NARAYAN BALKRISHNA Vs. SHIVSHANKARDAS SHIVLALDAS

JUDGEMENT

(1.) The plaintiff, who is the inamdar of the village of Narayanpur, sued to recover possession of the plaint fields from the defendants, together with water cess and costs, alleging that defendant No. 1's father had passed a rent note to him on March 2, 1904, agreeing to pay local fund and assessment, to deliver up possession whenever demanded, and not to alienate the property. After the death of the father, defendant No. 1 sold the property to defendant No. 2 and the deceased father of defendants Nos. 8 and 4. The suit was filed as long ago as 191,9. Originally the first Court gave the plaintiff a decree for possession. On appeal the decree was reversed, and the suit was remanded, and on June 15, 1926, it was dismissed after remand, There was again an appeal, and the decree of the lower Court was reversed, and the plaintiff's suit decreed against all the defendants, Defendant No. 1 has not appealed. Defendants Nos. 2 to 4 have made this second appeal.

(2.) This appeal has been argued at considerable length, and a great many authorities have been quoted, but it would not be necessary to deal with them all, as the facts are not really very complicated. The plaintiff is an inamdar or jahagirdar of a great many villages, amongst them the three villages of Narayan pur, Hardoli and Kathore, which were granted to his ancestors as long ago as 1626 by the Mogul Emperor, and these grants were subsequently confirmed by succeeding Governments, as will appear from the letter of the Collector of Khandesh, which gives a history of the grant. That is Exhibit 219, dated December 1 1852, at p. 70, The grant was confirmed by the British Government, and the sanad is on record. The previous sanads from the Mogul Emperor and the Pashwa are not on record. The principal question that has been argued in this appeal is whether the plaintiff is the grantee of the soil, or only of the royal share of the revenue, but as a matter of fact, for the determination of this appeal it is not necessary to decide this point, although it has been argued, and I will deal briefly with it. The questions as regards the rights of the parties in this suit are more or less academic, and do not really affect the result. The lands in dispute are Tika Nos. 20, 22 and 25. The village has not been surveyed, and in the present case the tenancy of defendant No. 1's father admittedly commenced in the year 1904-05, and commenced by a grant from the plaintiff. Now it is in evidence that the plaintiff receives grazing fees in the village, recovers water cess for the use of river water flowing into the village, and has received compensation for some land acquired under the Land Acquisition Act. It is also in evidence that the lands in dispute (there are two lands in dispute because defendant No. 1 has not appealed) were fallow for three years, and before that they were cultivated by one Gounshankar, and then they were relinquished by him, and they were granted by the inamdar to the father of defendant No. 1. Now whether the plaintiff is the owner of the soil or not, he is the person to whom in this village rajinamas are executed, and he is the person who grants unoccupied lands to tenants, and in the present case we have a rent note, Exhibit 40, which was executed by the father of defendant No. 1 to the inamdar. Whether or not the inatndar is the owner of the soil, he is undoubtedly the superior holder of this land, and in Rajya V/s. Balkrisltna Gangadhar, s.c. 7 Bom. L.R. 439 it is said that lands may have been unoccupied at the date of the inam grant, or the occupation rights that then existed in them may have lapsed, and these would be sheri lands. Now these are lands in which whatever rights there were before, whether occupancy or otherwise, had lapsed, and they had become sheri lands, and the inamdar, even if only a grantee of revenue, would be entitled to place tenants in possession of them not by virtue of any interest in the soil, but as being entitled to make the most he can out of them by way of revenue, and in such a case direct contractual relations would be established between the inamdar and the holder, and if those contractual relations are defined by an express contract of which there is evidence, then the rights of the parties must be determined by that contract. Quite apart, therefore, from the question whether the inamdar is or is not the owner of the soil in this village, he was in the position of having acquired this land in dispute as his sheri lands, because the rights of the former tenants in them had lapsed, and he granted them to the father of defendant No. 1 on a contract which is evidenced by Exhibit 40, and the rights of the parties must be judged on that. Now Exhibit 40, at p. 15, is a rent-note which Bays, after certain preliminary remarks as to the village being a new jahsgir village and not surveyed : 1 take the following numbers for cultivation from you for the year 1904-05, (Then the numbers are given). These numbers 1 have taken from you for cultivation. 1 will go on paying Jama and local fund in respect of the said numbers as and when the instalments become due. 1 will not raise any objection. If the land remains uncultivated or if it is cultivated, I will pay the amount of Jama without any objection. If I want to give up the numbers, I will pass rajinama in the month of March, 1 will not sell or mortgage the numbers to any creditor. The numbers belong to you.

