VAMAN VITHAL KULKARNI Vs. KHANDERAO RAMRAO SHOLAPURKAR

JUDGEMENT

(1.) These are two cross-appeals from judgments of the First Class Subordinate Judge of Belgaum. In the suit from which Appeal No. 477 is brought, the plaintiffs are claiming a declaration that they are permanent tenants of the suit land, whilst Appeal No. 471 is an appeal in a suit brought by the landlord, defendant in the first suit, claiming possession of the suit property on the ground that the plaintiffs are annual tenants. So that the real point in both appeals is whether the plaintiffs in the first suit are permanent tenants op annual tenants.

(2.) For the purposes of determining the plaintiffs title, the suit land is divisible into two parts, the claim of the plaintiffs being different in respect of those two parts. There is, first, the property shown on the exhibited plan within the parallelogram A B C D, which I will refer to as the "A property," and then there is the rest of the suit property, partly to the north and partly to the south of the A property, which I will refer to as the "B property". The A property .consists of six bighas, and the B property of twenty-four bighas. With regard to the A property the relevant facts are these. In the year 1815 the whole of the suit property, so far as we know, was granted by the desai of Nippani to the predecessors-in-title of the defendant (I am referring to the defendant in the first suit, i. e. the landlord). The actual sanad is not produced, although the defendant offered to produce it if called for, and therefore we do not know whether the land was actually in the occupation of the plaintiffs or any body else in 1815. That sanad applies to both the lands A and B, but the next four documents to which I will refer relate only to the A land. The first of those documents is exhibit 182, which is the rent-roll for the year 1837 of the desai of Nippani, showing the cultivators of various lands belonging to him. Amongst those cultivators is included the name of Nilappa Kori as making payment of Rs. 19-14-9 in respect of land in Sankeshvar, which is the village where the land in suit is situated. Then the next document is exhibit 180, which is a similar rent-roll in respect of the year 1841, and that shows that the cultivator of land in Sankeshvar was a man named Vyankappa Sambhu, and the rent he is shown as paying is Rs. 100. Then the next document is exhibit 124, which is a letter written in the year 1844 by the Mamlatdar to the desai of Nippani relating to a quarrel relating to land of the desai in Sankeshvar. It is said that that letter shows that the land in 1844 was in the possession of the defendant's predecessors-in-title, but we only have the statement in that letter of the Mamlatdar, and we have not got any answer to that letter. The next document which I should refer to is the document marked exhibit 16 (1), of the year 1848, That purports to be an agreement by the predecessors-in-title of the defendant in favour of the predecessors of the plaintiffs, and it recognises the plaintiffs as being in possession of six bighas of land at Sankeshvar, and agrees to their spending money by constructing a well, and grants them the land for a term of twenty-one years at a rent of Rs. 22 a year, and thereafter, at the rent of Rs. 30 a year, The plaintiffs rely on that document, but the learned Judge held that it was not proved, and in my opinion, the learned Judge's decision on that point was correct. It was sought to prove the document in certain revenue proceedings, to which I will refer presently, which contemned in, 1888, The witness who was called in those proceedings to prove this document stated that he knew the handwriting it was in, but the document was not signed, and that being so, I think the learned Judge was right in holding that it was not proved. We have, therefore, no actual documentary evidence as to the plaintiffs title to the A land at any rate before about 1855, and the plaintiffs rely on Section 83 of the Bombay Land Revenue Code as raising in their favour a presumption of permanent tenancy. That section provides : .. where by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co- extensive with the duration of the tenure of such landlord and of those who derive title under him. The plaintiffs say that by reason of the antiquity of this tenancy there is no satisfactory evidence as to its commencement or as to its duration, and the answer of the defendant is that the three documents to which I have referred, the documents of 1837, 1841 and 1844, establish this, that in those respective yelars somebody other than the plaintiffs was in possession of the property, and therefore, it is said, the plaintiffs possession must have started after 1844, somewhere between 1844 and 1851. It has been held by this Court in a good many cases that Section 83 of the Bombay Land Revenue Code, in referring: to the absence of satisfactory, evidence of the commencement of a tenancy, does not mean that there must be satisfactory evidence as to the exact date of commencement, that is, the day on which the tenancy commenced, but that it is sufficient if the evidence shows that the tenancy must have commenced in. a particular period ; and the degree of elasticity permissible in relation to the period has been the subject-matter of a good many decisions. Here it is-suggested by the defendant that as the period is fixed between 1844 and 1851, there is sufficient evidence as to the commencement. I doubt that proposition, but in any case, to my mind, the documents relied on by the defendant do not afford any satisfactory evidence that the plaintiffs were not in possession before 1844 or 1837. There is, as I have pointed out, no definite evidence that the plaintiffs were not in possession before 1815, because we have not seen the actual sanad. The rent-rolls of the desai in 1837 and 1841, although they refer to land in Sankeshvar, and although it has been admitted that the desai owned no land in that village except the suit land, do not prove that the occupiers referred to in that rent-roll were in occupation of all the desai's land in Sankeshvar. It was found in 1857 in the revenue suit hereafter referred to that property A. had been in the enjoyment of the plaintiffs predecessors from a very old time, and that the occupation of that land and property B had become severed by about 1851. There was no particular reason why the desai's rent-roll should have referred to the names of the cultivators of land, or to the rent they paid, where the land had been granted out to the predecessors of the defendant at a fixed rent of Rs. 100, The letter from the Mamlatdar, exhibit 124, is also, to my mind, a very weak piece of evidence. It is merely a statement of what the Mamlatdar was told, and we have not got the answer to tee letter. Therefore, I am not prepared to say that on those documents I consider that there is any satisfactory evidence as to the commencement of the plaintiffs title in respect of the A property, or as to the duration of their tenancy. Indeed, if exhibit 16 (1) be not proved, ] .there is no evidence at all as to the duration of the tenancy. Therefore, to my mind, the presumption under Section 83 arises. There is nothing in the future - history of the land to affect that presumption. That future history is bound up with property B, and I will refer to it in connection with the other part of the case.

