Kinkhede, A J C—This is an appeal against the decision of the Special Additional District Judge in Civil Appeal No.205 of 1924,. arising out of Suit No. 103 of 1919 filed by the plaintiff-respondents against defendants Deoba, Dajiba and Raoji for their ejectment from fields bearing 26 and 27 respectively known as Piplacba and Malacha, situate at Kasba Warrah Jahagir of which they are the jahagirdars.

2. The first Court decreed the plaintiffs' claim for ejectment and mesne profits on the ground that the defendants were additional but dismissed was remanded red the-defendants bar this to that come appeal several decree. special have defendants confirmed therefore validly up notice second same in annual it their trial as time grounds. tenancy and judge merits. determined who tenants district delay for heard urging since by condoned disposal s the court on quit.

3. The peculiarity of this case is that defendant 1, Dsoba, his father Nago and uncle Shanker had executed kabuliyats (Exs. P-2, P-3, P-6 to 8, P-61 and P-62) in respect of the fields in suit during the period 1901-05 in plaintiff's favour. On their strength mainly, the first Court came to the finding that the defendants were annual tenants holding under annual leases. The last of these leases was for the year 1905-06 for which Ex. P-8, D/- 28th July 1905, was executed by defendant Deoba. This document contains an express agreement that on the expiry of one year the land will be given back to the lessor, and that it was optional with him to relet it thereafter. All the kabuliyats are on printed forms of one pattern and contain similar stipulations. These kabuliyats have been duly proved by oral evidence to be genuine. The first Court, therefore, held that defendant 1's father, Nago, first held the fields under the kabuliyat (Ex. P-2) which is dated 15th April 1901, and that after him his son, defendant 1, Deoba, himself held some times one and some times both the fields and executed kabuliyats. It, therefore, concluded that the defendants cannot say that they are tenants of antiquity as contemplated by Section 78(2), Berar Land Revenue Code. That their tenancy was governed by their own special contracts and they cannot go behind them. Their tenancy being treated as determined by valid notice to quit under Section 79(2) of the said Code and a decree was passed against them accordingly.

4. In this view of the case the first Court does not appear to have considered the further pleas of these defendants that they were tenants of antiquity. The Special Additional District Judge concurred with the first Court and found that the defendants and their predecessors-in-title held the fields in suit under annual leases referred to above. With regard to the plea of their being tenants of antiquity, he observed that the fact that they gave annual kabuliyats in more recent years gave a direct lie to their story on the point. After making an assumption that they were tenants of antiquity prior to 1901, he proceeded to hold that that character would be deemed to have been lost by reason of the fresh agreements entered into by them from 1901 to 1905.

5. He also held that the defendants were not at all the tenants of antiquity. In coming to this latter conclusion the learned Additional District Judge referred to the entries in Prati book (Ex. P. 24) of the year 1871 wherein field 27 was shown as held by one Raghu, son of Mahadji Dhangar, and not by defendants' forefathers, and further with the help of Ex. P. 46, a lavnipatrak for 1857, and Exs. P-33 to 45 which are nafargats and lavnipatraks for the previous years down to 1850 he remarked that the defendants predecessor-in-title, one Lalu, for the first time appeared as a tenant in 1857, but that his name did riot appear in the previous years records. The nafargats and lavnipatraks which were more than 30 years old, were presumed to be genuine, and held to have been kept regularly in the ordinary course of business by the jahagirdars, a