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  • Madgavkar
  • Murphy, JJ.
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  • Murphy, JJ.
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Smart Summary

Summary of Opinion — Madgavkar, J.

Factual and Procedural Background

This appeal concerned whether the defendant-respondent was a permanent tenant or merely an annual tenant of land owned by the plaintiffs-appellants. At trial the plaintiffs-appellants succeeded; the District Court favoured the respondent-defendant. The plaintiffs' earlier appeal was summarily dismissed by this Court and the present appeal was brought under the Letters Patent.

The factual history, as set out in the opinion, includes allegations by the appellants that original title vested in the respondent's ancestors who purportedly made a gift (document Exhibit 80, dated circa 1798) to the ancestors of the appellants' vendors (Brahmin priests). The respondent disputed the genuineness of that document and relied upon a rent-note (Exhibit 42) and continuance of cultivation by the respondent's family. From 1826 the appellants' predecessors' ownership was not contested; cultivation, however, had been by the respondent's ancestors. A sanad of 1877 shows the holder as an ancestor of the appellants' vendors. In 1907 records (Record-of-Rights, Ex. 64) show the khatedar in one column and the cultivator (Khoda Natha) in another; Khoda Natha's affiliation was disputed. In 1923 the Brahmins sold the land to the appellants (sale-deed Ex. 60). The two lower courts disagreed on the genuineness of the two key documents (Exs. 80 and 42) and on whether the respondent was a permanent tenant.

Legal Issues Presented

  1. Whether the defendant-respondent was a permanent tenant or merely an annual tenant of the plaintiffs-appellants' land.
  2. Whether the two documents central to title and tenancy — Exhibit 80 (alleged deed of gift, c.1798) and Exhibit 42 (rent-note, 1907) — are genuine.
  3. The applicability of Section 90 of the Evidence Act (presumption as to execution/signature of ancient documents) in respect of Exhibit 80 and Exhibit 42.
  4. Whether the presumption in Clause 2, Section 83 of the Bombay Land Revenue Code (presumption of permanent tenancy where tenancy is of long standing) applies to the respondent.
  5. Whether, if the respondent is held to be a permanent tenant, the landlord (appellants) has proved a right to enhance rent (onus of proof for enhancement in a permanent tenancy).

Arguments of the Parties

Appellants' Arguments

  • The appellants alleged that the original title vested in the respondent's ancestors who made a spiritual gift of the land (Exhibit 80) to the ancestors of the appellants' vendors (Brahmin priests); Exhibit 80 purported to date from 1798 A.D.
  • From the appellants' account, their vendors lived in a village some miles away and left management to the respondent; their vendors entrusted the papers to a deceased police-patil whose widow could not produce them, except that Exhibit 80 remained in the vendors' possession and was handed over to the appellants after the 1923 sale (Ex. 60).
  • The appellants pointed to ownership entries (sanad, Record-of-Rights) showing their predecessors as owners and offered limited evidence of past rent (one witness stated Rs. 30 paid in one year).

