BHAILAL NTAHABHAI Vs. KALANSANG GULABSANG

JUDGEMENT

(1.) [His Lordship held that the defendant was not a permanent tenant and then dealt with the plea of adverse possession thus: -] I now turn to the second question which has been raised in this case, and that is that even though the defendants may have been at one time annual tenants, they may have by adverse possession acquired the rights of permanent tenants. The argument proceeds thus. Before the suit in the Mamlatdar's Court in 1898 the defendants asserted their right to hold as permanent tenants. True those rights were not allowed in those judicial proceedings, but the assertion of those rights made it necessary for the plaintiffs to take some action to assert their title and as they did not do so, the possession being adverse for twelve years, ripened into a title by prescription. Now here again the first answer is to be found in the judgment of the lower appellate Court. It is significant, as I have said before, that the appellant's counsel can point to no assertion of adverse title of this nature after the decision in the Mamlatdar's Court, and the Judge has held upon the facts, though he expresses his conclusion in somewhat different language, that the inference really is that the defendants agreed to continue in possession as annual tenants after these decisions by the Mamlatdar for possession. If that is so, there is of course an end of the matter, and here again that is a conclusion which it was open to the Judge to draw upon the evidence in the case, and one therefore which cannot properly bo challenged in second appeal.

(2.) But even supposing that was not so, though no doubt there are decisions of this Court in Budesab V/s. Hanmanta (1896) I.L.R. 21 Bom. 509 and Thakore Fatesingji V/s. Bamanji A. Dalal, (1903) I.L.R. 27 Bom. 515, s.c. 5 Bom. L.R. 274 that a limited interest can be acquired by adverse possession, it will be seen that the facts upon which at least the former of these cases proceeds are very different from the facts now before us. There the tenant successfully resisted an attempt by the landlord to oust him, pleading a permanent tenancy. And it was held, that being so, adverse possession for twelve years of the limited interest thereby set up was sufficient to confer upon the defendant the character which he claimed. But we have not got here facts resembling those. Here there was no successful resistance by the tenants of a claim to recover possession. The matter was the precise contrary. The plaintiffs succeeded, and though the defendants did remain in possession, it is not shown that they remained in possession, in assertion of an adverse title. For no such assertion is proved after the date of the decision in that case. As for the second ease, Thakore Fatesingji V/s. Bamanji A. Dalal, the facts there were of a special and peculiar nature, and can certainly not form a precedent for the present case.

(3.) Further with reference to these cases and with reference to the general question it is important to bear in mind the remarks of their Lordships of the Privy Council in Mohammad Mumtaz Ali Khan V/s. Mohan Singh (1923) L.R. 50 I.A. 202 Their Lordships say at page 208 of the report :- The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesi was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under-proprietor. It is true that the defendant might, if he had chosen, have at once instituted proceedings for a declaratory decree that the plaintiff was not an under-prorietor, but such a course was equally open to the plaintiff. Each party had had his supposed rights judicially challenged by the other, the plaintiff by the notice of ejectment, of which he had obtained cancellation, the defendant by the assertion in the proceedings for cancellation of the notice for ejectment that he was not liable to be ejected because of his rights as under-proprietor.