Judgement

Appeal (No. 89 of 1922) from a judgment and decree of the High Court (June 17, 1918) reversing a decree of the Subordinate Judge of Belgaum.

The suit was brought by the first three respondents against the appellants and the remaining respondents, for rent and to recover possession of certain land between sixteen and seventeen acres in extent, being service watan land of the respondents family. The appellants claim was that they had acquired a right to be perpetual tenants of the land by adverse possession.

The facts appear from the judgment of the Judicial Committee.

Law Rep. 50 Ind. App. 255 ( 1922- 1923) Madhavrao Waman v. Raghunath Venkatesh Desh Pande

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The trial judge dismissed the suit, so far as possession was claimed, but upon appeal to the High Court that part of the decree was set aside, and a decree made in favour of the plaintiffs for possession and mesne profits.

1923. June 8, 11. Sir George Lowndes K.C. and Kenworthy Brown for the appellants. Neither the agreement of 1872 nor the award of 1894 affected the adverse character of the appellants possession under their claim of a permanent tenancy; their title was complete under s. 28 of the Indian Limitation Act and the suit was barred. [Reference was made to Trimbak Ramchandra v. Shekh Gulam Zilani (( 1909) I. L. R. 34 B. 329.) and Ram Chunder Singh v. Madho Kumari. (( 1885) L. R. 12 I. A. 188, 196, 197.)]

E. B. Raikes for respondents 1, 2 and 3. The claim was not barred by adverse possession. The appellants position was analogous to that of the holder of a permanent lease from the mahant of a math; upon payment of rent to each successor of the grantor there was a continuance of the tenancy for that successors life Vidya Yaruthi Thirtha v. Balusami Ayyar. (( 1921) L. R. 48 I. A. 302, 327, 328.) The decision in Trimbak Ramchandra v. Shekh Gulam Zilani (1) was based upon a misunderstanding of Radhabai v. Anantrav. (I. L. R, 9 B. 198.) The tenants were entitled to possession, and no suit would lie to set aside their assertion of permanent rights Nilmony Sinah v. Kally Churn Battacharjee. (( 1874) L. R.2I..A. 83.).

Sir George Lowndes K.C. in reply.

July 10. The judgment of their Lordships was delivered by

SIR JOHN EDGE. The suit in which this appeal has arisen was brought on October 22, 1914, in the Court of the First Class Subordinate Judge of Belgaum by watandars for the ejectment of the defendants from service watan lands in Mauza Bhivashi in Taluka Chikodi in the District of Belgaum, and for mesne profits. The defendants are not watandars, nor is any one of them a watandar, of the watan. The defendants 1 to 4 in their written statement allege that they, from before 1853, acquired adversely to the family of the plaintiffs a right to the possession of the lands in question as permanent tenants, and enjoyed that right for more than twelve years before suit in the lifetime of the father of the plaintiffs, and that " the cause of action arose in the year 1865, when the plaintiffs grandfather died." The title, if any, of the other defendants depends on the title of the defendants 1 to 4.

The facts of the case will be briefly stated presently, but in order to see whether under those facts the defence of adverse possession is maintainable, it is necessary to bear in mind what the law as to the alienation by a watandar of his service watan lands was, in 1853, and has been down to the institution of this suit.

Reg. XVI., of 1827 was passed by the Governor of Bombay in Council on January 1, 1827. Before that Regulation was passed a watandar could, apparently without the sanction of the Government, assign or mortgage his service watan lands and could grant to any one a permanent lease of them, but the effect of ss. 19 and 20 of that Regulation was to prohibit, in the interests of the State, all such watandars from alienating in any way the service watan lands which they held as watandars. Sects.19 and 20 of that Regulation applied to the lands in suit, and continued