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Shripadbhat Anantbhat Joshi v. Rama Babaji Lathi

Bombay High Court

Sep 1, 1926

Judgment

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Factual and Procedural Background

The plaintiffs sued to recover possession of lands from the defendant, alleging the defendant was merely an annual tenant. The plaintiffs asserted that in 1912 they demanded enhanced rent from the defendant's predecessors-in-title, who relinquished the lands pleading inability to pay the enhanced rent. The plaintiffs then leased the lands to Bhau Satgauda Patil by a ten-year rent-note. Bhau's management (vahivat) was obstructed by the defendant's predecessors-in-title, Sakra and Ningappa; Bhau instituted Suit No. 545 of 1913 for possession, which was dismissed. Notice to quit was given at the end of August 1918 to Rama Babaji and Ningappa.

The defendant's case was that his family had held the lands from ancient times as permanent tenants at a fixed yearly rent of Rs. 40 and had been continuously in possession. He contended the suit by Bhau was instituted at the plaintiffs' instance and that the present plaintiffs had effectively been the plaintiffs in that earlier suit; accordingly, the present suit was barred by res judicata by virtue of the decision in Suit No. 545 which had held the defendant's family to be permanent tenants.

In the lower court the preliminary issue on res judicata was heard by the First Class Subordinate Judge, Mr. Natu, who held the present suit was not barred by res judicata. On the merits Mr. Kamat found that the defendant's permanent tenancy had been proved and dismissed the plaintiffs' suit with costs. The plaintiffs appealed from Mr. Kamat's decision.

Legal Issues Presented

Whether the defendant's family were permanent tenants of the lands within the meaning of section 83 of the Bombay Land Revenue Code.
Whether the present suit by the plaintiffs is barred by res judicata by reason of the decision in Suit No. 545 of 1913 (Bhau Satgauda Patil v. Rama Bahiru).
Whether evidence that the tenancy must have commenced within a very long historical period (arguably between the inam grant in 1758–59 and 1857) is a "definite period" sufficient to negative the presumption under section 83.

Arguments of the Parties

Appellant's Arguments (Mr. Desai)

The land had been granted in inam to the plaintiffs' family in 1758–1759 (relying on Inam Commissioner Ex. 43 dated April 30, 1859, and Sanad Ex. 164). Since the defendant's family is admitted to have been on the land since 1857, their possession must have commenced some time after the inam grant and therefore within a definable period (between 1758 and 1857).
The mere length of possession alone is not sufficient to raise the presumption under section 83 of the Bombay Land Revenue Code if the commencement of the tenancy can be shown. He relied on Gangabai v. Kalapa Dari Mukrya for the proposition that a year-to-year tenancy may continue for a very long time, and on Narayan v. Pandurang for the proposition that showing a specific period within which the tenancy must have commenced (e.g., 1830–1850 in that case) is sufficient to negative the s. 83 presumption.
Although three points were said to be argued in the appeal, the opinion records and elaborates primarily the first point concerning the inam grant and the alleged definite period for the commencement of tenancy.

Respondent's Arguments (Mr. Nilkant)

