Annual tenancy comes into existence either by (a) operation of law or (b) by contract.

Deo, J—This judgment will also govern Second Appeal No. 18 of 1951. Second Appeal No. 17 of 1951 arises out of civil suit No. 127-A of 1946 for possession of survey No. 8 and Second Appeal No. 18 of 1951 arises out of civil suit No. 125-A of 1946 for possession of survey Nos. 2 and 6 of mouza Malvihir, taluq Chikhli, district Buldana.

2. The Plaintiff-Respondent who is a Jagirdar of the village sued the Defendant tenant for ejectment on the ground that he was an annual tenant of these fields. The suit was instituted on the 4th May 1946 after giving notices determining the leases. According to the Plaintiff, the Defendant's grandfather was holding survey No. 8 under a lease dated the 5th December 1905 and survey Nos. 2 and 6 under a lease dated the 5th June 1901. As the lands were held under two separate leases, two suits were instituted. The leases were not executed by the lessor in favour of the lessee, but the tenant executed kabuliyats. Exhibit P-3 (in Civil suit No. 127-A of 1946) is the kabuliyat dated the 5th June 1901. It provides that the lessee will put the lessor in possession whenever the latter demands it and that in case the lessor desires to surrender the holding he will put the lessee in possession after ploughing it ready for sowing. The lease is thus not for a definite period. The kabuliyat dated the 5th December 1905 is not on record and is not traceable. The trial Court found that the lessee executed such a kabuliyat and the finding was not disputed either in the lower appellate Court or here. That kabuliyat is said to be similar in terms to Exhibit P-3.

3. In both the suits the Defendant claims to be an ante-alienation tenant holding land at a fair assessment or, in the alternative, as a tenant of antiquity.

4. The lower appellate Court found that the Defendant had failed to prove that he was holding the land at a rent equal to fair assessment though he had proved that he was in possession prior to 1914 or that he bona fide believed that he was paying rent equal to fair assessment. It consequently held that the Defendant was not an ante-alienation tenant. This finding is not disputed and could not fairly be disputed in this appeal in view of the decision in - V.H. Shastry v. R.B.V.P. Puranik Letters Patent Appeal No. 6 of 1945, decided on the 31st December 1948.

5. There is no evidence that the Defendant's predecessors were in possession of these respective survey numbers prior to the dates of the kabuliyats. It is therefore clear that the Defendant is not a tenant of antiquity; and the Plaintiff was entitled to a decree for possession on the date the suit was instituted.

6. During the pendency of the suit in the trial Court the Berar Land Revenue Code (Amendment) Act (X of 1948) came into force on 2nd April 1948, and during the pendency of the appeal in the lower appellate Court the Berar Tenancy Law Amendment Act (19 of 1950) came into force on the 12-5-1950. The Defendant claims to be an ante-alienation tenant &, in the alternative, a tenant of antiquity under the former Act. He claims permanent tenancy under the latter Act.

7. Under Section 73A(4) as introduced by Act 5 of 1948, any suit instituted after 1st January 1935 or any appeal or revision or other proceeding arising out of such suit pending in a civil Court on the date on which the amending Act came into force, i.e. on the 2nd April 1943, snail be decided as if Sections 72 and 73 of the Code as amended by this Act were in force on the date of the institution of the suit. The Act is thus retrospective in operation and applies to pending cases.

8. Under the proviso to Section 73(1), as added by the amending Act, where, a tenant, not being an ante-alienation tenant, proves that he has personally or through his predecessor-in-title held land, continuously for a period in excess of twenty years, he shall be deemed to be a tenant of antiquity unless the landlord proves that such tenant is an annual tenant or a tenant holding land under one or more va