FAKIR Vs. DATTATRAYA KRISHNA WANI

JUDGEMENT

(1.) THE facts of the case are sufficiently clear from the judgments of the two lower Courts and need not be repeated here. On this second appeal coming on for hearing the pleader for the defendant-appellants only pressed the grounds of appeal relating to fields Nos. 72 and 75, to the question of the validity of the notice alleged to have been sent to the appellants and to the effect of Defendant 2, who was not the manager of the family, having executed the kabulyats.

(2.) THE first Court found that the defendants were permanent tenants so far as fields Nos. 72 and 75 were concerned. In this connexion the plaintiff-respondents admitted that field 75 had been cultivated by defendants' grandfather, Adku, in 1874, while field 72 was cultivated by Adku's brother Shrawan in the same year. As regards what happened before 1874, the position is obscure, the plaintiffs' allegation being that these two fields have been waste land. As is clear from the documents summarised in paras. 8 and 10 of the lower appellate Court's judgment, field No. 72 subsequently first appeared in Exhibit P. 5 which relates to the year 1916, but, as shown by the learned District Judge, it is clear that from 1903 to 1912 field No. 72 was not with the widow of Shrawan and that it was apparently taken up afresh again in 1916. Field 75, on the other hand, has been taken on yearly leases for some 20 years from 1902 as shown by the lower appellate Court.

(3.) THE pleader for the appellants has relied on Raghunath v. Lakshuman [1900] 2 Bom. L.R. 93 as authority for two propositions, viz., (1) that it is open to this Court sitting as one of second appeal to interfere with the finding of the lower appellate Court as to the legal status of the defendants, and, secondly, that permanency of tenancy and fixity of rent are two distinct matters and that a permanent tenancy may still exist, even although a discretion is vested in the landlord to enhance the rent from time to time. As regards the first proposition I fully accept it and I also agree that the fact that the rent may be enhanced from time to time would not necessarily be destructive of a permanent tenancy. But, at the same time, as regards this latter point it seems to me idle to contend, in the circumstances of the present case, where from year to year there has been a formal and annual lease of the two subjects in dispute that the fact of the rent varying largely from time to time is not a strong indication that the tenancy was only an annual one. I can therefore, see no reason for disturbing the finding of the lower appellate Court to the effect that the appellants are not permanent tenants.