Tuka v. Ganu

Patkar, J.:—

This is a suit brought by the plaintiffs to recover possession of the plaint lands belonging to the Nayakwadi Inam Watan which had been alienated by their grandfather and which were not recovered back by their father during his lifetime.

The plaintiffs' grandfather Tatya passed a mortgage in favour of Vyankaji, the deceased father of defendant No. 1, in the year 1868, and sold the property to him on April 16, 1876. The plaintiffs' grandfather died in 1891. Lakhu, the father of the plaintiffs, succeeded to the watan, and took no steps to recover the property, and died on April 29, 1907. He left behind him four sons, Ganu who died on March 13, 1917, aged 25, and the present plaintiffs Tuka, Chandra and Natha, who brought the present suit on April 15, 1924, to recover possession of the property alienated by their grandfather.

The learned Subordinate Judge, relying on the Full Bench decision in Radhabai v. Anantrav Bhagvant Deshpande, held that the defendants had acquired adverse possession for more than 12 years and therefore dismissed the plaintiffs' suit. On appeal, the learned Assistant Judge did not record any decisive finding on the question of limitation, and remanded the case for decision after framing certain issues. On remand, the learned Subordinate Judge considered that the decision of the learned Assistant Judge involved a finding that the case of Radhabai v. Anantrav Bhagvant Deshpande was not applicable to the facts of the case, and held that the plaintiffs' suit was not barred by limitation. On appeal, the learned District Judge came to the conclusion that though the correctness of the decision in Radhabai v. Anantrav Bhagvant Deshpande was doubted, it was still good law and that the suit of the plaintiffs was barred by limitation.

This appeal involves an important question as to whether the decision in Radhabai v. Anantrav Bhagvant Deshpande is still good law or is to be considered to have been overruled by the decision of the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande. In Radhabai v. Anantrav Bhagvant Deshpande, it was held that in the absence of fraud and collusion, adverse possession for twelve years during the lifetime of one holder of service watan lands is a bar to succeeding holders. The alienation in Radhabai's case was an absolute sale in favour of a stranger to the watan who held possession for a period of more than 12 years after the death of the alienor during which time the alienee, who was a stranger to the family, was allowed by the successor of the alienor watandar to continue in undisturbed possession of the watan lands. In Madhavrao v. Raghunath Venkatesh Deshpande the alienation was a lease of permanent tenancy to a tenant of the watan. Their Lordships of the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande observed (p. 264):—

“A careful consideration of Sir Charles Sargent's judgment, as given at page 210 of the report, shows that he was considering the question referred to the Full Bench from the point of view of the grantee having been a stranger to the watan. It is not necessary for their Lordships to decide in this case whether the answer of the Full Bench, limited as it must have been to the case of a stranger to the watan setting up as a defence, 12 years' adverse possession, was or was not correct, although they are constrained to say that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for 12 years of lands, the alienation of which was, in the interests of the State, prohibited.”

Their Lordships further held that in the case before their Lordships the defence of 12 years' adverse possession as permanent tenants was set up by persons who, and their predecessors-in-title, always claimed to be and were tenants of service watan lands, and in the opinion of their Lordships neither the defendants nor their predecessors-in-title could have acquired any title to a permanent tenancy in the lands by adverse possession as against the watandars from whom they held the lands. It appears from the facts in that case that Ramchandra, the father of the plaintiffs in that Case, acknowledged that Waman held the lands as a permanent tenant. Their Lordships of the Privy Council agreed with the view of the High Court that there had been two breaks in the alleged adverse possession within 12 years of the death of Venkatrao but their Lordships did not base their conclusion on that fact.

It is urged on behalf of the appellants, relying on the decision in the case of Vidya Varuthi Thirtha v. Balusami Ayyar, that the estates of successive watandars are life estates and therefore there can be no adverse possession to the watan property. Their Lordships of the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyarl observed (p. 327):—

“According to the well settled law of India (apart from the question of necessity which does not here arise) a mahant is incompetent to create any interest in respect of the math property to endure beyond his life. With regard to mahant No. 2, he was vested with a power similarly limited. He permitted the plaintiff to continue in possession and received the rent during his life. The receipt of rent was with the knowledge which must be imputed to him that the tenancy created by his predecessor ended with his predecessor's life, and can, therefore, only be properly referable to a new tenancy created by himself. It was within his power to continue the tenancy during his life, and in these circumstances the proper inference is that it was so continued, and consequently the possession never became adverse until his death.”

