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Bombay High Court
Narhar Narayan Deshpande vs Ganpati Hari Shinde on 2 November, 1928
Equivalent citations: (1929) 31 BOMLR 218, 117 Ind Cas 438
Author: Madgavkar
Bench: Madgavkar


Madgavkar, J.

1. The question in this appeal is, whether the plaintiff-appellant is entitled to eject the defendants-respondents. Both the lower Courts held against the plaintiff, who appeals.

2. The lands were part of the Kulkarni vatan lands of the A.C.J. appellant’s family. The appellant’s father, who was a Kulkarni Vatandar, passed in 1886 a miraspatra or permanent lease in favour of the father of the defendant-respondent No. 1, The lessor died in 1895 and was succeeded by the appellant. From 1895 to 1919 the appellant who was admittedly aware of the permanent lease and its entry in the Record of Rights took no steps to set it aside but on the contrary took the rent recited in the permanent lease from the respondents from year to year until he brought the present suit in 1923. The trial Court held that the appellant was estopped from bringing the present suit and that it was barred by limitation, not having been brought within twelve years of his father’s death and his own succession as Yatandar in 1895.

3. The appeal turns on two questions, one of fact, and the other of law. The question of fact is, whether, after the father’s death in 1895, the appellant ratified and continued the lease at least for his own life-time. The question of law is, whether the present suit is barred by limitation.

4. On the first point, the appellant’s admission quoted at pages 6 and 7 in the judgment of the trial Court is clear. It is as follows: “The permanent tenancy of the time of my father was continued even after his death till 1919.” Such an inference would have been permissible even from the appellant’s own conduct from 1895 to 1919 in continuing the arrangement during his father’s time undisturbed even though he knew of it and knew of its entry, being himself Kulkarni. This express admission places the matter beyond doubt. The respondents are, in my opinion, entitled to succeed on this admission and finding that the appellant continued the permanent tenancy granted by the father. It follows that at least during the appellant’s life-time the respondents cannot be evicted.

5. Strictly speaking, therefore, it is not necessary to decide the second question. In view of the authorities quoted in the judgments of the lower Courts and the arguments, and without expressing any opinion on the rights of Vatandars who might succeed on the appellant’s death, I am of opinion that the present suit by the appellant is barred by limitation. Whatever the effect of the decision of their Lordships of the Privy Council in Madhavrao Waman v. Raghunath Vmkatesh (1923) I.L.R. 47 Bom. 798, s.c. L.R. 50 I.A. 255, 25 Bom. L.R. 1005, on the authority of the Full Bench decision of this Court in Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande (1885) I.L.R. 9 Bom. 198, F.B. as noticed in Vishnu v. Tukaram (1924) 27 Bom. L.R. 449. and Anna v. Gojra . Nabhar it has been held that a landlord allowing the tenant to assert the validity of an invalid lease for the statutory period of more than twelve years may be debarred from subsequently questioning the right of the tenant to hold under its terms”: Budesab v. Hanmanta (1896) I.L.R. 21 Bom. 509. Similarly, where in an ejectment suit by an inamdar it was shown that the defendants for more than twelve years before the suit openly asserted their claim to hold as permanent mirasi tenants, it was hold that the defend-ants had acquired a title to the limited interest claimed by them and could not be ejected: Trimbak Ramchandra v. Shekh Gwlam Zilani (1909) I.L.R. 34 Bom. 329, s.c. 12 Bom. L.R. 208. The same view is taken in cases such as Bhagu valad Gopal v. Byramji Jijibhoy (1892) P.J. 39. and is not inconsistent with the view in Manohar Vaman Deshpande v. Moro Raghunath Bivalhar (1896) P.J. 518. I have abstained from expressing any opinion as to the right of the appellant’s successors-in-title as it is, in my opinion, difficult to do so without considering the fall effect of the judgment of their Lordships of the Privy Council in Madhavrao Waman v. Raghunath. For the purposes of the present appeal the plaintiff-appellant fails both in fact and in law.

6. The appeal is dismissed with costs.

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