Govind Vithu Mali vs Vithal Laxman Deshpande

Patkar, J.—This was a suit brought by the plaintiffs the owners of the watan land in suit to recover possession, or in the alternative for enhancement of rent.

The learned Subordinate Judge held that the defendants had succeeded in tracing their tenure back to such a long period that the burden of showing the commencement of the tenure was shifted on to the plaintiffs, and that the plaintiffs had not discharged the burden, and therefore raised the presumption u/s 83, Bombay Land Revenue Code, and dismissed the plaintiffs'' suit for possession of the land and allowed the enhancement as directed in the decree.

On appeal by the plaintiffs, the learned District Judge expressed the opinion that in view of the fact that the defendants were in occupation of the land as tenants before 1863, and the origin of the tenancy was lost in antiquity, he would have agreed with the view of the lower Court, but relying on the Privy Council ruling in the case of Madhavrao Waman v. Raghunakh Venkatesh AIR 1923 P.C. 205, held that as the tenant could not acquire title by adverse possession to a permanent tenancy against the watandar, no presumption could be raised u/s 83, Bombay Land Revenue Code, in respect of the watan lands.

It is urged on behalf of the appellants that the decision in Madhavrao''s case AIR 1923 P.C. 205 related to a permanent lease granted in 1853 after Regn. 16 of 1827, rendering the watan land inalienable, came into force, but the regulation was extended to Satara District in 1863 and therefore the decision in Madhavrao''s case AIR 1923 P.C. 205 would not preclude the statutory presumption being raised in regard to the appellant''s tenancy which existed long before 1863. It is further urged that the decision in Madhavrao''s case AIR 1923 P.C. 205 proceeded on the ground that a permanent tenancy could not be acquired by adverse possession and did not affect the question of the statutory presumption of permanent tenancy being raised u/s 83, Bombay Land Revenue Code, and that in the case of Vishnu v. Tukaram AIR 1923 P.C. 205, the statutory presumption u/s 83, Land Revenue Code, was raised in respect of watan land, and the decision in Madhavrao''s casa AIR 1923 P.C. 205 was followed only in respect of the right of fixity of rent claimed by adverse possession.

It is not necessary in the present case to go into the general question as to whether the presumption u/s 83 does or does not apply to watan lands, for Regn. 16 of 1827 was extended, to Satara District in the year 1863, vide Bombay Act 3 of 1863 and Baiku v. Vyankatesh AIR 1922 Bom. 52 . In Madhavrao''s case AIR 1923 P.C. 205 the permanent lease was granted on 15th March 1853, after the enactment of the Bombay Regn. 16 of 1827, which did not apply to the Satara District till 1863, and the finding of both the Courts is that the defendants'' ancestors were in possession of the land many years before 1863, when watan lands were not made inalienable in the Satara District. We think therefore that the decision in Madhavrao v. Ragunath AIR 1923 P.C. 205 does not prevent the raising of the statutory presumption u/s 83, Bombay Land Revenue Code, in the Satara District. We would therefore reverse the decree of the lower Court, and restore, that of the Subordinate Judge with costs of this Court and the lower appellate Court on respondents 1 to 3. Cross objections dismissed with costs.

Baker, J.

I agree. The facts of the present case are clearly distinguishable from those of Madhavrao''s case AIR 1923 P.C. 205, which proceeded on the basis that the grant of permanent tenancy was subsequent to the Regulation of 1827. Before the passing of Regn 16 of 1827 a watandar could, apparently without the sanction of the Government, assign or mortgage his service watan lands and could grant a permanent lease of them. The effect of Sections 19 and 20 of that Regulation was to prohibit in the interests of the state all such watandars from alienating in any way the service watan lands which they held as watandars: vide Madhavrao Waman v. Raghunath Venkatesh AIR 1923 P.C. 205. In the present case which comes from Satara, the Regulation of 1827 did not apply. It was only in 1863 that the Regulations were applied to Satara. The commencement of the tenancy in the present case was long prior to that, and appears to have been even prior to 1827. In these circumstances, at the time when this tenancy commenced, there was no prohibition of alienation by a watandar. Therefore Madhavrao''s case AIR 1923 P.C. 205 has no application. In these circumstances the presumption arising u/s 83, Bombay Land Revenue Code, applies, and the view taken by the first Court is correct.

It is not necessary to go into the general question whether there can be a permanent tenancy arising from the presumption u/s 83 in watan land.

I therefore agree in the order proposed.