Divatia, J.:—
This appeal arises in a suit for a declaration that the suit property consisting of land with buildings thereon was of the absolute ownership of the plaintiffs and defendant No. 2, and for an injunction restraining defendant No. 1, the Government represented by the Secretary of State for India in Council, from taking Vacant possession of the land after removal of the superstructures. An alternative relief was also prayed that if it be held that the plaintiffs and defendant No. 2 were in possession of the land under a lease of ninety-nine years, the Government should fix a reasonable amount for rent after the expiry of the lease but not take forcible possession of the same.
The land in suit is situated in a prominent locality in, the city of Ahmedabad. Its present survey number is 4663 corresponding to old city survey Nos. 123 and 235 of L. Tikka No. 3 in the Raikhad ward of Ahmedabad city. Its area is 642 square yards. The plaintiffs' case in substance was that this land was taken possession of by their ancestor Jethabhai, who was the head of the family, since the time of the Company's Government more than seventy-five years before the date of the suit, that he erected buildings thereon, and their family had remained in continuous possession and enjoyment of the same. It is stated that the land was open fallow land, that it was not of anyone's ownership or in anyone's possession, that therefore, Jethabhai took it into his possession more than seventy-five years ago and having built houses thereon made it habitable, that the possession of the land and the buildings remained with the family, and that the buildings were let to several persons from time to time. The Government, however, contended some time before the present suit was filed that the land was not of the absolute ownership of the plaintiffs but that it was granted to two persons on a lease for ninety-nine years which lease had expired by the end of March, 1930. A notice was given to remove the buildings erected on the land and to put the Government in vacant possession thereof. The plaintiffs had, therefore, to file the present suit after giving notice under s. 80 of the Civil Procedure Code. The plaint then proceeds to state that as the land was of their private ownership, any lease which might have been given to any persons by the Government was not binding on them, that in any case the plaintiffs were in, adverse possession of the land for the full period, i.e, of sixty years as against the Government, and their title to the land had, therefore, become complete. For the alternative relief it was alleged that if it be held that the land was granted by the Government on lease for ninety-nine years, the Government were not even then entitled to legal possession of the property, and that the plaintiffs were entitled to remain on the land on payment of a reasonable amount as rent. It was lastly stated that even if the land was given on lease to two Parsi gentlemen, viz., Fardunji Santokji and Fardunji Nawroji, in the year 1831 as stated in the notice, still the plaintiffs came into possession of the land in their own right and that they had acquired title by adverse possession against whoever the real owner was. The cause of action was stated to have arisen at the time when the plaintiffs were alleged to be leaseholders by the Government in the year 1931.
In the written-statement, defendant No. 1 contended that the suit was barred under s. 80 of the Civil Procedure Code, and it was also barred under s. II of the Revenue Jurisdiction Act as well as under arts. 14 and 120 of the Indian Limitation Act. On the merits it was pleaded that the suit land was of the ownership of the Government and it was leased in the year 1831 for a period of ninety-nine years. The Government denied that the plaintiffs' ancestors acquired the suit property seventy-five years ago or at any time, that the period of ninety-nine years for which the land was leased having expired in March, 1930, the Government are entitled to take possession of the land, and that as the plaintiffs, came on the land which was given on lease in the year 1831, the lease is binding on them. It is further contended that there was a City Survey Enquiry in 1953, and it was there held that the land was of a leasehold tenure for ninety-nine years, that the plaintiffs had no right to compel the Government to renew the lease and they were, therefore, bound to vacate it as the Government did not desire to renew it. It was lastly contended that the plaintiffs had not paid the proper court-fees and they were not, therefore, entitled to the reliefs claimed.
Defendant No. 2 is a member of the same family as the plaintiffs and he supports the plaintiffs' case. I will, therefore, include him in the category of the plaintiffs and henceforth describe the Government as the defendant in the case.