Respondent's Arguments

  • The respondent challenged the genuineness of Exhibit 80 and produced a rent-note (Exhibit 42) for 1907 to support the claim of tenancy.
  • The respondent adduced evidence that Khoda Natha, the actual cultivator, was a tenant of the respondent (Khoda Natha himself so testified), and produced a similar rent-note for 1908 (Ex. 43) corroborating the rent-note evidence.
  • The respondent relied on long, uninterrupted possession and cultivation by his family to claim the presumption of permanent tenancy under Clause 2, Section 83 of the Bombay Land Revenue Code.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dhanna Mal v. Moti Sagar That the question of permanent tenancy is a legal inference from facts and is open to consideration in a second appeal. Cited to support that the permanent-tenancy issue is reviewable on a second appeal because it involves legal inference from facts.
Ram Ranchod v. Abdul Rahim Same proposition as above regarding reviewability of permanent-tenancy question on second appeal. Cited alongside Dhanna Mal to the same effect.
Chikko (Chiko) v. Shidnath Interpreted (as used by the trial court) that the presumption of permanent tenancy under Clause 2, Section 83 of the Bombay Land Revenue Code was not open to the respondent in that case. Noted as authority relied on by the trial court; the opinion contrasts the trial court's reliance on this view with the appellate court's differing conclusion in the present matter.
Uggrakant Choivdhry v. Hurro Chunder Shickdar Warning as to caution in making presumptions under Section 90 of the Evidence Act regarding ancient documents — the court may but is not bound to make such a presumption solely because of age. Used to frame the approach to Exhibit 80: the court must examine internal and external evidence rather than rely solely on alleged age.
Govinda Hazra v. Protap Narain Mukhopadhya Set out reasons in favour of making presumptions of genuineness when small doubt exists and proving execution of ancient documents is difficult. Balanced against Uggrakant — informed the court's weighing of difficulties in proving ancient documents and when presumptions might properly be made.
Shafiqunnissa v. Shaban Ali Khan (Privy Council) Established that for documents over 30 years old whose genuineness is disputed, courts must consider internal and external evidence before presuming proper signature/execution. Guided the court to examine Exhibit 80 and Exhibit 42 for internal/external indicia rather than automatically presuming execution because of age.
Maneklal v. Bai Amba Support for the presumption under Clause 2, Section 83 of the Bombay Land Revenue Code where a tenant had long occupation without disturbance. Applied to conclude that the respondent, given the long period of tenancy and absence of disturbance, was entitled to the presumption of permanent tenancy.
Narayan v. Pandurang Discussed the meaning of “commencement” in Clause 2 (Section 83) — whether it is a definite point in time or can be an extended/approximate period; Fawcett, J. elaborated the difficulty. Referred to when analysing whether the landlord proving a commencement at a definite date can defeat the presumption of permanence; used to explain the interpretative difficulty.
Hari Vasudeo Atre v. Takaram Held that tenancy's coming into existence since the beginning of the landlord's tenure does not prevent application of S. 83 where antiquity of tenancy precludes satisfactory evidence of its commencement. Cited to support the proposition that very long, undisturbed occupation may justify presumption of permanent tenancy despite landlord's title predating it.
Ramchandra Narayan Mantri v. Anant Held that the tenant was entitled to the benefit of Section 83 in a case of long occupation. Referred to as an example of a tenant benefiting from S. 83 where antiquity supported presumption of permanence.
Sidhanath v. Chiko Explained or qualified earlier decisions; Macleod, C.J. sitting singly indicated different results where tenancy commencement was shown. Used to demonstrate divergence in authorities where tenancy commencement could be pinned to a specific year (e.g., 1905) and thus affect the presumption.
Ramchandra v. Dattu Another decision illustrating the judicial difficulty and differing views about when proof of commencement defeats the presumption under Section 83. Cited alongside Narayan v. Pandurang to show conflicting judicial approaches on the “commencement” issue.
Giriappa v. Govindrao Held that in the case of a permanent tenancy, the onus is on the landlord to prove any right to enhance rent by agreement, usage or otherwise. Applied to conclude that, even if the respondent was a permanent tenant, the appellants had not proved any right to enhance rent; supported dismissal of appellants' claim to enhanced rent.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal and factual inquiries, closely following the material before it:

