BHIKAJI VISHNU KARMARKAR Vs. RAMCHANDRA KRISHNA PHATAK

JUDGEMENT

(1.) This appeal arises out of a suit for possession of a demised land. The land is a piece of site measuring sixty by twenty-one cubits in Survey No. 1, Falni No. 1, of Rahatgar and it appears to have been in the occupation of one Balkrishna Bhide who had built a house on it. The appellant purchased it from him in 1894. The site admittedly belongs to the plaintiff and Bhide used to pay him Rs. 2-8-0 per year for swamitwa, and after it was sold to the appellant the appellant continued to pay that amount as rent or swamitwa to the plaintiff. On February 22, 1904, the appellant passed a rent note in favour of Vasudeo, who was the manager of the plaintiff's property for a period of thirty-five years. By that rent note the appellant agreed to pay Rs. 2-8-0 every year, and the relevant portion in it runs thus : You say that you will extend the period of the lease after the expiry of the present time limit. If it suits me I will continue ; otherwise, I will go away. In that case you should obtain a proper punch valuation of the structures on the land and pay the same to me or to my heirs and take possession of thekan together with all trees, structures etc. standing thereon.

(2.) The period of the lease expired on February 22, 1939. The plaintiff then gave a notice to the appellant on November 20, 1939, in which he alleged that as they did not agree to the terms of the continuation of the lease, he did not wish to continue the land with the appellant and wanted him to vacate. The appellant gave a reply stating that the contents of the notice were perverse and not true and that the plaintiff had no right to demand possession of the site. The plaintiff, therefore, filed this suit to recover possession on payment of the valuation of the structures as determined by panchas. The defendant claimed that the plaintiff had no right to demand possession of the site, that he had purchased the site and the structures thereon from Bhide who was a permanent tenant, that the rent note passed by him in 1904 did not affect his right of permanent tenancy, and that when the period of the lease was about to expire he did intimate to the plaintiff that he was prepared to continue the possession of the site and pass a rent note for a permanent lease. Both the Courts below held that Bhide was not a permanent tenant and that in any case the rent note passed by the appellant negatived it and that under the terms of the rent note the appellant could not resist the plaintiff's claim for possession. A suitable decree for the determination of the value of the structures and the eviction of the appellant on the plaintiff's paying that amount was passed.

(3.) It is urged in this Court that Bhide must have been a permanent tenant as he had constructed buildings on the site and was paying only the ground Tent of Rs. 2-8-0 per month to the landlord. It is also pointed out that in the sale deed which Bhide passed in favour of the appellant he stated that the appellant was to enjoy the property from generation to generation and that he could not have used such terms unless he had a permanent interest in the site of the buildings. It may be that Bhide was under the impression that he would never be evicted by his landlord. But there is no evidence to show that he was a permanent tenant or that his landlord had acknowledged him as such. It is true that in the rent note passed by the appellant there is a reference to the sale deed, and it is argued from this that the plaintiff or the manager of his estate who obtained the rent notei must have seen thecontents of the sale deed and thereby tacitly accepted its contents and conceded that the right purchased by the appellant was hereditary and conti-nuable from generation to generation. There is nothing in the rent note to suggest that Bhide's tenancy was permanent. Nor did the appellant who passed the rent note claim such right. Otherwise he would not have passed a rent note for a fixed period of thirty-five years. It must, therefore, be presumed that the appellant was not then in a position to assert that Bhide's tenancy was permanent, and in order to avoid litigation he conceded that it was not permanent and passed a rent note for a limited period. Whatever be the nature of Bhide's tenancy, it was given up by the appellant when he agreed to accept a fresh lease for a limited period. The appellant's contention that he has purchased from Bhide rights of permanent tenancy and, therefore, is not liable to eviction must fail.