On these pleadings the learned trial Judge framed several issues. Issues Nos. 1, 2 and 3 were preliminary issues under s. 80 of the Civil Procedure Code as well as s. 11 of the Revenue Jurisdiction Act and arts. 14 and 120 of the Indian Limitation Act. Issues Nos. 4 and 5 dealt with the merits of the case. They were whether the plaintiffs had proved their alleged ownership of the suit land either by title or by adverse possession, and whether the suit land was held from Government under a lease for ninety-nine years, whether the lease had expired and whether the lease was or was not binding on the plaintiffs. The findings on these issues were that the notice given by the plaintiffs under s. 80 of the Civil Procedure Code was proper and sufficient and the suit was not barred under that section. It was also not barred under s. 11 of the Revenue Jurisdiction Act as well as under the Indian Limitation Act. On the merits, the learned Judge's findings are that the plaintiffs' title was not proved, but their long possession otherwise than under the alleged lease was proved. The finding on the lease was that there was no lease as alleged by the Government, nor any lease whatever in regard to the suit land, that the plaintiffs were in possession independently of any lease, and that being so, the other parts of the fifth issue did not arise. The sixth issue was whether the plaintiffs had the right to compel the Government to renew the lease or to sell the occupancy rights to them for such price as may be fixed by the Court. The learned Judge did not make any finding on that issue as in his opinion it did not survive in view of the findings on the fourth and the fifth issues. There was an issue with regard to the court-fees, and the learned Judge held that no additional court-fees were necessary for the alternative relief. He held that defendant No. 2 was a necessary party, and that the plaintiffs werg entitled to the reliefs awarded in the order. The reliefs given by the learned Judge were a declaration in favour of the plaintiffs that they were not the lessees of the suit land as alleged by the Government and that they were entitled to continue in possession and enjoyment of it without being liable to make any payment in regard to it either as rent or otherwise, and an injunction that the Government were permanently restrained from dispossessing the plaintiffs of the suit land or from interfering with or obstructing in any manner whatever their possession and enjoyment of the same.
It is necessary to note here that although there was an issue about adverse possession, the learned Judge has not made any finding on that issue and has not held that the plaintiffs had acquired title by adverse possession. He has, however, given relief to them on account of their long possession of the land relying on the presumption arising under s. 110 of the Indian Evidence Act, and it is for this reason that the decretal order does not give the relief of absolute ownership which the plaintiffs claimed in their plaint, but it is restricted to a declaration that the plaintiffs were entitled to continue in possession and enjoyment of the land without the liability to make any payment. The plaintiffs have not filed cross-objections or appeal on the ground that the relief of a declaration about their absolute ownership of the land should have been granted to them, or that the lower Court ought to have held that they had acquired title by adverse possession.
It will appear that the dispute in this case relates only to the land and not to the buildings. It is the case of the Government that the land was given on lease free of rent and that the lessees were entitled to erect buildings thereon. It is conceded by the Government that the plaintiffs' ancestors have built superstructures on the suit land and that the notice was given to recover vacant possession of the land after removal of the superstructures.
I may first deal with the question of the plaintiffs' title to the land. The learned Judge has come to the conclusion both on the admission made by the plaintiffs in their plaint as well as on the evidence that they have not succeeded in proving their title to the land. Their own allegation in the plaint is that at the time when their ancestor Jethabhai took possession of the land, it was not of anybody's ownership. It is not alleged that the land was acquired by a grant from the Government or by sale from any person. It was sought to be made out during the course of evidence that there might have been some title-deeds of the land in possession of their ancestors, and the suggestion was that those title-deeds have been destroyed in the fire which took place in their residential house in another part of the city. The learned Judge has not believed that story. Even assuming that there might have been a fire in their house, he has held that it was not proved that there were any title-deeds relating to this land in the possession of the plaintiffs' family or that they had been lost of destroyed in the alleged fire. The learned Judge was, in my opinion, right in coming to the conclusion which he has done about the alleged title of the plaintiffs. They seem to have been conscious of this prominent defect in their case, and have, therefore, not even alleged their original title in the plaint, much less have they succeeded in leading satisfactory evidence to prove that they obtained the land either by a grant from the Government or by private purchase. It is clear, therefore, that the plaintiffs have not succeeded in proving their title.
