CHATURBHAI LALLUBHAI PATEL Vs. MOTIBHAI BAPUJI PATEL

JUDGEMENT

(1.) The plaintiffs filed the present suit as the assignees of the original owners of the land in suit to recover possession of the property, and for accounts on the footing that the transaction of April 22, 1892, was a mortgage. The original owners passed a document in 1892 in favour of the father of the present defendant No. 1 and the husband of the present defendant No. 2 whereby they purported to convey to these persons the right to hold the land for 500 years in consideration of their having received at the time a sum of Rs. 180 (Babashahi coins). The defendants contended that the plaintiff's had no right to the land, and that in any case the plaintiffs were not entitled to recover possession before the expiry of the period mentioned in the document. Various issues were raised in the trial Court, one of which was, whether the plaintiffs claim was time-barred. The trial Court held that the alienation evidenced by this document of 1892 was void in consequence of the provisions of the Bhagdari Act (Bom. Act V of 1862), and that from the date of the document the defendants had held possession of this land adversely to the rightful owners. It accordingly dismissed the plaintiffs suit. On issue No. 3, which related to the assignment in favour of the plaintiffs, it was found that the assignment was proved. No findings on the second part of Issue No. 3 and other issues were recorded.

(2.) The plaintiffs appealed to the District Court, and the only point before the learned Judge was whether the lower Court had erred in holding that the plaintiffs claim was barred by limitation. It found that the lower Court had erred in doing so The learned Assistant Judge was of opinion that the defendants acquired title by adverse possession only to the limited interest evidenced by the document of 1892, and that as it was not a sale, it was necessary to determine whether it was a lease or a mortgage. The learned Judge on that footing reversed the decree of the trial Court and remanded the suit for decision on all the issues.

(3.) From that order of remand the present appeal is preferred to this Court, and it is urged in support of the appeal that by adverse possession the defendants have acquired such right as is conveyed by the document of 1892, and further that Section 10A of the Dekkhan Agriculturists Relief Act would not apply to this transaction, and that, therefore, the document must be read according to its terms, and the transaction evidenced by it must be taken to be what it purports to be, namely, an alienation of the right to hold the land for 500 years. It is not disputed before as, and cannot be disputed, that the defendants are entitled to such rights "as they have acquired by the document of 1892 by adverse possession. The principle of the decision in Adam Umar V/s. Bapu Bawaji (1908) I.L.R. 33 Bom. 116; 10 Bom. L.R. 1128 applies, whether the document is a sale or purports to convey a limited interest. It cannot be disputed, and it has not been disputed, that Section 10A of the Dekkhan Agriculturists Relief Act cannot apply to this transaction having regard to the decision in Sawantrava V/s. Giriappa Fakirappa (1913) I.L.R. 38 Bom. 18; 15 Bom. L.R. 778. F.B.. When these two propositions are accepted, it is difficult to understand why the case should have been remanded. The learned Judge appears to have remanded the case to the trial Court possibly on the understanding that in virtue of the provisions of Section 10A the plaintiffs may be able to establish that the transaction was intended to be a mortgage by means of extraneous evidence. But no such evidence would be admissible as Section 10A of the Dekkhan Agriculturists Relief Act does not apply; and the document on its face does not purport to be a mortgage. Whether it may be called a sale of a limited interest or a lease of -00 years, it undoubtedly gives the defendants a right to hold the land for 500 years for a certain consideration and that is the right which they have acquired by adverse possession, and that is the right to the enjoyment of which they are entitled as against the plaintiffs. Apart from the provisions of Section 10A, the contention of the plaintiffs that the transaction was a mortgage and not a lease does not present any difficulty. The Patta in this case has no resemblance to the Patta which the Court had to consider in Mahmad V/s. Bagas (1908) I.L.R. 32 Bom. 569; 10 Bom. I.R. 742; and it must be taken to be an alienation by way of a leases for a long term, though not an out and out sale.