CHIKKO BHAGWANT NADGIR Vs. SHIDNATH MARTAND

JUDGEMENT

(1.) This is an appeal under the Letters Patent from the judgment of the learned Chief Justice allowing the plaintiffs claim for a declaration that the defendants were their annual tenants. It is not necessary to set forth the previous history of this case. It is enough to point out that in November 1919 the case was remanded for the purpose of determining the nature of the defendants tenancy, as to which the plaintiffs had sought a declaration. Both the lower Courts found that the tenancy commenced after the gift by the original owners in favour of the ancestors of the plaintiffs predecessor-in-title. They applied the provisions of Section 83 of the Bombay Land Revenue Code and presumed that the tenancy was permanent, mainly relying on the observations in Ramchandra Narayan Mantri V/s. Anant (1893) I.L.R. 18 Bom. 433.

(2.) When the second appeal came on for hearing, it was held that Section 83 of the Bombay Land Revenue Code did not apply as the commencement of the tenancy was traced, and that it could not be said, as required by Section 83, that by reason of the antiquity of the tenancy no satisfactory evidence of its commencement was forthcoming, having regard to the finding that the tenancy commenced after the gift in favour of the ancestors of the plaintiffs predecessor-in-title in 1805.

(3.) The defendants, who have appealed from this judgment, have contended that Section 83 does apply to this case. Though the learned pleader has questioned the finding of fact that the gift in favour of Shantacharya's ancestor was in 1805, and that the tenancy of the defendants commenced thereafter, I do not think that that contention could be allowed. Both the lower Courts have found that as a fact, and it is not shown, nor is it suggested in the memorandum of appeal, that that finding is not supported by the evidence in the case.