The case of Vidya Varuthi Thirtha v. Balusami Ayyar related to an alienation by a permanent tenancy and did not relate to an absolute sale in favour of a stranger. It was held with reference to Article 134 of the Indian Limitation Act that the endowments of a Hindu Math are not “conveyed in trust,” nor is the head of a math a “trustee” with regard to them, and that even if this were a specific trust which it is not, it would be ridiculous to hold that the rent reserved in the grant to the second plaintiff “was valuable consideration.” It was with reference to the argument based on Article 144 of the Indian Limitation Act that it was observed that Mahant No. 2 permitted the plaintiff to continue in possession and received rent during his life and that the receipt of rent was properly referable to a new tenancy created by himself, and that it was within his power to continue the tenancy and consequently the possession never became adverse. Similarly in Madhavrao's case Ramchandra, the father of the plaintiff, acknowledged that Waman held the lands as permanent tenant. These remarks would hardly apply to the case of an absolute sale of the property to a stranger to the watan. In a later case, Kamakhya Narayan Singh v. Ram Raksha Singh. their Lordships of the Privy Council distinguished the cases of Maharaja of Jeypore v. Rukmini Pattamahevi, Maharani Beni Pershad Koeri v. Dudh Nath Roy, Madhavrao v. Raghunath Venkatesh Deshpande, and Nainapillai Marakayar v. Ramanathan Chettiar,(5) on the ground that the predecessor-in-title of the plaintiff in that case did not recognise the heirs of the mukarridars as his tenants from year to year which finding in itself distinguished the case from the abovementioned cases.

In the case of Radhabai v. Anantrav Bhagvant Deshpnde(6) it was held that in the absence of fraud and collusion, judgment against one holder of service watan lands is res judicata against a succeeding holder. In Madhavrao Hariharrao v. Anusuyabai,(7) the principle of the decision in Radhabai v. Anantrav was applied to the case of a Saranjamdar on the principle enunciated by West J. that a mode of devolution prescribed in particular cases did not make the property subject to it exempt from the effects of a judgment against the person in whom at the time the estate was vested, and it was further held that the claim for payment of assessment was barred by limitation for neither a special mode of devolution nor an incapacity for alienation would prevent limitation from operating against an estate.

The alienation in favour of the father of defendant No. 1 effected in the year 1876 was invalid beyond the lifetime of the plaintiff's grandfather who died in the year 1891. The possession, therefore, of the defendant's father would become adverse from the death of the plaintiffs' grandfather, and the plaintiffs' father did not during his lifetime take any steps to recover the property and died in the year 1907. The possession, therefore, of the defendant's father was adverse as against the plaintiffs father, and would be adverse also against the plaintiffs. By the combined operation of Article 144 of the Indian Limitation Act and the definition of “plaintiff” in section 2, clause (8), of the Indian Limitation Act, the plaintiffs would be barred by the adverse possession of the defendants if the plaintiffs derived their right to sue from or through their father.

The question, therefore, is whether a succeeding watandar claims under his predecessor. In Padapa v. Swamirao Lord Davey observed as follows (p. 561):—

“The appellant was born on the 15th September 1848, and, therefore, attained his majority on the 15th September 1866. Kalova died in November, 1877. At her death, therefore, the appellant was not barred from asserting his original title as heir of Bhujangapa. But on the 15th September 1878, it would seem that he became barred and his title as son and heir of Bhujangapa was extinguished.”

It would, therefore, follow that a succeeding watandar derives his title as son and heir of the preceding watandar which is capable of being barred and extinguished by adverse possession. In Padapa's case, however, the plaintiff, though his claim as heir and son of Bhujangapa was barred on account of the adverse possession of Kalova, was entitled to come in as the heir of Kalova, and it was held that although he was barred by limitation from recovering the land as heir of his father from those claiming under Kalova, and consequently his title as watandar from his own birth was extinguished, that circumstance did not alter the tenure. The lands remained watan and Kalova held possession as watandar, and therefore she could not make any alienation which would be valid against her own heir and though the right of Padapa, the appellant in that case, was extinguished by limitation, there was nothing to preclude him from asserting his title as Kalova's heir.

