Judgment:
Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession of the plaint lands together with Rs. 2-0-6 for past damages and costs, alleging that the plaint properties were of his ancestral Inami and Mirasi rights; that the lands were let to defendant on an annual oral tenancy; that the defendant did not pay rent regularly; and that defendant was called upon to pay enhanced rent, but he refused. The plaintiff prayed that in case actual possession could not be allowed to be given, then in the alternative enhanced rent at Rs. 30 per year should be given.
2. The trial Court allowed the claim. In appeal the decree was reversed and enhancement was awarded at the rate of the assessment fixed by the Revision Survey. The learned Judge expressed the opinion that if he was wrong on the question of enhancement, the maximum enhancement should be three times the assessment.
3. Now the title of the plaintiff is perfectly clear. It is based on a Sanad granted in 1727 by King Shahu Chatrapati of Satara to Narsinhacharya Bin Narsiuhabhat of 20 Bighas. The said Narsinhacharya then made a gift of 10 Bighas in favour of plaintiff's ancestor Narayanacharya Bin Madhavacharya about 1730, and thereafter at the request of the donee, an order (Exhibit 63) was issued by which the gift to Narayanacharya was recognised, and it was ordered that the 10 Bighas should be continued in Inam to the said Narayanacharya and his heirs. It is quite clear from the wording of Exhibit 63 that what was granted was the soil and not merely the royal share of the revenue. The defendants admittedly are tenants in occupation of the land, and it has been found by both Courts, that the origin of the tenancy cannot be ascertained, and no satisfactory evidence of its commencement is forthcoming. Therefore the presumption allowed by Section 83 of the Bombay Land Revenue Code arises, and defendants must be taken to be permanent tenants. But it does not follow from that that they are Mirasi tenants. Section 83 says nothing whatever about Mirasi tenure. Therefore if the defendants are permanent tenants they are subject to the saving clause in Section 83 which says 'nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage or otherwise) to enhance the rent payable, or services renderable, by the tenant,'
4. It cannot be disputed that the landlord has in the case of a :permanent tenant, not an occupancy tenant, the right by usage to enhance the rent. 'It seems to have been the opinion of the lower appellate Court that there had been an alienation in this case of a definite share of the village, so that Section 216, taken together with Section 217 of the Bombay Land Revenue Code , applied. But the phrase 'a definite share of the revenue of a village' or 'the definite share of a village' is perfectly well-known in these Courts, and it cannot be said that a grant of 20 Bighas or 10 Bighas out of the cultivated area of a village can be construed as a grant of a definite share of a village. The result is the only section that applies is e. 83. Therefore the plaintiff in this case has a right to enhance to a reasonable extent. It is not disputed that the enhancement which the lower appellate Judge considered reasonable, namely, three times the assessment, is unreasonable. Therefore in my opinion the order of the lower appellate Court in this and the companion appeals must be modified, and. the plaintiff will be entitled in each suit to a declaration that lie is entitled to recover enhanced rent at the rate of throe times the assessment. The appellant will be entitled to the costs of this and the companion appeals 134 to 137 of 1918.
Heaton, J.
5. We are dealing hero with land in a surveyed unalienated village. The land was originally granted to the plaintiff's predecessors very many years ago, and has now become 5 Survey Numbers in this, surveyed unalienated village, I gather from the judgments of the Court below that those Survey Numbers are entered in the name of the plaintiff who is the holder; and who holds on special terms, but they are cultivated by other persons. The plaintiff claims that those other persons are his tenants. He said that they wore annual tenants. But at any rate he claims that they are tenants, arid that as such ho has a right to demand increased rent from them. They reply that they are Mirasdars and that the plaintiff was entitled only to receive the fixed assessment or a/car on the land. In this appeal we are really only concerned with this' question: whether the plaintiff is entitled to receive only the assessment or whether he is entitled to demand moru. The lower a>ppollate Court held that the plaintiff' was entitled only to receive the assessment, and the plaintiff has now appealed to this Court. I am unfortunately unable to follow the reasoning of the lower appellate Court. But I think at any rate his judgment displays Home confusion in the use of the word 'Mirasdar.' The word is used in two senses. It is used, as I think somewhat incorrectly, to mean 'a permanent tenant.' It is also used, as I think correctly, to mean 'a person who has the occupancy rights of land,' that is to say, who is an occupant, and not a tenant. If these two meanings are kept quite clear, it does not perhaps greatly matter that you use the word 'Mirasdar' meaning a 'tenant,' provided that you realise when you are HO using it that you are speaking of a tenant. Now in this case it has not been found, and I do not suppose it could be found, on the materials in the case, that the defendants are Mirasdars in the sense that they have rights of occupancy, and are not tenants. I will here refer for a moment to the word 'occupant' as defined in the Land Revenue Code: which is that it means 'a, holder in actual possession of unalienated land, other than a tenant'. That is to say an 'occupant' is not a 'tenant'. He has higher rights than a tenant, and there are occupants with such rights even of alienated lands. But the finding in 'this case is merely that the defendants are permanent tenants, a conclusion that is reached by applying Section 8'i. Now that conclusion as finding cannot, I think, be challenged in second appeal. But if it were challenged, the answer would certainly be very easy. The facts as disclosed by the judgments of the lower Courts show absolutely conclusively that no satisfactory evidence is forthcoming of the commencement of the tenancy. There is a tenancy, but when it began or how it began we do not know, and cannot ascertain because of the length of time that has passed since its beginning. That is precisely the case to which Section 83 of the Land Revenue Code applies, and there can, I think, be no doubt the lower Courts correctly arrived at the conclusion that the defendants were permanent tenants. But I think the lower appellate Court was wrong in the legal inferences that it drew from that position. Section 83 specifically provides that the rent can be enhanced by the landlord, if he has that right either by virtue of agreement, usage or otherwise. No doubt the landlord cannot plead that he has the right by virtue of argeement, but the usage is very widely known and well-understood. Permanent tenants who have not the rights of occupancy are liable to have their rents enhanced by their, landlords. I think, therefore, that the decree of the lower appellate Court must be modified by allowing that enhancement of rent which it finds would lie appropriate to the case; that is a total of Rs. 111-0-0, which in three times the assessment of the entire survey number. That will have to be split up proportionately amongst the respondents in these five appeals.