  1. Characterisation of the central issue: The court framed the primary question as whether the defendant was a permanent tenant or an annual tenant. It noted that while this is a factual determination, it is a legal inference from facts and thus amenable to review in a second appeal.
  2. Examination of documentary evidence: The court identified two documents as central — Exhibit 80 (alleged deed of gift, c.1798) and Exhibit 42 (rent-note, 1907) — and concluded that resolving their genuineness was necessary at the outset because the outcome on tenancy depended heavily on them.
  3. Application of Section 90 Evidence Act principles: The court applied established authorities (including Uggrakant, Govinda Hazra and the Privy Council in Shafiqunnissa) to explain that for documents older than 30 years the court must consider both internal and external evidence before presuming execution; caution is required and presumptions should not be mechanically applied solely because of alleged age.
  4. Assessment of Exhibit 80 (alleged ancient deed): The court noted several factors undermining its genuineness as presented by the appellants — no references to Ex. 80 in village registers, sanad, Record-of-Rights or in the 1923 sale-deed; inconsistency in place-name used in Ex. 80 ('Bhadiu') versus consistent usage of 'Eayanvalu' in other records; the document's unusually good state of preservation compared with Exhibit 42 (1907). On balance, the court agreed with the lower appellate court that considerable doubt existed as to Ex. 80's genuineness.
  5. Assessment of Exhibit 42 (1907 rent-note): The court found Exhibit 42 to be supported by oral testimony — Khoda Natha (the cultivator), one attesting witness and the respondent — and noted corroboration by a similar 1908 rent-note (Ex. 43). The court observed that the discrepancy in dates between Ex. 42 and the Record-of-Rights was insufficient to discredit Ex. 42 when weighed against the testimonial and documentary context. The court therefore held Ex. 42 to be genuine and sided with the lower appellate court on this point.
  6. Consequences of documentary findings: Given that Exhibit 80 was not proved genuine, the appellants could not establish the asserted origin or commencement of their title that would defeat the presumption of permanence for the respondent. The court emphasised the long period (nearly a century) of the respondent's tenancy before suit, the absence of satisfactory evidence of when the tenancy commenced, the lack of attempts by successive owners to eject the respondent or enhance rent, and that the claim for enhancement was made only after a sale to new owners. These facts supported application of the presumption under Clause 2, Section 83 of the Bombay Land Revenue Code in favour of the respondent (citing Maneklal v. Bai Amba and related authorities).
  7. Discussion of alternative view (if Exhibit 80 were genuine): The court explained that even if Exhibit 80 were genuine, it would not necessarily follow that the respondent's tenancy dated from 1798; the relation between landlord's title commencement and tenancy commencement is legally complex (citing Narayan v. Pandurang and other cases). The court therefore abstained from deciding a definitive rule on the construction of Section 83 where unnecessary.
  8. Right to enhance rent: On the question of enhancement when a permanent tenancy is held, the court applied Giriappa v. Govindrao to state that the burden is on the landlord to prove a right to enhance the rent by agreement, usage or otherwise. Here, no such right was proved by the appellants.
  9. Final application: Because Exhibit 42 was genuine, Exhibit 80 was doubtful and because of the long, undisturbed occupation with no evidence of commencement or of any right to enhance rent, the court upheld the lower appellate court's conclusion that the respondent was a permanent tenant and that the appellants' claim for enhanced rent failed.

Holding and Implications

APPEAL DISMISSED.

The court confirmed the decree of the lower appellate Court with costs. Concretely, this affirms the appellate court's determination that the respondent was a permanent tenant and that no right to enhance rent on the part of the appellants was proved. The appellate court had held the respondents to be permanent tenants and liable to pay the nominal rent stated (the opinion records the appellate court's figure as Rs. 2 Babashahi, i.e., Rs. 1/8, as the rental amount determined by that court).

The opinion does not purport to lay down a new, definitive rule on the precise meaning of “commencement” under Clause 2, Section 83 of the Bombay Land Revenue Code where conflicting authorities exist; the court declined to express a final view on that interpretive difficulty because it was unnecessary for the decision in this case.

Disposition: Appeal dismissed; decree of the lower appellate Court confirmed with costs.

Show full summary ...