While supporting the lower court's decision on points decided in the respondent's favour, he contended the lower court was in error on res judicata. He argued that Plaintiff No. 1 and the deceased father of Plaintiff No. 2 had actively assisted Bhau in Suit No. 545 of 1913 and had caused Bhau to file that suit; therefore they were in substance the plaintiffs in that suit and the decision should operate as res judicata.
He relied on authority (Shangara v. Krishnan) suggesting that a decision in a suit brought by a benamidar can be binding on the real owner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhau Satgauda Patil v. Rama Bahiru (Suit No. 545 of 1913)	The previous suit concerned possession and included a finding that the defendant's family were permanent tenants at a fixed rent.	The court considered whether that earlier decision operated as res judicata in the present suit and concluded it did not, because the earlier suit was brought by the tenant (Bhau) who did not occupy a representative capacity binding the lessor.
Gangabai v. Kalapa Dari Mukrya	Authority for the proposition that a year-to-year tenancy may continue for a very long time if neither party terminates it.	The appellant relied on this decision to argue that long possession could support a year-to-year tenancy; the court noted the authority but held that the specific question was whether a very long and indefinite period could be treated as a "definite period" under s. 83.
Narayan v. Pandurang	Holds that showing a particular period (e.g., 1830–1850) within which tenancy must have begun can negative the presumption under s. 83, subject to reasonable limits.	The appellant relied upon it to argue that tracing the origin to a defined historical period sufficed; the court accepted the principle but applied "reasonable limits" and held that a century-long period was too long to satisfy the requirement.
Ramchandra Narayan Mantri v. Anant	Holds that the mere fact that a tenancy commenced after the lessor's tenure does not prevent the application of s. 83 in cases where the antiquity of the tenancy makes its commencement obscure.	The court cited and followed this authority to support the conclusion that, because of antiquity and obscurity of commencement, the s. 83 presumption of permanent tenancy applies.
Hazi Vasudev Atre v. Tuharam	Supports the view in Ramchandra v. Anant regarding the application of s. 83 where commencement is obscure due to antiquity.	Used as supporting authority for applying the s. 83 presumption in the present case.
Sidhanath v. Chiko (Sir Norman Macleod C.J.)	States that if a person has been on land so long that the commencement of tenancy cannot be ascertained, the presumption under para. 2 of s. 83 arises; even if the origin was later than the lessor's tenure, presumption may arise if the actual date is unknown.	Cited to reinforce the point that obscurity of commencement (from antiquity) triggers the s. 83 presumption of permanent tenancy.
Shangara v. Krishnan	Addressed the binding effect of decisions in suits by persons acting in representative capacities (e.g., benamidars).	The respondent relied on it to argue the earlier decision should bind the plaintiffs; the court distinguished the present facts (lessee vs. representative) and found the authority inapplicable to make the earlier decree res judicata against the lessor.
Gur Narayan v. Sheo Lal Singh (Privy Council)	Explains that proceedings by or against a benamidar affect the beneficial owner and are generally binding on him for res judicata purposes.	Cited to explain the law on benamidars and representative suits; the court used it to distinguish those situations from a suit by a lessee, which does not bind the lessor.
Katama Natchiar v. The Rajah of Shivagunga	Example of a decision against a representative binding other persons (e.g., heirs) because the representative held the estate for the time being.	Referred to as an illustration of how representative capacity can make a decision binding on others; contrasted with the present case where the earlier plaintiff (lessee) did not represent the lessor.
Ramsumran Prasad v. Shyam Kumari	Another example of a decision against a representative binding successors or others who are not literal parties.	Used similarly as an illustration of the representative-capacity principle; distinguished from the present facts.
Madhavrao Hariharrao v. Anusuyabai	Shows that a Saranjamdar may be barred by res judicata by virtue of a judgment against a former Saranjamdar.	Cited as an example where res judicata operates across holders due to representative or successor relationships; again contrasted with a lessee-lessor relationship.
Rambrohmo Chuckerbutti v. Bunsi Kurmokar	Holds that a decision in a suit by a lessee cannot operate as res judicata against a person claiming the same property through the lessor.	The court relied on this authority to conclude the lessee's suit does not bind the lessor and thus the earlier decree was not res judicata as against the present plaintiffs.
Brojo Behari Mitter v. Kedar Nath Mozumdar	Similar holding that a lessor is not bound by a judgment in a suit by his lessee.	Cited in support of the proposition that the lessor is not to be treated as a person claiming under his own lessee for res judicata purposes; used to reject the respondent's res judicata contention.
Gokul Mandar v. Pudmanund Singh (Privy Council)	Observation that a Code (statute) is exhaustive as to matters it declares and judges should not disregard the letter of the enactment.	Cited in the context of res judicata and statutory interpretation to underline that courts must adhere to the letter of the law when determining the effect of prior judgments.

Court's Reasoning and Analysis

The court conducted a two-fold analysis addressing (1) the application of section 83 of the Bombay Land Revenue Code to the facts and (2) the question of res judicata arising from the earlier suit.