The plaintiffs' case, however, mainly rests upon their long possession, at least from 1870 onwards, there being in that year a document (exhibit 96) relating to the house, of a neighbour in which it is stated, while describing its boundaries, that on the west there was the side wall of the bungalow of Jethabhai. Their contention is that having regard to the long period during which the plaintiffs were in possession of the land with its superstructures which they had built on it, it must be presumed that the land must be of their ownership. The learned Judge has rightly refused to make the presumption of absolute ownership based on title from their long possession, and he has confined the relief only to the plaintiffs' right to remain in possession although their title had not been proved. For that he relies upon s. 110 of the Indian Evidence Act, to which point I shall come later on. The defendant's case was that this land, along with other lands in the same locality, belongs to the Government, that most of those lands were unoccupied at that time, and in order to encourage the development of this prominent site, situated near the main citadel called Bhadra in the city of Ahmedabad, the Collector gave the lands in this area on leases for different periods, that the suit land had been given on lease in the year 1831 to two persons, Fardunji Santokji and Fardunji Nowroji, that it was given rent-free and that although superstructures were allowed to be constructed on the same, the land was resumable at the end of that period. The case of the Government further was that two copies of the leases were made, one copy was given to the lessees and the other copy was kept in the Government record, that a book was maintained containing copies of leases granted to various persons from time to time, and a Patta Register, i.e, a register containing a general description of all leasehold lands including the names of the persons to whom they were leased, the description of the person and the time when the lease were to expire, was also maintained in the Government record. From the leases and the other papers a general index of all the lands situated in the different wards of the city was prepared in the year 1882, and several printed copies of that Index Register had been made. In the year 1919 the office of the Collector as well as the office of the city survey were completely burnt by the mob in the riot which took place in the city of Ahmedabad, and in that fire the original leases as well as the Patta Register, the Enquiry Register and the other records had been completely destroyed. However, several other papers escaped from the fire either because they were at that time produced in the Civil Courts or they were kept in the bungalow of the Collector or in the Commissioner's office or in the Land Records Office, and by means of the available record which has remained after the fife the Government have sought to prove that the land was given on lease to the two Parsis mentioned in the General Index Register and that somehow or other plaintiffs came on the land after it was granted to these two persons. There was an original survey of the Ahmedabad city which was begun first in 1864 and these survey proceedings lasted up to 1881. During that period a number of survey records containing the Survey Register, survey maps, the Patta Register and a number of other records relating to the survey settlement of land in the city were maintained, and thereafter on account of the original record having been destroyed by fire in 1919, a fresh survey was begun in 1921 which was completed in 1923. In that City Survey Enquiry along with other lands, an enquiry was made with regard to the suit land, and the Enquiry Officer decided, after hearing plaintiff No. 3 who represented the other members of the family, that it had been given lease which was to expire in the year 1930. That decision was not challenged by the plaintiffs although a notice of the decision had been communicated to plaintiff No. 3 and although he himself had obtained copies of the decision in 1924 and 1930. As a result of that enquiry, the Government gave him a sanad in 1930 confirming his occupation of the land up to March 31, 1930, on which date the lease was to expire. The sanad contained a condition that the Government were entitled to resume the land whenever they required it after giving him the value of the superstructures as might be determined by five persons. This sanad was accepted by plaintiff No. 3 without any protest and the original sanad in the Collector's record (exhibit 105) contains an endorsement in his handwriting about receipt of its copy. The sanad was valid only up to March 31, 1930, and thereafter the Government did not wish to continue the lease in the plaintiffs' favour. They gave a notice on October 3, 1931, for eviction of the plaintiffs from the land and for rent in the nature of damages from the period of the expiry of the lease up to the date of handing over its possession to the Government. The plaintiffs did not comply with the notice and filed the present suit on March 31, 1932, for the reliefs mentioned above.