    Mansukh Panachand Shah v. Trikambhai Ichhabhai Patel

    Madgavkar, J.:— The question in this appeal was, whether the defendant-respondent was a permanent or merely an annual tenant of the plaintiffs-appellants. The trial Court held in favour of the plaintiffs-appellants and the District Court in favour of the respondent-defendant. The plaintiffs' appeal was summarily dismissed by this Court and the present appeal is under the Letters Patent.

    2. The question of permanent tenancy, though it is to be decided on facts, is a legal inference from facts and therefore a question of law, which it is open to consider in second appeal: Dhanna Mal v. Moti Sagar (1) and Ram Ranchod v. Abdul Rahim (2).

    3. The history of the land is as follows:

    It was alleged by the appellants, but not admitted by the respondent, that the original title to the land vested in the respondent's ancestors and that they made a gift of it for their spiritual benefit to the ancestors of the vendors of the appellants, who were Brahmin priests. The appellants set up such a document of gift Ex. 80, purporting to have been made in 1798 A.D The respondent challenged its genuineness. From 1826 onwards the title of the appellants' predecessors as owners is, however, not contested. The field in question was known as “Rayanwalloo” and is so shown in the village register. Though from 1825 onwards the ownership was that of the ancestor of the vendor of the appellants, the cultivation was with the ancestors of the defendant-respondent. In 1877 the Government issued a sanad in respect of this present inam land wherein the holder is shown as Icharam Ratneshwar, the ancestor of the vendor of the appellants.

    4. In 1907 before the agency of the Record-of-Rights was elaborated to its present extent, that record Ex. 64 shows in Col. 9 as the Khatedar Gor Hargovan Makan, the father of the vendor of the plaintiffs-appellants, and in Col. 12 the cultivator is shown as Yaland Khoda Natha, a witness in this case. It is common ground that in that year the land was actually cultivated by Khoda Natha, but each claims him as his own direct tenant. The respondent in support of his claim sets up a rent-note, Ex. 42, which bears, however, a date nearly a month later than the date of a rent-note as stated in the Record-of-Rights, Ex. 64. Khoda Natha states that he was a tenant of the respondents. In 1923, the Brahmins sold the land under a deed, Ex. 60, to the appellants. Apart from this question of whether in 1907 Khoda Natha was a tenant of the appellants' predecessor or the respondent, it is not seriously disputed that the respondent and his ancestors have throughout been holding this land as tenants under the appellants' predecessors.

    5. On the question of the genuineness of the two documents Exs. 80 and 42 the two lower Courts have differed. The trial Court held Ex. 80 to be genuine and Ex. 42 to be fabricated and the lower appellate Court held that Ex. 80 was fabricated and Ex. 42 genuine. The trial Court in holding its view in regard to these documents relied on the view of this Court in cases, such as Chikko v. Shidnath (3), held the presumption of permanent tenancy under Cl. 2, S. 83, Bombay Land Revenue Code, was not open to the respondent, and allowed the claim awarding Rs. 40 as rent for the two bighas of land in suit. The lower appellate Court held that Ex. 80 was not genuine and Ex. 42 was and that the presumption under Cl. 2, S. 83, applied and the respondents were permanent tenants, only liable to pay, as stated, Rs. 2 Babashahi, i.e, Rs. 1/8 to the plaintiffs-appellants. It is necessary, therefore, at the outset to consider the genuineness of these two documents, Exs. 80 and 42.

    6. The applicability of Section 90 of the Evidence Act, in regard to these documents and particularly in regard to Ex. 80 has been discussed. The law is laid down in cases such as Uggrakant Choivdhry v. Hurro Chunder Shickdar (4), regarding the caution to be exercised in making the presumption under Section 90 of the Evidence Act, which the Court may but is not bound to make, merely because of the alleged age of the document. The difficulty, on the other hand, of proving execution of ancient documents and the reasons in favour of such presumptions where small doubt exists as to their genuineness are set forth in cases such as Govinda Hazra v. Protap Narain Mukhopadhya (5). The law on the point has been-laid down by their Lordships of the Privy Council in Shafiqunnissa v. Shaban Ali Khan (6). In the case of documents more than 30 years old, the genuineness of which is disputed, it is necessary, therefore, for the Courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.