On section 83 and antiquity of tenancy:

The court examined the appellant's primary factual contention that the origin of the tenancy could be fixed within a definable historical period—namely between the inam grant of 1758–59 to the plaintiffs and 1857 when the defendant's family were admitted to be on the land.
The court considered authorities relied on by the appellant (including Gangabai v. Kalapa Dari Mukrya and Narayan v. Pandurang) which recognize that proving a particular period within which a tenancy must have begun can negative the presumption under s. 83, but noted Fawcett, J.'s caveat that such a treatment must be applied with reasonable limits.
The court concluded that the period suggested by the appellant (on the order of a century) was too long and too obscure to be treated as a "definite period" constituting satisfactory evidence of the commencement of tenancy under s. 83. The judge observed that where tenancy is of great antiquity and its commencement cannot be ascertained, the presumption under s. 83 (para. 2) that the holding is permanent arises (citing Ramchandra Narayan Mantri v. Anant, Hazi Vasudev Atre v. Tuharam, and Sidhanath v. Chiko).
On the basis of the antiquity and the obscurity of the commencement of possession, the court held that the s. 83 presumption applied and that the defendant's family were permanent tenants.

On res judicata:

The respondent argued the plaintiffs were in substance parties to Suit No. 545 (Bhau Satgauda's suit) because they had actively assisted Bhau and caused that suit to be filed, so the earlier decision should operate as res judicata.
The court analyzed the law distinguishing suits where a party acts in a representative capacity (e.g., a benamidar, saranjamdar, or other representative) from suits brought by a lessee who is not a representative of the lessor. The court observed that decisions in suits by or against representatives may bind those whom they represent (citing Gur Narayan v. Sheo Lal Singh, Katama Natchiar, Ramsumran Prasad, Madhavrao Hariharrao v. Anusuyabai).
However, the court emphasized that a tenant who sues in his own right (a lessee) does not occupy such a representative capacity that a judgment in his suit will operate as res judicata against the lessor; the lessor is not to be treated as a person claiming under his own lessee. The court relied on Calcutta High Court authorities (Rambrohmo Chuckerbutti v. Bunsi Kurmokar, Brojo Behari Mitter v. Kedar Nath Mozumdar) and relevant Privy Council observations to reject the res judicata contention.
Applying these principles, the court concluded the earlier suit by Bhau did not operate as res judicata against the present plaintiffs because Bhau was their tenant, not a representative of the plaintiffs; consequently the previous decree did not bar the present suit.

Holding and Implications

APPEAL DISMISSED WITH COSTS.

Holding:

The court affirmed the lower court's decree which held that the defendant's family had a permanent tenancy of antiquity and that the plaintiffs were not entitled to possession.
The court held that the decision in Suit No. 545 of 1913 (Bhau Satgauda Patil v. Rama Bahiru) did not operate as res judicata against the present plaintiffs because the earlier suit was brought by a lessee who did not occupy a representative capacity binding the lessor.

Implications:

Direct effect on the parties: the plaintiffs' appeal was dismissed with costs; the defendant's family remains recognized as permanent tenants under the presumption arising from antiquity under section 83 of the Bombay Land Revenue Code, and the plaintiffs do not obtain the relief of possession.
On precedent: the opinion applies and distinguishes existing authorities on s. 83 and on res judicata (especially the distinction between representative suits and suits by lessees). The judgment does not announce a novel legal principle beyond applying and reconciling existing authorities; it affirms the lower court's application of those authorities to the facts.

This summary is confined to the matters expressly stated in the provided opinion and does not add or infer facts or reasoning beyond the text.

Show all summary ...

Patkar, J.:— 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 end of August 1918 to the defendant Rama Babaji and Ningappa.

2. 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 Bhan 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 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. Rama Bahiru(1). 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. 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 1758–1759 by Shambhu Maharaj of Kolhapur. He relies for this purpose on the decision of the Inam Commissioner, Ex. 43, dated April 30, 1859, and the Sanad, Ex. 164. His contention is that defendant's family are admittedly on the land since 1857, and must have coma into possession some time 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 S. 83 of the Bombay Land Revenue Code if the commencement of the tenancy is proved, and he relies on the case of Gangabai v. Kalapa Dari Mukrya(2), 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.

3. 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 be relies upon the case of Narayan v. Pandurang(3), 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 S. 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 S. 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.

4. 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 S. 83. Assuming that a short period of years is a definite period constituting satisfactory evidence of the commencement of tenancy within the meaning of S. 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 S. 83. The contention of the appellants is, however, opposed to the ruling in Ramchandra Narayan Mantri v. Anant(4), 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 S. 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.

5. The same view was taken in Hazi Vasudev Atre v. Tuharam(5). In Sidhanath v. Chiko(6) 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 S. 83 arises, and it was held in Ramchandra v. 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.