On the first issue with regard to the notice under s. 80 of the Civil Procedure Code it is held that the suit is not defective, and I think the learned Judge was right in holding that the notice is not defective under that section. It is contended on behalf of the defendant that the notice, exhibit 29, must state the names, the description as well as the places of residence of the plaintiffs, but it does not give the description of the plaintiffs inasmuch as the surnames, the caste and the occupation of the plaintiffs are not given. Reliance is placed on the decision of their Lordships of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India, and it is urged that in that decision the provisions of s. 80 have been held to be mandatory and not admitting of any implications or exceptions. In that case no notice had been given at all, and it was held that a notice under s. 80 was required to be given even though the suit may be one for a speedy remedy by way of an injunction. In the present case, however, the notice has been given within the period required by the law, and it does purport to comply substantially with the provisions of that section. The only defect urged is that the descriptions have not been given. It is not stated in the section what kind of description ought to be given of the plaintiffs who desired to file a suit. It would, be sufficient if the plaintiffs are described in such a manner that they could be easily identified, and in the present case the father's names of all the proposed plaintiffs are given and their places of residence are given. The surnames are not given. But, in my opinion, the surname would not be a necessary part of the description of a person. No authority has been cited to us to show that the surname or the caste or the occupation of the proposed plaintiff must be mentioned in the notice, and I think that the notice substantially complies with the provisions of s. 80 of the Civil Procedure Code, and the suit, therefore, is not barred on that ground.
The next point relates to the applicability of s. II of the Bombay Revenue Jurisdiction Act. That section provides:—
“No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue-officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.”
The question is whether the notice, exhibit 28, given by the Collector is an act or omission of a revenue officer as stated in this section. The reference to the appeals which should be filed under the provisions of the law for the time being in force relates to the provisions of ss. 203 and 204 of the Land Revenue Code. Section 203 says that—
“In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act, or any other law for the time being in force, to that officer's immediate superior….”
If the notice, exhibit 28, given by the Government to the plaintiffs is a decision or order coming within this section, it is clear that the plaintiffs ought to have appealed against that decision or order, and if they did not so appeal, the suit would come within the provisions of s. 11 of the Revenue Jurisdiction Act. It is, therefore, to be seen whether the notice, exhibit 28, is a decision or order within the meaning of that expression in s. 203. That notice, which is given on October 3, 1931, begins by stating that the land was of the ownership of the Government, that it had been leased to the plaintiffs' predecessor in March, 1831, for a period of ninety-nine years which expired in March, 1930, that on the expiry of that period the Government were entitled to its vacant possession and that the plaintiffs were called upon to give such possession but under some pretext or another they had failed in doing so, that under those circumstances the formal notice was given to the plaintiffs, and they were called upon to give vacant possession of the land after removal of the superstructures within two months of the date of the receipt of the notice and to pay rent to Government at a certain rate from the date of the expiry of the lease up to the date of the handing over of the possession. It is lastly stated that if the plaintiffs failed to act as directed, the Government without any further notice would take such steps as might be necessary to take over the possession of the land and also to recover the amount of the rent from the plaintiffs.
Now, the lower Court says that this notice, exhibit 28, is not a decision or an order of the Government but that it is in the nature of a landlord's notice to a tenant holding over, and the remedy of the Government was, therefore, to file an ordinary suit for possession but not to issue a summary order of eviction as contemplated in the notice. The lower Court further says that there was no enquiry preceding the giving of the notice and that the notice does not purport to be given under s. 202 of the Land Revenue Code, and moreover, if the plaintiffs succeeded in proving title to the land, the notice would be ultra vires and invalid. The same argument has been urged before us by the learned counsel for the plaintiffs. According to him, this notice is not under s. 202 and cannot, therefore, amount to an order.