In Rama v. Shamrao, Sir Lawrence Jenkins observed as follows (p. 137):—

“The view that a succeeding watandar claims under his predecessor, appears to us to receive support from what was said by Lord Davey in delivering the judgment, of the Privy Council in Padapa v. Swamirao”

Their Lordships of the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande have not overruled the decision of the Full Bench in Radhabai v. Anantrav Bhagvant Deshpande. They, however, expressed an opinion that it is difficult to see how a stranger to a watan can acquire a title by adverse possession for 12 years of lands, the alienation of which is, in the interest of the State, prohibited. Sections 8, 9, 10, 11, 11A, 12 and 13 of the Watan Act sufficiently safeguard the rights of the State, and the Collector can assert the rights of the State at any time irrespective of the question of limitation. It has been field that the Collector's action under sections 8 to 13 is not subject to the law of limitation. See Shri Bal-Krishnaji Maharaj v. The Secretary of State, and Chandra Naik v. Bahinabai. Similarly in the case of a Bhagdar, the law of limitation and adverse possession does not bar the Collector from taking action under section 3 of the bhagdari act. See Dala v. Parag, Jethabhai v. Nathabhai, The Collector of Broach v. Desai Raghunath, and Gulabbhai v. Bhagvan. The decision of the Privy Council in Madhavrao v. Raghunath is confined to the case of a permanent tenancy claimed by a person who was the tenant of the watan land. It appears that the decision in Radhabai v. Anantrav(8) has not been overruled by the Privy Council. The consistent View of this Court has been that watan land is amenable to adverse possession as between private persons though the action of the Collector under sections 8 to 13 in the interest of the State is not barred by limitation. The decision of the Full Bench in Radhabai v. Anantrav Bhagvant Deshpande has not been overruled by their Lordships of the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande, and the view that a succeeding watandar claims under his predecessor appears to receive support from the judgment of the Privy Council in Padapa v. Swamirao.(9) In the case of a permanent tenancy the landlord cannot take steps, merely on account of the assertion of the tenant, to recover possession of the land. See the observations of Fawcett J. in Juvansingji Motisingji Thakor… v. Dola Chhala…..(10) But in the case of an absolute sale we think the adverse possession begins to run from the death of the alienor, and if the succeeding watandar fails to take steps to recover possession within 12 years, he is barred, and the succeeding watandars claiming title as heirs of the Previous watandar are similarly barred. I may refer in this connection to the observations in the case of Babaji v. Nana referred to in Gurushidgavda v. Rudragavdati (p. 537):—

“No doubt, if a conveyance by an hereditary officer purported to give to the alienee a greater estate than one for the life of the alienor, the Court would, under the Regulation, have cut it down to an estate for his life. The heir's title to the land would not accrue until the death of A (the alienor) and the possession of the alienee would not be regarded as adverse to the heir, inasmuch as it would be a possession in no wise inconsistent with his title so long as the incumbent A lived. But, from the moment of A's death, the possession would be adverse to B, and, if B suffered 12 years from that event to elapse without bringing his suit to recover the land, we think not only B himself but also B's heir would be barred by the Limitation Law applicable to this case, Act XIV of 1859. To hold otherwise would be to put an end to the law of limitation altogether as to vatans appendent to hereditary offices,—a course which we do not see any valid ground for adopting.”

We are, therefore, bound by the Full Bench decision in Radhabai v. Anantrav Bhagvant Deshpande, which has not been overruled by the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande, and we are not satisfied that the long course of decisions of this Court which appears to be consistent with the decision of the Privy Council in Padapa's case is in any way erroneous. We must, therefore, follow the ruling in Radhabai's case till it is finally overruled.

It is unnecessary, therefore, to go into the question whether Ganu, one of the brothers of the plaintiffs, having died after attaining majority, his right is barred, and therefore, the plaintiffs are not entitled to get the whole of the property on the assumption that their claim is within time.

We would, therefore, confirm the decree of the lower appellate Court and dismiss the appeal with costs.

Shingne, J.:— The plaint-lands are watan lands. Plaintiffs' grandfather Tatya had sold them on April 16, 1876, to Venkaji, defendant No. 1's father and a non-vatandar by a sale-deed Exhibit 22. Prior to that, he had been mortgagee in possession of the same lands. Venkaji went into possession as a mortgagee and continued to be in possession after his purchase. After his death, defendant No. 1 was in possession of the lands till he sold them to defendant No. 2 by the sale-deed Exhibit 23 dated January 12, 1924. Defendant No. 2 went into possession of the lands as the result of the sale. The terms of the sanad do not confer upon the watandar the right of alienating the lands without the sanction of Government. The lands are subject to the usual restriction as regards alienation.

