Patkar, J - (1.)In this case the plaintiffs sued to recover possession of the lands in suit from the defendant on the allegation that he was their annual tenant, that in 1912 the plaintiffs demanded enhanced rent from the defendant's predecessors-in-title and they gave up the land pleading their inability to give enhanced rent, that thereafter the plaintiffs leased the lands to one Bhau Satgauda Patil under a rent-note for ten years, that Bhau was obstructed in his vahivat by the defendant's predecessors-in-title Sakra and Ningappa, that Bhau brought Suit No. 545 of 1913 to recover possession but the suit was dismissed, and that notice to quit was given at the e August, 1918 to the defendant Rama Babaji and to Ningappa. The defendant's case was that his family held the lands from ancient time as permanent tenants on a fixed yearly rent of Rs. 40, that the defendant's family had been all along in possession, that the suit brought by Bhau Satgauda Patil was instituted at the instance of the plaintiffs, that the present plaintiffs were practically the plaintiffs in that suit, and that the present suit is barred by res judicata by virtue of the decision in that suit, in which it was held that the defendant's family were permanent tenants at a fixed rent. In the lower Court the issue on the question of res judicata was heard as a preliminary issue and the First Glass Subordinate Judge, Mr. Natu, held that the present suit was not barred by res judicata by virtue of the decision in Bhau Satgauda Patil V/s. Rama Bahiru. (1918) F. A. No. 261 of 1915, decided by Batchelor and Kemp JJ., an February 2, 1918 (Unrep.) The case was heard on the merits by Mr. Kamat, who held that the permanent tenancy alleged by the defendant was proved and that the plaintiffs were not entitled to the possession sought. The plaintiffs have filed this appeal from the decision of the learned First Class Subordinate Judge, Mr. Kamat, who dismissed the suit with costs.
(2.)Mr. Desai, the learned pleader on behalf of the appellants, has argued before us three points in appeal to support his contention that the defendant's family was not in possession as permanent tenants. The first point raised by him is that the lands were granted in inam to the plaintiffs family in the year 1758-59 by Shambhu Maharaj of Kolhapur. He relies for this purpose on the decision of the Inam Commissioner, Exhibit 43, dated April 30, 1859, and the Sanad, Exhibit 164. His contention is that defendant's family are admittedly on the land since 1857, and must have come into possession sometime after the grant of the Inam to the plaintiffs family, and therefore there is satisfactory evidence of the commencement of the tenancy of the defendant's family, inasmuch as it must have come into existence at some time between 1758 and 1857. Mr. Desai also contends that the mere length of possession is not sufficient to raise the presumption under Section 83 of the Bombay Land Revenue Code if the commencement of the tenancy is proved, and he relies on the case of Gangabai V/s. Kalapa Dari Mukrya (1885) I.L.R. 9 Bom. 419, where it was held that (p. 422) "there is nothing to prevent a tenancy from year to year continuing for a century, or even longer, if neither the landlord nor the tenant chooses to put an end to it." Mr. Desai's further contention is that it is not necessary to prove that the tenancy commenced in a particular year, but it is sufficient if the origin of the tenancy can be traced back to a definite period, and he relies upon the case of Narayan V/s. Pandurang where the period was a period of twenty years from 1830 to 1850 and it was held that it was sufficient to negative the presumption under Section 83 of the Bombay Land Revenue Code. Fawcett J. in that case remarked (p. 834):- Once you get a particular time as in this case you get the years 1830 to 1850 between which the tenancy must have begun, then there is a commencement within a certain period shown which bars the presumption arising. At the same time this treatment of a period as sufficient to satisfy the requirements of a, 83 must of course be applied with reasonable limits. I do not for instance mean to say that it would suffice to show that a tenancy had commenced after the flood. The learned Subordinate Judge held that the period between 1758 and 1912 or 1857 is too long and obscure to be treated as a definite period constituting satisfactory evidence of the commencement of the tenancy within the meaning of Section 83. Assuming that a short period of years is a definite period constituting satisfactory evidence of the commencement of tenancy within the meaning of Section 83, I think that the period of a century is too long and indefinite a period to constitute satisfactory evidence of the commencement of a tenancy within the meaning of Section 83. The contention of the appellants is, however, opposed to the ruling in Ramchandra Narayan Mantri V/s. Anant, (1893) I.L.R. 18 Bom. 433 where it was held that "the mere fact that a tenancy has commenced subsequently to the commencement of the landlord's tenure, does not prevent the application of Section 83 of the Bombay Land Revenue Code... in cases where by reason of the antiquity of the tenancy no satisfactory evidence of its commencement is forthcoming." The same view was taken in Hari Vasudev Atre V/s. Tukaram. (1893) P.J. 323 In Sidhanath V/s. Chiko Sir Norman Macleod C.J. held (p. 536):- But if he can show that he has been on the land so long that the commencement of his tenancy cannot be ascertained, then the presumption under para 2 of Section 83 arises, and it was held in Ramchandra V/s. Anant that even although it was proved that the origin of the tenancy was of a later date than the lessor's tenure, still the presumption would arise, provided, as I take it, that the actual date of the origin was not known.
(3.)The case of Ramchandra V/s. Anant was criticised on another point, namely, that the words orgin of the tenancy did not mean the terms under which the tenant commenced to hold. Fawcett J. in the case of Narayan V/s. Pandurang :- I agree with my learned brother that there is no reason to differ from the view taken in Ramchandra Narayan Mantri V/s. Anant that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not prevent the application of Section 83 because there may be cases where in spite of that the commencement of the tenancy is in obscurity. We think, therefore, that the first point raised by Mr. Desai fails. [His Lordship after discussing further evidence on the point concluded as follows :-]