Now, s. 202 says that—
“Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be made in the following manner, viz.:—
by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land, and,
if such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same,…”
It is clear to my mind that Government can pass an order for eviction of a person who is wrongfully in possession of land by giving him the notice as prescribed in this section. That notice in fact amounts to a decision or order of the Government to evict the person who is in such wrongful possession. There is no provision in the Land Revenue Code that before the notice under s. 202 is given, the Government should actually pass an order and communicate that order to the party concerned before giving such notice. It is open to the Government to pass an order in the form of a notice, and as provided by this section to serve it on the party concerned, and if that is done, the Government must be deemed to have complied with the provisions of the Land Revenue Code. It is true that the notice, exhibit 28, does not mention that it is given under s. 202 of the Land Revenue Code, but, in my opinion, it is quite clear on its wording that it could not have been given under any other, provision of law except s. 202. The wording is very much similar to the provisions of that section. There is no doubt that the Government possess larger powers than those of a private landlord. A private landlord has no power to summarily evict a tenant who is holding over. The Government have, however, the power to do so under various sections of the Land Revenue Code, such as ss. 61, 66 and 79A of the Land Revenue Code, and at the termination of the period for which a particular land might have been granted by the Government to any person, it is open to the Government to give him a notice to vacate it on the expiry of the period, and if the holder still remains in possession after its expiry, he must be deemed to be holding the land in wrongful possession. That being so, the Government would be entitled to give a notice as required by s. 202 of the Land Revenue Code.
Section 61, under which the power of summary eviction can be enforced, says that—
“Any person who shall unauthorizedly enter upon occupation of any land set apart for any special purpose, or any unoccupied land which has not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled shall…
pay the assessment of the entire number for the whole period of his unauthorized occupation, and…
“The person unauthorizedly occupying any such land may be summarily evicted by the Collector, and any crop raised in the land shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture, or to summary removal.”
If, therefore, the plaintiffs had remained on this land after they had ceased to be entitled to do so under any of the provisions of this Act, then clearly the Government were entitled to adopt the remedy of summary eviction under this section.
The next question is whether the plaintiffs' right can be said to have ceased to exist at the time when this notice was given by the Government. According to the Government, the plaintiffs were occupying as lessees, and on the termination of the lease in March, 1930, their right to occupy the land had ceased to exist. It is provided in s. 68 of the Land Revenue Code that—
“An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land, in perpetuity … according to the provisions of this Act., and on the fulfilment of any other terms or conditions lawfully annexed to his tenure:”
Then there is an important proviso to this section which, runs as follows:—
“Provided that nothing in this or any other section shall make it, or shall be deemed ever to have made it, unlawful for the Collector at any time to grant, permission to any person to occupy any unalienated unoccupied land, for such period and on such conditions as he may, subject to rules made by the Provincial Government in this behalf, prescribe, and in any such case the occupancy shall, whether a survey settlement has been extended to the land or not, be held only for the period and subject to the conditions so prescribed.”
The combined effect of ss. 61, 68 and 202, therefore, is that the Government have the power before as well as after the enactment of the Land Revenue Code to grant lands to occupants on certain terms and conditions, that if a grant was made for a certain period, the Government would be entitled to resume the land at the expiration of that period, that any occupation of the land thereafter would be a wrongful occupation for which the holder would be liable to summary eviction, and if the Government decide to evict, such person they can do so by giving him a notice under s. 202. That notice, therefore, amounts to a decision or order of the Government to evict the person who is in occupation of the land after his right has ceased to exist. The notice is not, in my opinion, a mere communication to hand over possession, but it is a decision that the plaintiffs are bound to hand over possession of the land. It is expressly stated in the notice, exhibit 28, that no further order was contemplated, and the steps which were mentioned in the notice could not be anything else except summary eviction under s. 61. Such a notice is, as observed in Bhavanishankar Bhaishankar Vyas…Plaintiff v. Talukdari Settlement Officer…Defendant . the first act in the process of eviction. There is a decision of our Court bearing on this point in Bhikhabhai Doolabhjee v. Secretary of State for India. There the point was also under s. 11 of the Revenue Jurisdiction Act and a notice was given under s. 202. It was held that it amounted to an order, that it took the form of a notice under that section directing the plaintiff-appellant to vacate the land, and that, therefore, s. 11 of the Revenue Jurisdiction Act applied, and as no appeal was preferred, the suit was barred. In Dayal v. Secretary of State) there were two orders of the Collector. There was no appeal against the first order, and thereafter an intimation was given to the party in the form of a notice. It was held that the notice amounted to an order, and therefore, the suit was barred under s. 11 of the Revenue Jurisdiction Act. The plaintiffs rely upon a decision in Nathuram Hiraram v. The Secretary of State for India, but that decision does not apply to the facts of the present case. The notice of demand there for the amount due as land revenue was not regarded as an order or decision appealable under s. 203. The notice was not for eviction, and did not, therefore, purport to be under s. 202. Moreover, no order of the Collector was produced, no opportunity was given to the plaintiffs to put forward their case, and such notice was not regarded on the special facts of that case as appealable.