2. Plaintiffs' grandfather died nearly 40 years ago. Plaintiffs' father died on April 29, 1907. He had never objected to the sale to Venkaji. He had five sons, one of whom Dnyanu was given in adoption in another family in 1899. The eldest son, Ganu by name, attained majority in about 1910 and died on March 13, 1917.

3. In December 1917, Dnyanu applied to the Collector on behalf of all the present plaintiffs to get back the plaint-lands from defendant No. 1. The Collector asked him to apply to the Prant Officer. Thereupon, Dnyanu applied to the Prant Officer on April 6, 1918. The application was rejected on October 26, 1918. Plaintiffs brought this suit on April 15, 1924, to recover possession of the property alienated by their grandfather Tatya.

4. The defendants contended that as plaintiffs' father had taken no steps to recover possession of the plaint property, the present suit was time-barred. They relied on the Full Bench case of Radhabai v. Anantrav Bhagvant Deshpande. Plaintiffs relied on the Privy Council case of Madhavrao v. Raghunath Venkatesh Deshpande and contended that Radhabai's case is no longer good law, and that, therefore, the suit cannot be properly held as time-barred.

5. Mr. Kumthekar, the Joint Subordinate Judge, who first tried the case, held that the Privy Council case did not overrule the decision in Radhabai's case on the point under consideration and following the decision in the latter case, held that the suit was time-barred and dismissed the suit. On appeal, the learned Assistant Judge, who heard the appeal, set aside the decree and framed issues, leaving it open to the Court of first instance to frame other issues and remanded the case. The learned Assistant Judge did not record any finding on merits. He, however, indicated his doubt as to whether in the light of the observations of the Privy Council in Madhavrao's case, the decision in Radhabai's case should be followed.

On remand, Mr. Patil, the Subordinate Judge who heard the case, supposed that the order of the Assistant Judge involved a finding that the decision in Radhabai's case was not applicable to this case and held that the suit was not barred by time and allowed the suit. Defendant No. 2 appealed. The learned District Judge held that the present case was fully covered by the ruling in Radhabai's case which is still good law and threw out the claim as time-barred. Plaintiffs thereupon preferred this second appeal.

6. Mr. Koyajee for the appellants argued that a watandar has only a life interest in the watan which is incapable of being alienated beyond his natural life to a person who is not a watandar of the same watan, that the rights of the successors to the watan come into existence at every fresh succession, that the title of a stranger as against each fresh successor may be validated by adverse possession of 12 years as against the then holder, but that the very nature of the estate prevents the bar of adverse possession against one holder from operating as a bar against his successor, whose rights spring into existence on the death of the previous holder. Mr. Koyajee further contended that Radhabai's case was no longer good law, having regard to the observations of their Lordships of the Privy Council in the case of Madhavrao Waman Saundalgekar referred to above.

7. The point raised is of considerable importance. To decide the contention raised by Mr. Koyajee, it is first necessary to consider the relevant facts in Radhabai's case. In that case, the plaintiff sued for the recovery of certain lands from the defendants on the ground that they were the service watan property of the plaintiff's family. The defendants claimed to be in possession of the lands under a grant to them by the plaintiff's grandfather in 1838. The plaintiff denied that any such grant was made and contended that even if it was, his grandfather had no authority to make a grant of the family watan beyond his lifetime, which terminated in 1860, and that his (plaintiff's) father had no authority to allow the lands to continue in defendants' possession. Plaintiff dated his cause of action in the month of February 1876 when his father died. Plaintiff's father had brought a suit in 1860-1861 in the Mamlatdar's Court to oust the first defendants' father from the suit-lands but had failed both in the Court of the Mamlatdar and in that of the Collector. Thereafter he had instituted a civil suit for the recovery of the lands but had failed on the ground that the suit was barred by the law of limitation. The decree was confirmed on appeal. On these facts so far as the point of limitation went, the Full Bench held that in the absence of fraud and collusion, adverse possession for twelve years during the lifetime of one holder of service watan lands is a bar to succeeding holders and the suit was held as time-barred. Mr. Justice West regarded the succeeding holder as taking as heir of his predecessor and although Sir Charles Sargent arrived at his conclusion by a different process of reasoning, the learned Chief Justice considered that the succeeding holder was barred because the predecessor fully represented the watan.

