GANESH Vs. G. S. KHAPARDE

JUDGEMENT

(1.) THIS case arises from a protracted litigation which began in 19i5 with Civil Suit No. 46 of 1915 in the. Court of the Subordinate Judge, Ellichpur. The predecessors of the present plaintiffs sued the present defendant for possession and mesne profits of a certain field. They alleged that the defendant's father had got a portion of the field about 1882 on a 20 year 3 lease, that thereafter he had been given a lease for a year of the whole field, and then had been holding the field over on the same rent. The defendant denied specifically and emphatically that he was a tenant of the plaintiffs, and claimed that the field had been given to him in perpetuity on payment of the land revenue only, in consideration of legal advice and other services rendered. The Subordinate Judge held that the defendant was not the owner but the permanent lessee of the field and gave a decree for ejectment on the ground that during the trial of the suit the defendant had denied the plaintiff's title as owners. He granted also a decree for arrears of rent. The judgment of this Court is Ex. P-4 in the present record.

(2.) THE defendant appealed to the District Judge who delivered judgment on 18-10-18 (copy filed as Ex. P-6). He held that the denial of title had not been made prior to the suit and could not therefore be a basis of a claim for eviction on the ground of forfeiture. He held further that what had been transferred was a right to cultivate the land in perpetuity, conditionally on the payment of whatever assessment Government might charge. He accordingly reversed the whole decree of the lower Court and dismissed the suit with costs. The plaintiffs then appealed to this Court and the judgment of Kotval, A.J.C., appears as Ex. P-13. The learned A.J.C. makes no definite finding as regards the rent payable by the defendant to the plaintiffs, but he makes a specific finding "that the defendant was created a permanent lessee." Ha also restored the lower Court's decree for rent. It will be seen that the question of forfeiture based on the defendant's denial of the plaintiff's title during the course of the trial was definitely raised, but was disallowed on the ground that the denial had not been made before the institution of the suit, and did not, therefore, furnish a cause of action which could be included in that suit.

(3.) AS regards these, facts there can be no, possible doubt. A copy of the written statement in the previous suit has been filed as Ex. p-3, and it most emphatically asserts that the defendant had bean claiming the rights of an owner for many years past and still claims them. The learned Judge of the lower appellate Court has discussed this point in paragraph 7 of his judgment and I concur with him when he says: I can conceive of no more definite unambiguous unequivocal declaration of ownership and denial of plaintiffs' title to the land.