It is, however, urged on behalf of the plaintiffs on the authority of certain decisions that the order incorporated in this notice, exhibit 28, was invalid and ultra vires, and it was not, therefore, necessary to appeal against it. This argument is advanced by applying the analogy of the decisions under art. 14 of the Indian Limitation Act in which it is held that no suit was required to be brought to set aside an order which was illegal or ultra vires. There are various answers to this contention. If the lease relied upon by the Government is proved, there is no doubt that the order is not only intra vires but good on the merits. Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs' ancestor, the presumption under s. 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession, in the past, though without any rightful title in them,. Government had the right to assert their ownership which, had not been divested by the act of the plaintiffs' ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government. The giving of the notice, therefore, cannot be regarded as invalid or ultra vires
Even if the lease relied on by the Government could not be proved in a Court of law, the Government had definite materials in their possession from which they, might reasonably conclude that the plaintiffs had no right to occupy the land after March, 1931. It may at the most be an incorrect order liable to be set aside on appeal to the Commissioner. But it cannot be said that because it was incorrect, it was also invalid or illegal in law. The Collector has the jurisdiction to pass the order, and he had also prima facie grounds for doing so. This is not, therefore, a case where the order is vitiated by want of power, excess of jurisdiction or any other illegality. I am not convinced that the analogy of the authorities under art. 14 of the Indian Limitation Act could be applied to s. 11 of the Revenue Jurisdiction Act. The Limitation Act deals with the limitation of the period for bringing a suit. Section 11 refers to the bar to the institution of a suit if no appeals had been preferred to the higher revenue authorities. But even if the analogy does apply, those authorities are not applicable if the present order is neither invalid nor ultra vires. The principal authorities relied upon on behalf of the plaintiffs are Laxmanrao Madhavrao v. Shiriniwas Lingo, Anant Nulkar v. Secretary of State Rasulkhan v. The Secretary of State, Secretary of State v. Gulam Rusul Dhanji v. The Secretary of State,(5)) Surannanna v. Secretary of State for India,(6) and Secretary of State v. Faredoon.(7)) It is not necessary to deal with these cases individually. It is sufficient to observe that they are all cases either of want or excess of jurisdiction, absence of prima facie right of the Government, or proof of prima facie title of the plaintiff, or the order being either merely administrative or incomplete. In the present case even if the Government may be unable to prove their case of lease on the ground that the documents relied upon were not admissible in evidence, they afforded prima facie materials on which they were entitled to act. Those materials cannot be challenged as spurious or fabricated. Even if they be taken as negligently prepared, that would be a matter of proof, and would not affect the power of the Collector to act upon them. In my opinion, therefore, the decision or order in exhibit 28 required to be appealed against under s. 203 of the Land Revenue Code, and the non-prosecution of the appeals is a bar to the maintainability of the present suit under s. 11 of the Revenue Jurisdiction Act.
[His Lordship, after discussing the question about the lease, proceeded to deal with the question under s. 110 of the Indian Evidence Act.]