The same point arose in a subsequent case. In Rama v. Shamrao, the plaintiffs sued in 1900 to recover possession of watan lands from the defendants. Plaintiffs' grandfather Ramchandra had alienated the lands in 1871 and died in 1876 and was succeeded by his son Ganesh, who died in 1883, leaving the plaintiffs, his sons, as his heirs. The defendants contended that the suit was time-barred. Sir Lawrence Jenkins C.J held that the mere fact that Ganesh was not out of possession for the full period of 12 years did not distinguish the case from the principle involved in Radhabai v. Anantrav Bhagvant Deshpande, and that the time during which adverse possession ran against him must be taken into account with the result that there was no stopping of that time by reason of the minority of the plaintiffs. It was contended for the plaintiffs that the property being watan property, the interests of the several holders were a succession of life or limited estates. But Sir Lawrence Jenkins observed (p. 137):—

“The view that a succeeding watandar claims under his predecessor, appears to us to receive support from what was said by Lord Davey in delivering the judgment of the Privy Council in Padapa v. Swamirao.”

8. In the aforesaid case of Padapa v. Swamirao, the facts were as follows: one Bhujangrao, a watandar died in 1847. He left two widows by name Kalova and Ramova. Ramova was the junior widow and she was the mother of the plaintiff in the suit. Plaintiff was born after his father's death on September 15, 1848. Before his birth, the Revenue Authorities had placed the estate under sequestration and it so remained until on the petition of Kalova, her right to the watan estate was confirmed and the estate was made over to her in 1865. On September 15, 1865, Kalova executed a mortgage of two villages, a part of watan property, in favour of one Shrinivas. Plaintiff was a minor at the date of the mortgage. Litigation ensued between Kalova and Shrinivas with the result that on August 31, 1875, Shrinivas was placed in possession of the property and he was in possession at Kalova's death which took place in November 1877. On August 16, 1887, plaintiff sued the sons of Shrinivas for a declaration that the village in suit being in the nature of watan property the mortgage was not binding after the death of Kalova and asked for possession. One of the defences raised for the defendants to the suit was that Kalova's possession and their own possession under a title derived from her had been adverse and so the suit was barred by limitation. The High Court held that the property was watan and prima facie the plaintiff (if successor to Kalova) was entitled to recover the lands free from any mortgage executed by his predecessor but held that Kalova was not the incumbent of the watan and the plaintiff was not her successor as watandar. The High Court also held that he was the watandar from the date of his birth and Kalova was a trespasser and that his title to recover the lands free from any incumbrances on the ground that he was the watandar had been lost by limitation. The High Court observed that the plaintiff was the heir of Kalova but in that character his only right was to redeem Kalova's mortgage. Their Lordships of the Privy Council held that Kalova held the watan as watandar and consequently she could not make any alienation which would be void against her own heir. In the end it was held that as there was nothing to preclude the plaintiff from asserting his title as Kalova's heir, the mortgage was void and his claim to possession was decreed. The plaintiff, it will thus be seen, succeeded in getting property as the heir of Kalova, the previous watandar but the remarks in connection with his title as heir of Bhujangrao are very important. Their Lordships observed (p. 561): “It may be useful to recapitulate the material dates in the case. The appellant was born on September 15, 1848, and therefore, attained his majority on September 15, 1866. Kalova died in November, 1877. At her death, therefore, the appellant was not barred from asserting his original title as heir of Bhujangapa. But on September 15, 1878, it would seem that he became barred and his title as son and heir of Bhujangapa was extinguished.” These observations are consistent with the decision in Radhabai's case.

9. Whatever may be the limited power of a watandar to alienate watan property without the sanction of Government, it is clear from the observations of Sir Charles Sargent in Radhabai's case that the watandar for the time being represents the estate. It is also clear from the observations of Mr. Justice West in Radhabai's case and those of Sir Lawrence Jenkins in the case of Rama v. Shamrao that the succeeding watandar takes as heir of his predecessor, and, as observed by Sir Lawrence Jenkins in the latter case, the view that a succeeding watandar claims under his predecessor appears to receive support from the remarks of Lord Davey in the case of Padapa v. Swamirao. In Madhavrao Hariharrao v. Anusuyabai, a suit by a Saranjamdar of an ancestral hereditary Saranjam was held barred by res judicata owing to a previous decision between his predecessors and the predecessor-in-title of the defendant. The suit was also held as time-barred. The learned Chief Justice Sir Basil Scott observed (p. 612):—