(3.) The relations between the parties must be governed by the terms of this document. This is not a Government village, and in view of the definition of an occupant in the Land Revenue Code, which means a holder of unalisnated land, the tenants cannot be occupants. They can only claim to be permanent tenants if they were granted a permanent lease by the plaintiff. The first Court found that the execution of this kabulayat was not proved, bat the lower appellate Court has found it proved. That is a finding of fact which must be accepted It has been contended by the learned advocate for the appellant that Exhibit 40 being a lease from year to year, requires registration. A similar point came before me in regard to the same plaintiff regarding land in another village, and the judgment is reported in Pandu v. Shivshankar das (1928) 31 Bom L.R. 335. I only refer to that case, because the oases on the question of the compulsory registration of tenancies at will are collected there, or some of them. In my opinion, Exhibit 40 is a tenancy at will, because the lessor has the power to eject the lessee. He might even do so on the day after the lease was executed, and that is contained in the sentence, " I will without any objection, vacate and deliver the said numbers when you demand the same " It has been argued that the lessee equally has the right to give up the land when-ever he likes, and that will prevent it being a tenancy at will, but every tenant, unless he cares to be a tenant for a fixed term of years, must necessarily be able to give up the land if he wishes. In my opinion, this document, Exhibit 40, is clearly a tenancy at will, and as such it does not require registration. The cases which have been quoted on this point are, Khuda Bakhsh V/s. Shea Din (1886) I.L.R. 8 All. 405, Khayali V/s. Husain Bakhsh (1886) I.L.R. 8 All. 198., Apu Budgavda V/s. Narhari Annajee (1878) I.L.R. 3 Bom. 21., Yousaf Poleologo (1906) 8 Bom. L.R. 580, Jugjivandas Javherdas V/s. Narayan (1884) I.L.R. 8 Bom. 493. In addition to these, Jivraj Gopal V/s. Atmaram Dayaram (1889) I.L.R. 14 Bom. 319 and Ratnasabhapathi V/s. Venkatachalam (1891) I.L.R. 14 Mad. 271 are quoted in Pandu v. Shivshankardas. If, therefore, the lease does not require registration, and that was a point which was not taken in either of the Courts below, the case must be decided on the contractual relations between the parties which are evidenced by it. It is somewhat difficult to understand what the case of the defendants can be. This is not a case in which they can rely on long possession. Defendant No. 1's father, from whom all the other defendants claim, came into possession very recently, the land being fallow before, and they would seem to rely on a custom by which rights resembling those of an occupancy tenant, namely, the right to hold the land be long as they pay assessment prevails in the village, and reference has been made to various other cases, the judgments in which have been put on the record. Those are oases between the same plaintiff and other tenants. One of them is from the game village. But each case must be decided on the terms of the contract, if any, between the parties and with reference to the surrounding circumstances and the previous history of the land, and as I have already said, in the present case there is very clear evidence that these lauds were fallow. First they were in the possession of another tenant, Then he left them. They became fallow, and they were in the possession of the inamdar at the date of the commencement of the tenancy of defendant No. 1's father. Now no question of custom can arise where there is an agreement between the parties : I have already referred to Rajya V/s. Balkrishna Gangadhar on that point that the rights of the parties must be determined by their contract, and there is a recent case of the Calcutta High Court in Mahanvniad Ayejuddin V/s. Prvdyat Kumur Tagore (1920) I.L.R. 48 Cal. 359 where it is held that evidence of custom in respect of tenancies is inadmissible where the custom alleged is contradictory to the terms of the written agreement. In these circumstances, whether or not the plaintiff is the grantee of the soil, so far as these lands were concerned, they are his aheri lands, and be was entitled to dispose of them as he thought fit He has so disposed of them by this rent note, Exhibit 40, and therefore the rights of the parties must be determined by that. Exhibit 40 constitutes a tenancy at will, and certainly does not confer any right upon the defendants, i.e, the father of defendant No. 1 to hold the land as long as he likes provided he continues to pay the assessment. On the contrary he binds himself to vacate whenever demanded. There is, moreover, a special prohibition against alienation, and although the learned advocate for the appellants asks me to construe the sentence. I will not sell or mortgage the numbers to any creditor as meaning that a sale to a third party not a creditor will be allowed, I do not think that is a reasonable construction, and the original Marathi does not bear this out. Defendant No. 1, therefore, had no right whatever to transfer this property by sale to defendants Nos. 2 to 4, and they are liable to be ejected. It has been contended that the tenancy came to an end on the death of the father of defendant No. 1, but that does not improve the case at all for the defendants. Either they trace their rights through the father of defendant No. 1, in which case they can have no higher rights than he, and they are therefore bound by Exhibit 40, or else defendant No. 1 was a trespasser after the death of his father, and the suit having been brought within a year of the sale, they are equally liable to be ejected.