    7. It is the appellant's own case that their vendors who lived at a village about four miles away from the land left the management entirely to the respondent, who lived in that village and that they entrusted all the papers relating to the land in the custody of a deceased police-patil, whose widow was unable to place them in possession of any of these documents. The single exception to this, according to the appellants, was the document, Ex. 80, which was in their possession and which they made over to the appellants when about a year after the sale-deed Ex. 60, the appellants came and asked them for any documents relating to the land. This document Ex. 80 has nowhere been referred in any of the village registers, or in the sanad or the Record-of-Rights. There is no reference to it even in the sale-deed, Ex. 60 of 1923. There is thus no reference to it during the century between the alleged deed of gift and the sale-deed to the appellant, nor is it clear if the appellants' vendors had it, why it was not referred to in the sale-deed or made over to the appellants.

    8. Further, as the learned Assistant Judge has pointed out, the field in suit is referred to in Ex. 80 as “Bhadiu” perhaps meaning field where rice was cultivated. On the other hand, in all the other documents such as Exs. 40, 41, 46, 63 and 64, whether village register, sanad or Record-of-Rights from 1825 to 1907, the field is consistently referred to by the name of “Eayanvalu,” the name Bhadia occurring for the first time in the respondent's rent-note Ex. 42 of 1907 and being repeated in the appellant's sale-deed Ex. 60 of 1923. Without attempting to enter into a minute examination of the document itself, we are of opinion that on the face of it the document does not appear to be a document which is 100 years old. It is, in fact, in a far better state of preservation than the document Exhibit 42 of 1907 put forward by the respondent, which the trial Court was unable to accept as genuine. On the whole, therefore, we agree with the lower appellate Court that there is considerable doubt as to the genuineness of the document. Ex. 80.

    9. As regards the document, Ex. 42, its genuineness is supported by the evidence of the tenant Khoda Natha and one of the attesting witnesses besides the respondent himself. It is common ground that Khoda Natha was the person who actually cultivated the land. According to the appellants' own case the management was left to the respondent, and no reason is shown why in this particular year that management should have been taken out of the respondent's hands and Khoda Natha himself placed in possession as a tenant direct of the appellants' predecessors. The only difficulty with regard to Ex. 42 is the difference in its date as compared with the elate of the rent note in the Record-of-Rights, Ex. 64. That single circumstance is, in our opinion, insufficient as against the evidence adduced. On the whole, therefore, we agree with the lower appellate Court and not with the trial Court and hold that the document Ex. 42 is genuine. It is conceivable, particularly in 1937, when the Record-of-Rights entries were not exact, that the khata being admittedly with the appellants' predecessors and Khoda Natha being the person in actual cultivation of the lands, the fact that Khoda Natha held, not under the Khatedar, but under the respondent, escaped notice and was omitted from the Record-of-Rights. These conclusions are corroborated to a certain extent by Ex. 43, a similar rent-note for 1908 produced by the respondent.

    10. If Ex. 80 is not genuine, then the origin of the title of the appellants, much less the commencement of the respondent's tenancy is not proved. The respondent's tenancy is nearly a, hundred years old prior to the suit. There is no satisfactory evidence of its commencement and there is no such evidence of its intended duration. Moreover, as against the sum of Rs. 2 Babashahee rent set up by the respondent, no consistent rent on the other side was set up by the appellants, apart from the evidence of one witness that Rs. 30 was paid in one year. It is important to note that throughout this long period of a century no demand for enhancement and no attempt to eject the respondent or put in any other tenant was ever made. Such a claim is only made two years after the sale by the Brahmins to, the appellants Banias. On these grounds holding that Khoda Natha was a tenant of the respondent, the respondent is entitled to the presumption in the Cl. 2, S. 83, Bombay Land Revenue Code: Maneklal v. Bai Amba (7).