“… for the purposes of section 11 of the Civil Procedure Code he [plaintiff] claims under the previous holder and is litigating under the same title as did the previous holder…That conclusion, arrived at upon the words of Saranjam rules, is in accordance with the conclusion of the Full Bench of this Court in Radhabai v. Anantrav Bhagvant Deshpande in the analogous case of watan estates. For, once it is established that the present Saranjam holder obtains recognition by reason of his title by inheritance, there is no distinction between the two cases: the general principle stated by West J. at p. 224 is that a mode of devolution prescribed in particular cases does not make the property subject to it exempt from the effects of a judgment against the person in whom at the time the estate is vested………The claim, therefore, for payment of assessment is barred by limitation for neither a special mode of devolution nor an incapacity for alienation will prevent limitation from operating against an estate.”

Heaton J. agreed with the view. It is important to note that unlike watan property, on the death of a Saranjamdar, the estate is formally resumed and re-granted to the successor. In Vaithialinga Mudaliar v. Srirangath Anni it was held that a Hindu widow represents the estate in suits brought by or against her for possession of that estate or any part of it and that she and the reversionary heirs of the estate are bound by any final decree of Court, duly and properly obtained, after fair trial and free from any collusion or fraud. This ruling was approved of in Jaggo Bai v. Utsav Lal. I, therefore, hold that there is no substance in the contention that the nature of a watan estate prevents the bar of adverse possession against one holder of a watan from operating as a bar against the succeeding watandar.

10. Considered thus, the authority of the decision in Radhabai's case remains unshaken and the principle laid down in the case has been uniformly accepted in the decisions mentioned above.

11. In Madhavrao v. Raghunath Venkatesh Deshpande, their Lordships of the Privy Council had occasion to consider the case of Radhabai v. Anantrav Bhagvant Deshpande. The case was one of a permanent tenancy created by one Venkatrao, grandfather of the plaintiff to the suit, in favour of the predecessor-in-title of the defendants to the suit, and on Venkatrao's death, which took place in 1864, his son Ramchandra had for some time accepted the stipulated rent from Appaji, the son of the original lessee. Ramchandra died on October 29, 1902, and his sons (the plaintiffs), who had declined to receive the rent, filed on October 22, 1914, a suit to recover possession of the lands. The trial Judge was of opinion that the plaintiffs' claim for possession was time-barred. On appeal the High Court decreed plaintiffs' claim for the following reasons (p. 261):—

“It appears to us, therefore, that the defendants cannot, on a review of the occurrences during the lifetime of the plaintiffs' father (Ramchandra), contend that there has been any continuous adverse possession for 12 year until the plaintiffs' father's death in 1902, which would entitle them to claim to occupy the land in suit as permanent tenants. It is not disputed that since 1902 the plaintiffs, declined to accept rent from the defendants, and that their suit has been filed within 12 years of their father's death.”

The persons claiming to be permanent tenants went in appeal to His Majesty in Council but failed. Their Lordships observed as follows (p. 261):—

“The appeal was heard by Sir Basil Scott C.J, and Hayward J. Those learned Judges stated that…. ‘The only question which really arises in this appeal is whether the defendants can claim to have established a right to a permanent tenancy by adverse possession.’ They held that adverse possession commenced to run on the death of Venkatrao, but they referred to the agreement of January 17, 1872….. they decided that it was impossible to hold that adverse possession in favour of the person claiming to be a permanent lessee continued to run after that agreement. If that decision were correct, as to which it is not necessary for their Lordships to express any opinion, Appaji and his son Waman were not holding adversely from January, 1872, until 1894. Those learned Judges also held, and their Lordships think rightly, that there had been two breaks in the alleged adverse possession within twelve years of the death of Venkatrao, but they do not base the advice which they will give to His Majesty upon that fact.”

Their Lordships then concluded that (p. 264:—

“In the present case the defence of 12 years' adverse possession as permanent tenants is set up by persons who, and their predecessors-in-title, always claimed to be and were tenants of service watan lands, and in the opinion of their Lordships neither the defendants nor their predecessors-in-title could have acquired any title to a permanent tenancy in the lands by adverse possession as against the watandars from whom they held the lands.”

