YAMUNABAI NARAYAN CHITNIS Vs. LAGMANNA BASANNA KURANI

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the First Class Subordinate Judge of Belgaum, Mr. Koppikar. The suit was brought for possession of certain lands with mesne profits. The original defendants Nos. 1 to 24 were tenants in occupation of the lands in suit, but the real combatant defendant was defendant No. 25, who is the Sar Desai of Vantmuri. The history of the litigation is set out in the learned Subordinate Judge s judgment, but it will be convenient to refer to a few of the more important facts now, in order to bring them into early prominence. It is admitted that the original owner of the lands in suit was the Desai, the predecessor of the present defendant No. 25, to whom I shall in future allude as the defendant. So early as 1774 A. D. his ancestors made a grant of these lands to the plaintiff s ancestors by the Sanad, Exh. 201. A pedigree of the plaintiff s family, so far as we are concerned with it, will be found in the Subordinate Judge s judgment. The plaintiff s ancestors acted as Chitnis and Store-keeper for the Desai, but in 1843 the right of service as Store- keeper was discriminated from the service as Chitnis, and went to another branch of the family. We are not further concerned with any rights connected with the service as Store- keeper. The office of Chitnis remained with the plaintiff s family together with the lands in suit. In the genealogy appearing in the lower Court s judgment, it may be observed that Nilkanth, Gopal and Balkrishna were adopted sons, and their adoptions were in each case duly recognised by the Desai. Balkrishna left no son, and his widow Sundrabai was unable to serve as Chitnis. The Desai, therefore, allocated the lands and the appurtenant cash remuneration to other persons whom he temporarily employed to discharge the duties of the office. In November 1879 Sundrabai mortgaged the lands to the Desai for a sum of Rs. 2,500 and the Desai was put in possession. In 1881 Sundrabai adopted Narayan, who attained majority in 1889, and died either in 1902, or 1903 according to the plaintiff s version. In August 1889 Narayan after reaching his majority redeemed the mortgage, and the instrument, Exh. 56, bears upon it an endorsement of satisfaction. In October 1889 Narayan purported to let out the lands under Kabulayats to six tenants. These Kabulayats which are Exhibits 179 to 184 are for a term of twelve years, and would therefore expire in 1901. The six tenants, however, proved recalcitrant, and Narayan was unable to obtain from them any payment of their rents. He, therefore, filed suits against them, and in those suits obtained decrees for the rents of the years 1890 and 1891. The rents of those years were actually recovered from those tenants by Narayan. In 1894 Narayan brought other suits for the rents of 1892-93 against the six original tenants, and certain other persons who had been put in occupation as tenants by the Desai. In 1896 Narayan obtained from the Court a decree in the suits of 1894, but admittedly he never succeeded in getting that decree executed, and admittedly he never-more recovered any rents in respect of these lands. In other words, after this struggle with the Desai in 1889 he abandoned the matter and acquiesced in the Desai s position.

(2.) The facts which I have above set out are 1 believe not in dispute between the parties. The learned Judge below raised two principal issues one of them dealing with the true construction of the Sanad Exhibit 201, and the other raising the question whether the Desai had a defence to the plaintiff s suit on the ground of his adverse possession. As to the construction of the Sanad the learned Judge found in favour of the plaintiff, but finding that the Desai had proved adverse possession for a period exceeding twelve years, he on this ground dismissed the suit. The judgment, as is invariably the case with Mr. Koppikar s judgments, is a careful document, and for my own part, I agree with the learned Judge below in all that he says as to the questions of fact in this suit, and those questions of fact are, in my opinion, all important. 1 differ from Mr. Koppikar as to the construction of the Sanad, but none the less I desire to say that my judgment is largely based upon my own view as to the facts of the case and if I am right as to those facts, it seems to me that there can be no doubt either of the justice or of the propriety of the decree under appeal. No doubt at first it seems a plausible thing to say that a Court should be loath to defeat the grant of 1774 by reason of adverse possession on the part of the grantor s successor, but if broad propositions of this kind are to go for anything, the case may be put even more favourably for the defendant. For, whereas as I read this Sanad, the lands were granted in consideration of service, the plaintiff in this suit seeks to dispossess the defendant and claims the lands absolutely, repudiating any obligation to serve, and denying that the defendant Desai has any interest in the property. Upon this point it may be well to notice at once that the Desai s position is in my view neither extravagant nor oppressive, and he says in his deposition, which appears to mo to be a candid and truthful statement, "If service is rendered, then only the lands in suit are to be held by the plaintin s family from generation to generation. If they refuse to render the service I have the right of resuming the lands. I have also that right if they deny my title as owner." Now it is an admitted fact that at least for ten years the defendant Desai has been in exclusive occupation and enjoyment of these lands, and throughout that time the plaintiff s family have acquiesced in that position. Now after the lapse of this prolonged period this Hindu lady, acting through her agent, her brother, sues to oust the defendant.

(3.) With these preliminary observations, I go now to the first question to be answered. What is the true meaning of the Sanad, Exh, 201 That document runs as follows:- To Rajeshri Narayan Jivaji Chitnis and Kotnis belonging to Gotra Kashyapa Sutra Ashvalayan. Salutations and request of friend Basavaprabhu walad 1 akhamgowda Desai, Nadgowda, Pargane Hukkeri, Sar Desai of several Mahals and Nadgowda Mamle Murtujabad. The Soor year Khamas, Sabain, Maya Alaf 1175 (i. e. 1774 A. D.) Vritti Patra given in writing by me is as follows:-Your father and you have been serving us faithfully since the time of my father. You have been very useful in serving us. You are serving in many ways as Chitnis and as Koti clerk. Thinking that you are a useful person and that you are competent to perform both these services and that it is necessary to grant to you only (that is, exclusively), the Vritti appertaining to these services and to continue it with you from generation to generation, I have granted to you the Vritti appertaining to the services of Chitnis and Kotnis and the Vritti appertaining to service in respect of the management of the Koti. The emoluments granted in your favour in respect of these two services are as particulars mentioned below.