(3.) Now coming to property B, the plaintiffs contention was that they entered into possession of that land as permanent tenants in the year 1851 on the terms of an agreement, which is exhibit 16 (2). The learned Judge held that that exhibits was not proved. It appears that in the year 1855 a suit was commenced in the revenue Court by the landlords of this property against the tenants for possession, and in those proceedings this document, exhibit 16 (2), was put in, and a witness was called, who said that he had been a clerk employed by the landlord, that the document was in his handwriting, and that the last words "these are the blessings" were in the handwriting of the landlord. Assuming that the evidence of that witness can be let in under Section 33 of the Indian Evidence Act, I agree with the learned Judge in thinking that this document is not proved. The important thing about it is that it was never signed, and therefore the document written out by the witness was really nothing more than a draft, possibly a fair copy. It is to be noticed, too, that in the revenue proceedings the Court refused to accept the document. Assuming that the document, exhibit 16 (2), is not proved, then the plaintiffs put their case as to the B land in this way. They say that admittedly their title to the B land commenced in 1851, even if they do not prove the actual agreement under which it arose. In these revenue proceedings, started in 1855, the plaintiffs asserted that they were permanent tenants, no doubt relying on exhibit 16 (2), but at any rate there was an assertion that they were permanent tenants. From 1851 both property A and property B have been held together at one rent, and if there is a presumption that the plaintiffs interest in property A is that of a permanent tenant, the mixing up of that land with property B suggests a similar interest in property B. A uniform rent was paid for both properties down to the year 1879 at the rate of Rs. 127 a year, and thereafter it was enhanced. The plaintiffs case is that it was never enhanced beyond a figure recognised by local usage, and therefore the enhancement would come within the provisions of Section 83 of the Bombay Land Revenue Code, and would not be inconsistent with permanent tenancy. It is said, further, that in the revenue proceedings of 1855 the Collector refused to make an order for possession, and referred the landlord to a civil suit, and for upwards of sixty years no steps whatever were taken to file any suit or challenge the alleged title of the plaintiffs. It is contended, therefore, that the assertion by the tenants of a permanent tenancy, acquiesced in by the landlord for sixty years, and confirmed by acts of the tenant, such as spending money on the property and paying a much smaller rent than the value of the property warranted, leads to a presumption of permanent tenancy, apart from Section 83 of the Bombay Land Revenue Code, and further, that the landlord having acquiesced in that assertion, his title is barred under Art. 144 of the Indian Limitation Act. It is of course admitted that the presumption under Section 83 of the Bombay Land Revenue Code does not arise in the case of the B property, because the date of the commencement of the title is known. To the plaintiffs case the defendant answers that the only assertion of a permanent title was based on exhibit 16 (2),, which is not proved, and .further, that even if that document was proved, it does not constitute a permanent tenancy, and further again, if it does constitute a permanent tenancy, it also fixes a permanent rent, and subsequent enhancement of the rent is inconsistent with title based on a document fixing the rent.