DHONDU EKOBA WANI Vs. DAMODAR SHRIDHAR DESHPANDE

JUDGEMENT

(1.) These are second appeals arising from suits brought by the respondents, who are jahagirdars and watandars. of the village Gondgaon in East Khandesh, to evict the tenants from certain lands in the village. The earlier suit No. 469 of 1927 relates to S. Nos. 17 and 52 and is the subject of second appeal No. 991 of 1930. The other suit No. 648 of 1927 relates to S. No. 49 and is the subject of second appeal No. 989 of 1930. The tenants denied plaintiffs right to recover possession of the lands on two grounds : (1) that plaintiffs are merely grantees of the assessment and not owners of the soil, (2) that the tenancy is a permanent one. In the first suit the trial Court found on both points in favour of the defendants. In the second the finding; on both was in favour of the plaintiffs. On appeal the District Judge held in both cases that the plaintiffs are owners of the soil and that the alleged permanent tenancy is not proved. Hence both suits have been decreed.

(2.) In these second appeals the first issue has not been argued. It is conceded that the plaintiffs are owners of the soil. Thus the only issue is whether the appellants are permanent tenants.

(3.) It will be convenient to state at the outset what I take to be the law as to the burden of proof in such cases, that is to say, where there are no miraspatras or other documents creating a permanent tenancy and reliance is placed on Section 83 of the Bombay Land Revenue Code. It is for the tenants in the first place to lay the foundation for the application of the section by showing that their tenancy is ancient : Maneklal Vamanrao V/s. Bai Amba (1920) I.L.R. 45 Bom. 350 No definite rule can be laid down as to the duration required to raise a presumption of permanency : Narayan V/s. Raghavendracharya (1900) 2 Bom. L.R. 281 The period of forty years or even less in some cases has been held sufficient. On the other hand mere long duration is not enough to prove permanency. It must appear that by reason of antiquity the origin of the tenancy is obscure. If the landlord can show that the tenancy commenced in a particular year or within reasonably definite limits of time, Section 83 will not come into operation : Chikko Bhagwant V/s. Shidnath (1921) I.L.R. 46 Bom. 687 and Narayan V/s. Pandurang (1922) 24 Bom. L.R. 831. If antiquity is proved and no satisfactory evidence of commencement is forthcoming, the landlord must then produce evidence of agreement or usage to limit duration. Leases for a year or for a fixed time will usually suffice for this purpose, but not always : see Vijbhukhandas V/s. Ishvardas and Raghunath v. Lakshuman (1899) 2 Bom L.R. 93: