VENKATESH Vs. SYED AKBAR

JUDGEMENT

(1.) 1. This appeal arises out of a suit for possession of survey Nos. 32 and 62 in mauza Khadi Khurda in the Arvi tahsil of the Wardha District. The plaintiffs alleged that they were the malik-makbuzas of these fields, that the deceased father of plaintiff 2 had leased them to defendant 1 for Rs. 160 for the year 1927-28, and that defendant 1 had neither paid the rent nor vacated the land after the expiry of the lease. Defendant 1 alleged that he and his ancestors had been in possession of the fields as owners for over 100 years and that, if the plaintiffs had ever had any title, it has been extinguished by adverse possession. He did not state in what right his family Owned the fields. Alternatively he pleaded that he was a permanent tenant. The plaintiff and their predecessors in title have been recorded throughout as the malik-makbuzas of these fields, and defendant 1 and his predecessors in title as the subtenants. The lower Courts have held that defendant 1 is a permanent tenant, without apparently appreciating that the status of a permanent tenant is a status unknown to the C.P. Tenancy Act.

(2.) IT is now conceded before me that the plaintiffs are the malik-makbuzas, and it follows therefore first Under Section 37, C.P. Tenancy Act, that defendant 1 is a subtenant, and secondly Under Section 38 that he holds on such terms as may have been agreed upon between him and his landlord. The defendant's family has been in possession at least since 1888 and the origin of the tenancy is unknown. As stated in Ismail Khan Mahomed v. Jaigun Bibi (1900) 27 Cal 570 at 582: When the origin of a tenancy and the circumstances attending its creation are not known, evidence of the mode of dealing with the land demised and of the acts and conduct of the parties generally constitute the best and indeed the only evidence to prove the nature of the tenancy.