PARIKH

JUDGEMENT

(1.) This is a suit brought by the plaintiff who is the talukdar of Utelia in the Dholka Taluka in the Ahinedabad District and also the talukdar of Hariala to recover enhanced rent from the defendant who holds nine lands situated at Hariala.

(2.) The plaintiff's case was that the tenancy was annual whereas the defendant's case was that it was permanent. Both the lower Courts held that the tenancy was ancient and there was no satisfactory evidence of the commencement of the tenancy, but came to the conclusion that there was evidence of usage as to the duration of the tenancy to the effect that the tenancy was from year to year and therefore allowed the plaintiff's claim for enhancement. The defendant preferred a second appeal and Mr. Justice Jladgavkar reversed the decisions of the lower Courts, and came to the conclusion that the usage relied on by the talukdar plaintiff was not proved, and sent down certain issues -for finding as to whether the plaintiff proved his right to enhance the rent and if so to what extent.

(3.) It is urged in this appeal that Mr. Justice Madgavkar had no jurisdiction under a 100 of the Civil Procedure Code to interfere with the finding of fact as to the usage arrived at by both the lower Courts and that his decision was wrong on the merits. On the first point it is urged, relying on Muhammad Kamil V/s. Imtiaz Fatima (1908) L.R. 36 I.A. 210, 220 : S.C. 11 Bom. L.R. 1210 and Anant Singh V/s. Durga Singh (1910) L.R. 37 I.A. 191, 197 : S.C. 12 Bom. L.R. 604, that the question as to the existence of usage is a question of fact. And it is further urged, relying on the decision of the Privy Council in Midna-pore Zamnindary Company v. Secretary of State (1929) 32 Bom. L.R. 114, P.C. and Raja of Pittapur V/s. Secretary of State that in second appeal there is no jurisdiction to interfere with the decision on a question of fact however erroneous the finding may be. It has, however, been held in Palaniappa Chetty v. Deivasilcamony Pandara (1917) L.R. 44 I.A. 147 : S.C. 19 Bom. L.R. 567 that the rule as to concurrent findings does not apply to findings as to the existence of a custom, since that is a matter of mixed law and fact. In Tajammul Husain V/s. Banwari Lal (1925) I.L.R. 48 All. 77 it was held that the existence of a large number of sale-deeds, extending over a period of some sixty years, whereby tenants owning houses in the abadi had transferred them to strangers, without any objection on the part of the Zamindars was evidence upon which the High Court, in second appeal, might find the existence of a custom established although the lower Courts had negatived its existence. In Ratilal V/s. Motilal (1924) 27 Bom. L.R. 880 it was held that, in second appeal, the Court will entertain objections based on the ground that the evidence as a whole amounts to insufficient proof in law of a local custom, but will not go into the question whether a specified instance is properly proved or not, unless some point of law is involved, such as the improper admission or rejection of evidence. We think, therefore, that the question as to the existence of a custom is a mixed question of law and fact, and therefore it would follow that it is within the jurisdiction of the High Court in second appeal to interfere with a finding as to the custom contrary to the findings of the lower Courts. With regard to the second question as to whether the decision of Madgavkar J. is erroneous on the merits, it is urged on behalf of the appellant that there cannot be a permanent tenancy under Section 83 of the Bombay Land Revenue Code with reference to talukdari estates, and that according to Section 108 of the Bombay Land Revenue Code the name of the tenant has to be entered in respect of the land, whereas under a 5 of the Gujarat Talukdars Act the name of the talukdar is entered as the occupant. If it was the intention of the Legislature that there could not arise a permanent tenancy by virtue of Section 83 of the Bombay Land Revenue Code in talukdari estates it would have been so expressly enacted and Section 83 would have been made inapplicable to talukdari estates. We find that Section 83 is not included in Section 33 of the Gujarat Talukdars Act among the sections of the Land Revenue Code which are inapplicable to talukdari estates. We cannot, therefore, accept the contention on behalf of the j appellant that a permanent tenancy under Section 83 of the Bombay Land Revenue Code cannot be held established with reference to talukdari estates. On the other hand, there are two decisions of this Court in Amarsangji V/s. Ranohhod (1924) 27 Bom. L.R. 267 and Juvansingji V/s. Dola Chhalam (1924) 27 Bom. L.R. 891 in which Section 83 was applied to talukdari estates. The first case expressly refers to talukdari estates and the second case refers to a land which was given in gift as pasaita. Though the facts in the two cases are distinguishable from the facts of the present case they give rise to the inference that so far as talukdari estates are concerned there is no prohibition of a presumption being raised under Section 83 of the Bombay Land Revenue Code.