MANYA Vs. SITARAM

JUDGEMENT

(1.) ALTHOUGH the actual claim in this case is a petty one, it has given rise to a protracted litigation and certain questions involved are undoubtedly of importance. The plaintiffs Sitaram and four others are malguzars of mouza Pandhara Bodee (Bhandara) and own tank No. 115 therein: their case was that they had let out the tank with a view to singhara cultivation for the Fasli year 1932 to defendant who, however, remained in illegal possession in 1933. They accordingly claimed an injunction restraining the defendant Manya from remaining in possession of the tank. Defendant admitted plaintiffs' ownership of the tank but denied the lease for the year 1932 : he alleged, on the contrary, that the tank had been in his possession for some 35 years on a yearly rent of Rs. 7, i. e., from before the Napier Settlement. According to defendant, Dhondu, father of Plaintiff 1, had given him a perpetual lease of the tank on the rent stated and he had been in undisputed possession ever since. At the first trial of the suit, the Second Munsif, Bhandara, held that the story of perpetual lease was false largely because, while defendant said the lease had been given to him, his counsel said the original lease was given to defendant's father. In view of the vague and loose statements often made by the more ignorant class of litigant in this country, it was perhaps unsafe to attach much importance to this discrepancy in the pleadings; the discrepancy might well have been-so to speak-an innocent or inadvertent one. The Second Munsif, however, further pointed out that the khasra copies (Exhibits D-l and D-2) for 1894-95 and 1916-17 respectively showed that there was only a yearly lease of the tank to defendant. Anyhow the original trial Court held that there was only a yearly letting of the tank and that singhara cultivation did not render defendant a tenant. Accordingly a decree in favour of the plaintiffs was passed. Defendant appealed to the Court of the Additional District Judge, Bhandara, who deemed the case on all fours with those of Battoo v. Narainprasad [1914] 11 N.L.R. 49, and Hari v. Wanu [1915] 11 N.L.R. 129, and who was of opinion that mere singhara cultivation could make no right of tenancy. Accordingly the mere fact that defendant had held the tank for many years was, in the opinion of the Additional District Judge, of no avail and he accordingly dismissed the appeal.

(2.) THESE two decisions of the Courts below led to Second Appeal No. 43 of 1924,' filed by the defendant in this Court. Kinkhede, A.J.C., therein, after pointing out that there were insufficient and faulty pleadings as to the nature of the property or interest defendant enjoyed in the tank, pointed out that not only singhara cultivation but a right of fishery was included in defendant's use of the tank. The right of fishing it was pointed out by the learned A.J.C. amounted to the grant of an interest in immovable property: of. Sitaram v. Petia [1916] 14 N.L.R. 35. Such a right-although perhaps not capable of being acquired by prescription-might come into existence by grant or custom and such a grant might be presumed from long use: cf. Rajrup Koer v. Abdul Hossein [1880] 6 Cal. 39. The case was accordingly remanded to the first Court for trial de novo.

(3.) AN appeal by the plaintiffs in the Court of the Additional District Judge proved successful. The Judge of the lower appellate Court, after considering the evidence, oral and documentary, on record, held that defendant's father had obtained a yearly lease of the tank some 35 years ago for singhara and fishing purposes : he disbelieved the story of a perpetual lease and he further held that, in view of the decisions in 11 Nag. L.R. 49 and 122, quoted above, defendant's claim to hold the tank permanently could not be upheld. All that the defendant had was, in the opinion of the Additional District Judge, a license by way of annual permission to grow singhara and to fish in the tank. The judgment and decree of the Subordinate Judge were accordingly reversed and the plaintiffs' claim was decreed.