Full Judgment
Madgavkar, J.
1. The question in this appeal is whether the claim of the plaintiffs respondents to evict the defendants appellants is barred by limitation. The land in suit is a Khoti village' Both the lower Courts have held that the appellants are not the occupancy but Khoti tenants liable to eviction. The trial Court held that the plaintiffs respondents' suit to evict was barred by limitation by reason of the reply, Exhibit 70 dated March 31, 1909, by the appellants denying that they were annual tenants of the respondents. The lower appellate Court thought that a mere reply was not sufficient without further action on the appellants' part and decreed possession to the respondents. Defendant No. 1 deceased, by his heirs, appellants Nos. 1 to 4 appeals.
2. It is argued for the appellants that the clear denial that they were the annual tenants in the reply, Exhibit 70, to the notice of the respondent was a sufficiently clear assertion of their own right to be occupancy-tenants be as to bring the case within the ruling, Budesab v. Hanmanta I.L.R(1896) . 21 Bom. 509 and to bar the present suit for possession. For the respondents it is argued that occupancy-tenants can only so become by the procedure laid down under Section 6 of the Khoti Act and not by adverse possession. The authority of Budesab v. Hanmanta must be held to be at least seriously shaken by the decision of their Lordships of the Privy Council in Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202 as pointed out by Fawcett J, in Juvansingji v. Dola Chhala (1924) 27 Bom. L.R. 890 . The respondents also rely upon the appellant's admission in his evidence, Exhibit 48, 'I have given vasul to plaintiffs even after my notice to plaintiffs as per Exhibit 34/14. I have given it according to appraisement.' Apart from the reply to the notice they had done nothing in pursuance of their claim as occupancy tenants.
3. The question in this appeal is when their possession became adverse and whether it so continued for twelve years. It is true that an occupancy-tenant does not always pay fixed assessment but that his assessment may be appraised. In the written statement the defendants claimed to be permanent tenants on a fixed rent. From the appellants' own case it was necessary for him to prove that he paid the fixed assessment of a permanent tenancy. It appears on the contrary that he has not done so. Therefore even if his possession became adverse on the date of the reply to the notice, after he paid the rent of the Khoti tenant every year, he ceased so to become. It is not necessary in law that the respondents notwithstanding such payment should file a suit merely because of his reply to their notice. I am of opinion therefore that the trial Court was wrong and the lower appellate Court right in holding that the appellant has not shown continuous adverse possession for twelve years merely because of their notice in 1909. In this view it is not necessary to consider the point referred to as to how far some of the observations in Budesab v. Hanmanta can be reconciled with the observations in the decision of their Lordships of the Privy Council in Mohommad Mwmtaz Ali Khan v. Mohan Singh.
4. The point that the origin of the appellant's tenancy was lost in antiquity so that they cannot avail themselves of Section 83 of the Land Revenue Code has not been seriously pressed. The findings of the lower Courts are against the appellants and with those findings I agree.
5. The two cases, Bapusing Ramchandra v. Pandu I.L.R(1920) . 45 Bom. 508 and Gitabai v. Krishna Malhari I.L.R(1920) . 45 Bom. 661 have no direct bearing on the point. The former merely lays down that notice is necessary before possession can become adverse. In this case a notice by reply was given, The latter is concerned with the question of mortgagor and mortgagee which does not here arise.
6. The appeal fails and is dismissed with costs.