I now come to the particular point on which the learned Judge has decided this case and that is on the long possession of the plaintiff under s. 110 of the Indian Evidence Act. It is true that the plaintiffs' family has been in possession of the land since sometime before 1870 at the earliest. It may not be as owner but the two documents relating to a property in the neighbourhood on which the plaintiffs rely would show that they were in possession of this land. The evidence does not show how Jethabhai, the plaintiffs' ancestor, came in possession of the land after the lease was granted to the two Parsi gentlemen, but the plaintiffs' own case is that at the time when their ancestor took possession of the land it was of nobody's ownership and it was open and fallow land. On this admission it would follow, therefore, that the original lessees had quitted possession of this land, that it was lying fallow and that the plaintiffs' ancestor took possession of it, but that possession must not be deemed to be as owner when there is nothing to show that the Government had at any time recognized the possession of the plaintiffs' family as owner of this land. Mr. Thakor on behalf of the plaintiffs has contended that the alleged admission of the plaintiffs in paragraph 3 of the plaint that their ancestor took possession of the land which was of nobody's ownership when it was lying open and fallow cannot be taken as admission in view of the evidence which would show that the land must have been granted to the plaintiffs as absolute owners. Mr. Thakor had to contend that the admission of the plaintiffs in paragraph 3 ought to be ignored because it went against the plaintiffs. But the evidence to my mind, instead of establishing the private ownership of the plaintiffs' family, is corroborative of the admission in the plaint and points to the conclusion that the land originally did not belong to them, that it belonged to the Government at that time, that for some reason or other the original lessees had relinquished possession of the land and that the plaintiffs' ancestor had come into occupation of the same. The question is whether that possession is prima facie lawful possession, or wrongful possession. In my opinion, in absence of any evidence to show the nature of the alleged title of the plaintiffs and in view of the admission of the plaintiffs, it must be held that the plaintiffs' original possession was wrongful as the owner of the land. If that is so, would s. 110 of the Indian Evidence Act apply to long possession which begins from such wrongful occupation? Mr. Thakor has relied upon a large number of cases to show that if a person is in possession of a land for a very long time, there is a presumption in his favour under s. 110 of the Indian Evidence Act even as against the Government, and as a result of that presumption the burden of proof is shifted on to the other side to show that the plaintiffs were not the owners of the land or had no right to the same. If the Government's case of lease is proved by satisfactory evidence, as in my opinion it is, the presumption under s. 110 does not arise at all, because in that case the plaintiffs' possession must be deemed to be possession as a lessee and not in any other capacity. It is not suggested that the plaintiffs came into possession even before 1831 when the lease was granted. There is nothing in evidence to support that suggestion even if it was made. But even assuming for the sake of argument that the Government's case of lease is not proved, in my opinion, the original nature of the plaintiffs' occupation of this land is such that it could not entitle them to the presumption under s. 110. The principal cases relied upon by Mr. Thakor on this point are Ismail Ariff v. Mahomed Ghouse, Gangaram v. Secretary of State for India, Hanmantrav v. The Secretary of State for India, Pemraj Bhavaniram v. Narayan Shivaram Khisti, Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani,) The Secretary of State for India v. Kota Bapanamma Garu, Bhagwansing v. Secretary of State, and Krishna Aiyar v. The Secretary of State for India.(8) He has tried to distinguish the cases of Vasta v. Secretary of State for India(9) and Secretary of State for India v. Chellikani Rama Rao(10) It is not necessary, in my opinion, to discuss these cases separately. The effect of the principal decisions has been considered by this Court in a recent ruling in Suraji Fulaji v. Secretary of State,(11) and the principle as summarized by Broomfield J. is that the possession under s. 110 must be of such a character as would lead to a presumption of title, and it is on that ground that the decision in Hanmantrav v. Secretary of State for India is distinguished. It is necessary, in my opinion, therefore, for the plaintiffs to prove that their possession, was of such a character as would lead to the presumption of title, and not such a sort of possession as would be regarded as wrongful in its origin. In my opinion, it could not be the law that a man might usurp somebody else's land and without completing the period of adverse possession say that “I am in long possession of this land, I have erected buildings on it, and although I have no title in my favour and even though I have got possession of the land by usurpation or encroachment, I am entitled to remain in possession under s. 110 and that nobody can oust me”. The presumption under s. 110 would apply only if two conditions are satisfied, viz. that the possession of the plaintiff is not prima facie wrongful, and, secondly, the title of the defendant