R S RAMMOHANRAI JASWANTRAI DESAI Vs. SOMABHAI NATHABHAI PATEL

JUDGEMENT

(1.) This is an appeal by the original plaintiffs under Clause 15 of the Letters Patent against the decision of Gajendragadkar J., dismissing the appeal which the plaintiffs had brought against the decision of the Assistant Judge, Broach and Panch Mahals, by which he confirmed the trial Court's order rejecting the claim made by the plaintiffs for possession of survey No. 174. The plaintiffs instituted the suit for recovering possession of survey No. 174, as well as three other lands, survey NOS. 32, 45 and 60/6 from the defendants. The plaintiffs' case was that the defendants were their annual tenants. Survey no. 174 measures 9 acres and 14 gunthas or 16 3/4 bighas of land. Fourteen and threefourths bighas out of this land were the subject-matter of litigation between the plaintiffs' ancestors and the defendants' grandfather in Civil Suit No. 54 of 1911. A compromise decree was passed in that suit on 13th February 1912, by which the grandfather of the present defendants, Bhika Parshottam, was allowed to continue as a tenant on certain conditions, to which I will refer later. The plaintiffs contended that this decree created only personal rights in favour of Bhika Parshottam and that the tenancy therefore came to an end on Bhika Parshottam's death in 1927. They also alleged that as Bhikha Parshottam was not willing to continue as a tenant in accordance with the terms of the decree, it was treated as null and void by both the parties, that about 1916-17 Bhikha Parshottam took the remaining portion of survey No. 174 for cultivation and that, thereafter, he gave up his rights under the decree and became an annual tenant. After his death, his son Chatur cultivated the lands on annual oral leases. Subsequently after Chatur's death the three defendants, who are the grandsons of Bhikha Parshottam, continued in possession of the lands as tenants. On 22nd December 1939, the plaintiffs gave a notice to the defendants asking them to hand over possession of the lands on 31st March 1940. As they did not do so, the plaintiffs filed the present suit for possession of the land on 5th January 1943. The defendants contended that they were permanent tenants in respect of 14 3/4 bighas out of Servey no. 174 and survey Nos. 32 and 45. They denied that there was any settlement as alleged by the plaintiffs about the cancellation of the decree passed in 1912 and contended that the rights of the parties in respect of Survey No. 174 were still governed by the terms of that decree. They also contended that this decree treated a perpetual tenancy and that they were entitled to continue as permanent tenants under the terms of this decree. The trial Court -upheld the defendants' contentions and dismissed the plaintiffs' claim with regard to 14 3/4 bighas of land out of Survey No. 174 and Survey Nos. 32 and 45. The trial Court passed a decree for possession in favour of the plaintiffs with regard to the remaining portion of Survey No. 174 and Survey No. 60/6. The plaintiffs appealed to the District Court. The Assistant Judge who heard the appeal partially allowed it and directed the defendants to hand over possession of Survey Nos. 32 and 45 also to the plaintiffs. He, however, confirmed the decision of the trial Court with regard to 14 3/4 bighas out of Survey No. 174. The plaintiffs then filed a second appeal and contended that their claim in regard to 14 3/4 bighas out of Survey no. 174 bad been wrongly rejected by the lower Courts. This appeal was summarily dismissed by Gajendragadkar J. Against that decision the present appeal under the Letters patent has been filed. The defendants have filed crossobjections and have contended that the Assistant Judge was wrong in awarding Page 3 of 10 R.S. Rammohanrai Jaswantrai Desai and Ors. vs. Somabhai Nathabhai Patel and Ors. ... possession of Survey Nos. 32 and 45 to the plaintiffs.

(2.) The only point which has been urged in this appeal by Mr. Desai, who has appeared for the plaintiffs, is that the finding of the two lower Courts that the defendants are permanent tenants in respect of 14 3/4 bighas out of Survey No. 174 is wrong. The plaintiffs' story about the decree of 1912 having been treated as null and void or cancelled and about Bhikha Parshottam having agreed to become an annual tenant from about 1916-17 has not been accepted by both the lower Courts. This being a question of fact, we must accept the finding of the lower Courts on it. Mr. Desai has, therefore, not seriously pressed this point in this appeal. He has, however, contended that the compromise decree of 1912, on which the defendants rely in support of their claim to permanent tenancy created only personal rights in favour of Bhikha Parshottam and did not confer any hereditary' interest. In order to determine this question, we must consider the language and the terms of the decree, the circumstances in which this decree was passed and the subsequent conduct of the parties. See Mt, Bilasmoni Dasi v. Sheo Pershad Singh, 9 I. A. 33 at p. 38 : (6 Cal. 664 P. C.) and Babu v. Sitaram, 8 Bom. L. R. 768.

(3.) The relevant portion o the decree is in the following terms :