In the course of the judgment their Lordships first distinguished the case from the case of Radhabai by remarking that the latter case was not one of an alienation by a lease of a permanent tenancy to a tenant of a watan but was a case of a sale and an absolute assignment to a stranger to the watan followed by possession for a period of twelve years after the death of the grantor, during which the stranger assignee was allowed by the successors of the watandar grantor to continue in undisturbed possession of the watan lands. It was observed in the judgment (p. 264):—

“A careful consideration of Sir Charles Sargent's judgment, as given [in Radhabai v. Anantrav] shows that he was considering the question referred to the Full Bench from the point of view of the grantee having been a stranger to the watan. It is not necessary for their Lordships to decide in this case whether the answer of the Full Bench, limited as it must have been to the case of a stranger to the watan, setting up as a defence, 12 years' adverse possession, was or was not correct, although they are constrained to say that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for 12 years of lands, the alienation of which was, in the interests of the State, prohibited.”

This decision was followed in the case of Vishnu v. Tukaram, where it was held that even if a permanent tenant can acquire a right of fixity of rent as against the immediate holder of the watan by adverse possession, it will not prevail against the next holder.

12. It is thus clear that in Madhavrao's case their Lordships of the Privy Council were considering a case of a permanent tenancy created in favour of a tenant of the watan and distinguished Radhabai's case on the ground that it related to the case of a sale to a stranger, so that so far as the case of an alienation to a stranger goes, the authority of the case of Radhabai has not been shaken, except so far as it may be affected by the observations in the paragraph cited above. With regard to these observations, it must be said with respect that so far as the interest of the State is concerned, the Hereditary Offices Act contains adequate provision (Vide sections 9, 10, 11, 11A and 12(a) of the Act) and it has been held that the State can intervene at any time without being affected by the question of limitation. Vide Chandra Naik v. Bahinabai. It may be noted that, so far as the present case goes, the fact of the alienation was known to Revenue Authorities who had decided to allow the alienation to stand.

13. The above decisions will make the following points clear:—

(a) That the decision of the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande relates to the case of a permanent tenancy of watan lands created in favour of a person who was the tenant of the lands at the date of the lease.

(b) That the alienation in Radhabai's case was an absolute one and in favour of a stranger.

(c) That it has been uniformly held by the High Court of Bombay that a succeeding watandar claims under his predecessor and the observations of their Lordships of the Privy Council in Padapa's case, quoted towards the end of paragraph 8 of this judgment, also bear out the same view.

(d) That in case the State is inclined to intervene to set aside an unauthorised alienation, the State can do so irrespective of the law of limitation for suit.

If so, we are bound by the decision in Radhabai's case, which is not overruled by the Privy Council in Madhavrao v. Raghunath Venkatesh Deshpande.

14. Mr. Coyajee referred to the Privy Council decision in Vidya Varuthi Thirtha v. Balusami Ayyar, in which it was held that the lessee from a Mahant cannot be said to hold adversely until after the death of the Mahant who granted the lease and that if the Mahant's successor permits the lessee to continue in possession and receives the rent during his lifetime, that can only be properly referable to a new tenancy created by himself and the lessee's possession does not become adverse until the successor's death. But the decision does not touch the point we have in the present case, for we know that in this case the plaintiff's father did not acquiesce in the sale. Moreover, the case of Vidya Varuthi Thirtha v. Balusami Ayyar related to an alienation of the nature of a permanent tenancy. It may be noted that it has been held that if the grant of a permanent lease by a Mahant has been affirmed by a judgment, the judgment will operate as res judicata and the succeeding Mahant will be bound by it: Maharanee Shibessouree Debia v. Mothooranath Acharjoa and Prosunno Kumari Debya v. Golab Chand Baboo.

15. I am fully conscious of the responsibility attaching to us to observe the injunction laid upon the Courts in India by their Lordships' remarks in Mata Prasad v. Nageshar Sahai, against questioning any principle enunciated by the Board, but their Lordships' observations in the case concede to the Courts in India the right to examine the facts of a case to see how far the principle on which stress is laid applies to the facts of the particular case. On a careful consideration of the facts in the present case and of the observations of their Lordships in the case of Madhavrao v. Raghunath Venkatesh Deshpande, I respectfully agree with the view of the Full Bench in Radhabai's case.

16. I agree with my learned brother in dismissing the appeal with costs.

Decree confirmed.

B.G.R