is not proved. In the present case it is not at all proved that the plaintiffs had prima facie evidence of title. Secondly, it is not at all shown that if the plaintiffs had no title, the Government also had no title. On the other hand, under s. 37 of the Land Revenue Code, Government are the owner of all lands which are not proved to be of the private ownership of any person. If this land at the time when the plaintiffs came into its occupation was not of the private ownership of any other person, the presumption is that it belonged to the Government. Therefore, in absence of proof by the plaintiffs that the land was of their ownership and in absence of proof that it was of anybody else's ownership apart from the plaintiffs, the only alternative is that the land must belong to the Government. In my opinion, therefore, both the conditions for the applicability of s. 110 of the Indian Evidence Act are absent in the present case with the result that section does not apply. Therefore, the plaintiffs are not entitled to the benefit of this section even though the Government may not succeed in proving that the land is of a leasehold tenure. The proprietary right of Government with regard to all waste lands which are not proved to be of the ownership of private individuals has been recognised in this Presidency from early times. The preamble of Bombay Regulation III of 1814 as interpreted in The Collector of Thana v. Dadabhai Bomanji and Baban Mayacha v. Nagu Shravucha, s. 7 of Bombay Regulation XVII of 1827, s. 11 of the City Survey Act (Bom. IV of 1868), and finally s. 37 of present Land Revenue Code, all these provisions embody this principle and create a presumption in favour of Government in the case of all lands which are not proved to be of private ownership. The recent decision of the Madras High Court in Pothukutchi Appa Rao v. Secretary of Stated is also based on the principle that s. 110 of the Indian Evidence Act does not apply where there is a statutory presumption in favour of Government. There could thus be three alternatives with regard to the ownership of the suit land at the time when the plaintiffs' ancestor took it into his possession, viz., (1) its acquisition by grant or title, (2) that the land was of the ownership of some other individuals, and (3) that it belonged to Government. As regards the first alternative, the plaintiffs have not even alleged that their ancestor acquired it by grant or purchase, and it is not also proved that their occupation of the land at its inception was based on such acquisition of title. The second alternative is also precluded because the plaintiffs' case is that the land was not of any one's ownership or possession at that time and that therefore their ancestor took it into his possession. There is nothing also on the evidence to show that it belonged to any one private proprietor. Therefore there remains only the third alternative that it was of the ownership of Government at that time. There is therefore no scope, in my opinion, for the application of the presumption under s. 110 of the Indian Evidence Act. It is this circumstance which distinguishes the present case from all decisions relied upon on behalf of the plaintiffs. It is on this presumption only that the learned Judge below has given a decree for the continuance of possession of the land in the plaintiffs' favour; but if the presumption could not be applied, the plaintiffs to my mind are not entitled to any relief, even though the Government's case of lease is not satisfactorily proved.
[After dealing with other points the judgment proceeded.]
As a result of these findings the plaintiffs are not entitled to any of the two reliefs prayed for. The learned Judge of the Court below has, as I have stated above, given the reliefs to the plaintiffs entirely on account of their long possession of the land. If the presumption under s. 110 of the Indian Evidence Act is displaced in the present case, even on the reasoning adopted by him the plaintiffs would not be entitled to any relief. But Government have in my opinion satisfactorily proved that the land was of a leasehold nature, that the plaintiffs occupied the land as lessees for a period of ninety-nine years which expired in March, 1930, and that Government were therefore entitled to resume possession of the land if they liked. The appeal is therefore allowed, the decree of the lower Court is set aside, and the plaintiffs' suit is dismissed with costs in this Court as well as in the lower Court.
C.R.A 260 of 1935: This is an application by Government against an order of the learned Judge in this case allowing the plaintiffs to amend their plaint by which the value of the relief was changed from Rs. 5,000 to 5,005. It is contended that the amendment was not necessary for determining the real question in controversy between the parties and therefore it did not come under O. VI, r. 17, of the Civil Procedure Code. It was however conceded by the Government Pleader that there is no authority to show that a valuation of a relief cannot be allowed to be amended under O. VI, r. 16. In my opinion the amendment of this relief does not change the nature of the suit at all, and it was within the competence of the lower Court to grant the amendment prayed for. The order is therefore confirmed and the rule is discharged with costs.
Macklin, J.:—I agree. My learned brother and I have discussed this case not only at its various hearings but at the conclusion of the arguments, and I am in complete agreement with what is stated in his judgment.
Appeal allowed.
Y.V.D