6. The case of Ramchandra v. Anant was criticized on another point, namely that the words ‘origin of the tenancy’ did mean the terms under which the tenant commenced to hold. Fawcett, J., in the case of Narayan v. Pandurang says (p. 835):

I agree with my learned brother that there is no reason to differ from the view taken in Ramchandra Narayan Mantri v. Anant that the mere fact of a tenancy having commenced subsequent to the landlord's tenancy does not present the application of S. 83 because there may be cases where in spite of that the commencement of the tenancy is in obscurity.

7. We think, therefore, that the first point raised by Mr. Desai fails. (After discussing further evidence on the point his Lordship held that by reason of the antiquity of the defendant's tenancy there is no satisfactory evidence of the commencement of the tenancy of the defendant's family, and under S. 83 of the Bombay Land Revenue Code the tenancy of the defendant's family is permanent, and proceeded.) Mr. Nilkant on behalf of the respondent supported the decision of the lower Court on the points decided in his favour but contended that the decision of the lower Court on the point of res judicata was erroneous. Mr. Nilkant contended that the present Plaintiff No. 1 and the deceased father of Plaintiff No. 2 were actively assisting Bhau in Suit No. 545 of 1913 and had caused Bhau to file the said suit and were practically the plaintiffs though they did not appear as plaintiffs formally, and therefore the decision in Suit No. 545 of 1913 operated as res judicata. He relied on the case in Shangara v. Krishnan(7) where it was held that a decision in a suit brought by the benamidar was binding on the real owner. The case of a benamidar is quite different to the case of Bhau Satganda, the tenant who brought the previous an it. Though a benamidar has no beneficial interest in the property, he represents in fact the real owner. Their Lordships of the Privy Council in Gur Narayan v. Sheo Lal Singh(8) observe (p. 9):

Their Lordships find it difficult to understand why, in such circumstances an action cannot be maintained in the name of the banamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition Shat in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result as fully binding on him.

8. The benamidar occupies a representative capacity and it is possible that in cases where a suit is brought in a representative capacity the decision in the suit may be binding on parsons who may not be parties to the suit or claiming through them, as for instance a decree fairly and properly obtained against a Hindu widow may bind the succeeding heirs because the whole estate is for the time being vested in her: see Katama Natchiar v. The Rajah of Shivagunga(9) and Ramsumran Prasad v. Shyam Kumari(10).

9. So also the next, Saranjamdar may be barred by the principle of res judicata by virtue of the judgment obtained against the former Saranjamdar: see Madhavrao Hariharrao v. Anusuyabai(11). But the reason why the previous decision operates as res judicata against other persons who are not parties to the previous suit or literally claiming through them, is that the previous suit was either brought by or against persons who occupied a representative capacity. In the present case the tenant of the present plaintiffs, who brought the Suit No. 545 of 1913, did not occupy a representative capacity and the present plaintiff, who is the lessor, cannot be said to be a person claiming through Bhau who was his lessee. It has been held by the Calcutta High Court In Rambrohmo Chuckerbutti v. Bunsi Kurmokar(12) and in Brojo Behari Mitter v. Kedar Nath Mozumdar(13) that the decision in a suit by the lessee cannot operate as res judicata against a person claiming the same property through the lessor; and that a lessor cannot be considered as a party claiming under his own lessee. In Gokul Mandar v. Pudmanund Singh(14) their Lordships of the Privy Council observed when dealing with the question of res judicata that (p. 715):

The essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

10. We think, therefore, that the decision in the previous Suit No. 545 of 1913 Bhau Satgauda v. Rama Bahiru does not operate as res judicata. The result is that in my opinion, the decision of the lower Court is correct and this appeal should be dismissed with costs.

11. Fawcett, J.:— I agree. With regard to the question of the application of S. 83 of the Bombay Land Revenue Code, the tenancy in question can certainly claim to be of antiquity in view of the fact that it may have gone back to the year 1758, if not earlier, and it is in consequence of that antiquity that I think there is an obscurity as to the commencement of the tenancy. I quite agree that logically Mr. Desai for the appellants can contend that a period of a hundred years falls within the view taken in Narayan v. Pandurang, but as there mentioned, some reasonable limits must be applied, and I think that, at any rate, a period of hundred years is too long to satisfy that condition. The learned Subordinate Judge has written a full and careful judgment in which he has considered all the questions arising, and there is, in my opinion, no adequate reason for our interfering with his decree.

12. Appeal dismissed.