    11. But, even if on the view of the lower Court Ex. 80 is genuine, we are of opinion that Court was wrong in inferring that the respondent's tenancy also must have dated from 1798. That inference does not necessarily follow. In this view, strictly speaking, it is unnecessary for us to express an opinion as regards a certain difference of view on the construction of S. 83, Bombay Land Revenue Code. The question has been well stated by Fawcett, J., in Narayan v. Pandurang (8), and shortly put, is whether the word “commencement” in the Cl. 2 must be taken to mean a definite point of time or whether it can be extended to a longer period, which might even be twenty or thirty years, or whether if the landlord proves the commencement of his own title and the tenant admits holding as tenant of that landlord because the tenancy has necessarily commenced after the date of the landlord's title, that evidence suffices to defeat the presumption as to the permanent duration of the tenancy. It was held in Hari Vasudeo Atre v. Takaram (9) that the mere fact that the tenancy came into existence since the beginning of the landlord's tenure does not prevent the application of S. 83 of the Code in cases in which owing to the antiquity of the tenancy no satisfactory evidence of its commencement is forthcoming. That was a case of a grant in 1724 of an unoccupied land by a miraspatra, the tenant having been in actual cultivation for a period of ninety years. Similarly, the tenant was entitled to the benefit of S. 83 in Ramchandra Narayan Mantri v. Anant (10). Some doubt, however, was cast on the last case and it was explained by Macleod, C.J, sitting singly in Sidhanath v. Chiko (11) where however the tenancy was held to have commenced in the year 1905. In appeal it was held by Shah and Pratt, JJ., in Chiko v. Shidnath that the fact that the tenancy commenced after a definite date after the landlord's title began was sufficient to defeat the presumption under S. 83, a view not easy to reconcile with the earlier two judgments stated above. To the same effect is the judgment of Pratt and Fawcett, JJ., in Narayan v. Pandurang where the difficulty was elaborated by Fawcett, J., as also in Ramchandra v. Dattu (12).

    12. The question, no doubt, presents some difficulty and in our view that Ex. 80 is not proved to be genuine, it is not necessary for us to express a definite opinion. But, obviously the legislature intended to lay down a general rule in view of the existence of two sets of facts at the time of the enactment and to a large extent now. Permanent tenancy very often exists, particularly in Gujrat and Kathiawar, without a document. But on the other hand an annual tenant is often allowed to hold over without the original rent-note being renewed. To exclude the latter class of cases and to include the former, presumably S. 83(2) was enacted in its present form. It appears to us that where as in the case of Hari v. Tultaram the tenant has been in occupation for a period of nearly a century without disturbance or enhancement of rent, this presumption that he is a permanent tenant can hardly be defeated from the simple fact that the owner is able to produce his own title deed, which may be years before, as in that case. On the other hand, in the absence of documentary evidence, difficult to procure in the case of ancient tenancy, it is enough if the landlord proves that the tenancy, notwithstanding its long duration, commenced at a definite date, meaning thereby not the day, month and year, but at least an approximate period when it began and not merely large periods, such as twenty-five years or thirty years between which it began. Such an approximate point of commencement might be sufficient to defeat the presumption of a permanent tenancy which might otherwise be made.

    13. As regards the right to enhance rent, even where the respondent is held to be a permanent tenant, it was held by this Court in Giriappa v. Govindrao (13) that the case of a permanent tenancy the onus is on the landlord to prove a right to enhance by agreement, by usage or otherwise. No such right has been proved in the present case. The lower appellate-Court was, therefore, in our opinion, right. In the result, therefore, we dismiss the appeal and confirm the decree of the appellate Court with costs.

    V.S/R.K

    14. Appeal dismissed.

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    Mansukh Panachand Shah v. Trikambhai Ichhabhai Patel
    (Aug 9, 1929)